| Mo. | May 31, 1904
This is an injunctive proceeding, the purpose of which is to restrain and enjoin the judges of the county court and the road commissioners of Haw Creek township of Morgan county, from proceeding to open a public road through plaintiff’s land in conformity with an order and judgment of said court made and entered of record on the fourteenth day of
The facts, briefly stated, are about as follows:
At the time of the commencement of the proceedings to open the road and for many years prior thereto, plaintiff was the owner in fee of the land through which it was proposed to locate said road, having inherited a part of it, and acquired the balance by purchase in 1878 and 1886, at which times she was the wife of Haywood Spurlock, to whom she had been married for twenty-five years at the time of the trial, and by whom she had borne nine children.
Plaintiff was not a party to the proceedings in the county court, except to á remonstrance against the location and opening of the road, and as one of a number whose interest would be affected by it. She testified that she was not interviewed by the road commissioner; that she had never relinquished her right-of-way for said road; that she had not received a single dollar by way of damages for -the injury done to her lands.
;The road commissioner, D. W. Eaton, was permitted by the court, ovelr the objections of plaintiff, to testify that she had told him to see Mr. Spurlock (her husband) and whatever he did would be all right. This was denied by her. The court also, over objections of plaintiff, permitted the introduction in evidence of a county warrant delivered to Haywood Spurlock (plaintiff’s husband) and by him collected, in the sum of one hundred and forty dollars. The commissioners appointed by the county court to assess damages of par*247 ties failing to relinquish the right-of-way over their lands had assessed the damages of Haywood Spurlock at that sum. Plaintiff’s contention is that her husband Haywood Spurlock was entitled to damages by reason of his curtesy and other marital rights in his wife’s real estate; and that the damages resulting to the lands through which the proposed road was to be run by way of lessening the value of said lands belonged to her. The commissioners assessed no damages for plaintiff.
The commissioners appointed by the county court to assess the damages were Conway Jones, T. M. Hunter and J. W. Cooper. The report of the commissioners is only signed by two, viz, T. M. Hunter and Conway Jones. Conway Jones, one of the commissioners who was appointed to assess the damages, is the same Conway Jones who was at the time one of the road commissioners of the district.
Plaintiff insists that Conway Jones, being one of the road commissioners of the district, was not disinterested, and therefore the report of himself and T. M. Hunter is void. She also insists that by reason of the action on the part of the petitioners for said proposed new road, the county court, road commissioners, and the commissioners appointed by the county court to assess damages having ignored the rights of plaintiff, the temporary injunction should have been made permanent.
The first point presented on this appeal is with respect to the action of the court in admitting in evidence on the part of defendants, over the objection of plaintiff, evidence tending to show the agency of her husband, Haywood Spurlock, in regard to the location and opening of the road through her land, and the receipt by and collection by him of a county warrant for the sum of one hundred dollars in payment of damages awarded him for taking her land.
The title to the land was held by plaintiff in fee, and not as her separate equitable estate, and it was held
While the record shows that the proper notice of the presentation of the petition for the opening of the road was given and that plaintiff appeared and filed a remonstrance against the location and opening of the road, upon which a hearing was had, there was no relinquishment of the right-of-way by plaintiff, no assessment of damages, no tender of any compensation, no waiver.
By section 9416, Revised Statutes 1899, .it is made the duty of county courts to hear remonstrances against the location and opening of public roads, and such witnesses as the respective parties may produce as to the probable damages to the owners of the land through which said proposed road may run, and who have not consented to relinquish the right of way. It is also made the duty of a commissioner to be appointed by the court for that purpose to take the names of all resident owners of land through which said road may run, and who have not or will not give the right of %oay, and the amount of damages claimed by each one separately, together with the numbers of the land, etc. The following section, 9417, provides for the appointment of three disinterested freeholders of the county, who are not interested or kin to any of the parties asking damages on account of the location of said road, to act as a board* of commissioners to view the premises, hear complaints and assess damages, but the report does not show that the commissioner did take the names of all resident, owners of land (and especially that of the plaintiff)
The county court seems to have proceeded upon the theory that the land taken belonged to Haywood Spur-lock, the husband of plaintiff, whose only interest therein was by virtue of his marital rights only, when the plaintiff was in fact the owner of the fee, and entitled to compensation for the value of the land taken less benefits to the whole tract, if any. The names of Haywood Spurlock and Nannie Spurlock accompanied the petition for the road with others whose lands would be affected by the opening of the road, but they did not sign it, while the commissioners, appointed to view the premises described in the petition and to go personally upon the land and hear testimony in relation to damages sustained' by landowners by reason of the opening of the road,, awarded one hundred and forty dollars damages to Haywood Spurlock for taking his land, which in fact belonged to plaintiff and to which she had not given the right of way, but nothing whatever was awarded her, nor were her rights or interest in the land in any way adjudicated upon by the county courts.
In Carpenter v. Grisham, 59 Mo. l. c. 251, it is said:
“There can be no question, but that the taking of private property for the construction of highways, without any tender of compensation, or assessment of damages, when required by law and not waived by the party, affords good ground for'equitable relief. ” [High on Inj., sec. 400.]
This case was cited with approval in Whitely v. Platte County, 73 Mo. 30" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/whitely-v-platte-county-8006686?utm_source=webapp" opinion_id="8006686">73 Mo. 30, and in Jones v. Zink, 65 Mo. App. 409" court="Mo. Ct. App." date_filed="1896-02-25" href="https://app.midpage.ai/document/jones-v-zink-8261235?utm_source=webapp" opinion_id="8261235">65 Mo. App. 409.
But defendants say that plaintiff having filed a remonstrance against the opening of the road, the county court had jurisdiction of the subject-matter and of the person of plaintiff, and if the proceeding were in any way Irregular as to her she should have taken an appeal.
In Jones v. Zink, supra, it is said:
“The report of the commissioner fails to show a compliance with the statute in at least one important respect. Section 7798 of the Revised Statutes, 1889, as amended in 1893 (Laws 1893, p. 222), requires the commissioner to ‘take the names of all resident owners of land through which said road may run, and who have not or will not give the right of way, and the amount of damages claimed by each one separately. ’ ’ ’
It was held in that case that this was jurisdictional, and in proceedings of eminent domain every jurisdictional fact must affirmatively appear upon the face of the record. As it does not so affirmatively appear upon the fact of the record in this ease it must follow that the court was without jurisdiction.
In sustenance of defendants’ contention that plaintiff’s remedy was by appeal they rely upon the case of Railroad v. Maddox, 92 Mo. 469" court="Mo." date_filed="1887-04-15" href="https://app.midpage.ai/document/chicago--alton-railroad-v-maddox-8009050?utm_source=webapp" opinion_id="8009050">92 Mo. 469, in which it is said: “If, as is alleged in the reply, the commissioners appointed for the purpose of assessing damages assessed none to plaintiff, and made no report on the subject of plaintiff’s damages, this furnishes no ground for the interposition of a court of equity, for the reason that the statute affords a remedy by granting an appeal.” We think that case distinguishable from the one at bar, in that the question decided in that case was not jurisdictional, while in the case at bar it was, and we have been unable to find any decision to the contrary. So with the case of Searcy v. Clay County, 176 Mo. 493" court="Mo." date_filed="1903-06-30" href="https://app.midpage.ai/document/searcy-v-clay-county-8014752?utm_source=webapp" opinion_id="8014752">176 Mo. 493, also relied
Our conclusion is that the judgment should be reversed and the cause remanded for further trial in accordance with the views which we have expressed. It is so ordered.