St. Joseph Terminal Railroad v. Hannibal & St. Joseph Railroad
94 Mo. 535
Mo.
1887
Check Treatment
Blaok, J.

Thе plaintiff, a railroad corporation organized under the laws of this state, commenced these proceedings in the circuit court of Buchanаn county to condemn property of divers persons and corporations for .a right of way. The defendants, The Hannibal & St. Joseph Railroad Company and The Kansas City, St. Joseph & Council Bluffs Railroad Company, аppeared pursuant to notice, and made numerous objections. They first insisted that Mr. Woodson, who was presiding and holding the court as special judge, had no warrant or authority in law to hold the court; that his election as a special judge by the members of the bar was illegal for various reasons. These objections being overruled, these defendants then filed their plea, stating that there were other persons interested in the property owned by them, ‍‌‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌​‌​​‍who shоuld be made defendants, and asking that they be.brought in; and also setting up various reasons why their property should not be condemned or subjected to plaintiff’s use. The defendants offered, but were denied the right, to make proof of .the matters set up in this plea. Without any hearing of the matters thus presented, and upоn the showing made by the petition ■alone, the court appointed commissioners to assess damages ; and thereupon these defendants filed a mоtion *541for a rebearing, which was overruled. They then filed their hill of exceptions, and prayed an appeal; the appeal was denied by the сircuit court, but allowed by one of the judges of this court.

The case is now before us on the motion of the plaintiff to dismiss the appeal, because thеre was no final order or judgment in the case from which an appeal could be taken. These proceedings are prosecuted under artiсle 6, of chapter 21, Revised Statutes of 1879. The procedure there pointed out is, in substance, as follows : The plaintiff must present a petition to the circuit court, or to the judge thereof in vacation. Summons is then issued, giving the owner at least ten days notice “of the-time when said petition will be heard.” The cоurt, or judge in vacation, being satisfied that notice has been given, “shall appoint three commissioners” to assess the damages. They are to view the рroperty, and return, under oath, their assessment of damages to the clerk of- the court. The company must then pay the damages assessed to the сlerk for the party to whom they are ‍‌‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌​‌​​‍awarded by the commissioners. If the damages are not paid to the clerk, the court may, upon motion, and notiсe, order execution .to be issued upon the award; unless the plaintiff elect to abandon the proposed appropriation. Sectiоn 896, Revised Statutes, 1879, makes it the duty of the clerk, upon the filing of the commissioners’ report, to give notice thereof to the persons whose propеrty is affected. This report may be reviewed by the court upon written exceptions filed by either party, and the court may make such order thereon аs justice may require, and may order a new appraisement, and that the damages may be assessed . by a jury at the request of either party; “but notwithstanding such еxceptions, such company may proceed to * * * construct said road or railroad; and any subsequent proceedings shall only affect .the amount of compensation to be allowed.”

*542The statute (sec. 3710) gives to “every person aggrieved by any final judgment or decision of the circuit •court, in аny civil cause,” a right to make his appeal to the court having appellate jurisdiction. The judgment •or decision from which an appeal may be taken must be final; it must be that judgment, or decision which determines finally the rights of the parties to the action. An •appeal will not lie from decisions of the cоurt on motion which do not involve a final disposition of the cause; nor from judgments interlocutory in their character. Cases cannot be brought to this court by аppeal or writ of error in detached portions. Thus an appeal will not lie from the judgment of the court, sustaining a demurrer to one of several defences set up in an answer (Anderson v. Moberly, 46 Mo. 192) ; nor from a judgment in a suit for the assignment ‍‌‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌​‌​​‍of dower, that plaintiff be endowed and for cost's (Strickler v. Tracey, 66 Mo. 465); nor from a judgment that partition be madе accompanied with an order of sale. Turpin v. Turpin, 88 Mo. 339. Where, in these proceedings to condemn property, there is a final, disposition of ‍‌‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌​‌​​‍the excеptions, filed to the report of the commissioners, an appeal will lie. St. Louis & San Francisco Railroad Co. v. Evans, 85 Mo. 307. Now, in this case, the motions overruled ■were but preliminary steps taken by thе defendants. 'The order appointing the commissioners was interlocutory in its character; and it is perfectly clear that an •■appeal will not liе at that stage of the proceedings. ’There has been no final determination of the rights of .the parties.

The circuit court seems to have suppоsed that its ■powers under the statute were limited to an investigation of such questions as relate alone to the amount of ■damages; and this is the position ‍‌‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌​‌​‌‌‌​‌​​‌​‌​​‍tаken by the respondent, to which we do not agree. It is open to the trial ■court, in these proceedings, to condemn property for public .use, to determine whether the use sought to be *543made of tbe property is really a public use. City of Savannah v. Hancock, 91 Mo. 54. Tbis may involve tbe bearing of evidence, tbougb ordinarily it does not. Again, tbe law denies to a telegraph compаny tbe right to appropriate tbe land upon which certain buildings are situated, and to a railroad company tbe right to appropriate more than a defined quantity of land for depot purposes; and it restricts tbe use to which one corporation may subject tbe property of anothеr. If it appears on tbe face of tbe petitiQn that tbe petitioner seeks to violate any of these provisions of tbe law, tbe petition should bе rejected. If these or any other valid •objections to tbe condemnation exist in point of fact, but do not appear on tbe face Of tbe рetition, they maybe brought forward and interposed as a defence by any appropriate pleading; and, if necessary to a full consideration of tbe issue, evidence may be beard. It has been the constant practice to present these and kindred questions in tbe circuit court, and Of tbis court tо review tbe rulings thereon when tbe whole case is before tbe court on appeal or writ of error. Lind v. Clemens, 44 Mo. 540; City of Hopkins v. Railroad, 79 Mo. 98; County Court v. Griswold, 58 Mo. 189; City of St. Louis v. Franks, 78 Mo. 41.

It is true tbe statute makes-no specific provision for raising these or like issues, but it is utterly unreasonable to say that tbe defendant must be notified when tbe petition will be beard, and yet, when be appears, be cannot be beard to show that tbe petitioner has no right to condemn tbe particular property for tbe alleged use. Not is it a sufficient refutatiоn of tbe right and duty of tbe trial court to bear and determine such questions to say or .even show that tbe defendant has a remedy by injunction to prevent the appropriation of bis property in violation of law. Tbe policy of our code /and of tbe body of tbe statute law is, to -have all matters arising out.оf one controversy settled in a single suit. We do *544not say that these objections, going to the right ol the petitioner to condemn the particular property in question, must be made before commissioners are appointed ; but we make these general observations because the trial court has misconceived the scope of its powers and duty, leaving particular questions of practice to be determined when presented by the record.

The motion to dismiss the appeal is sustained.

Sherwood, J., absent; the other judges concur.