Lingo v. Burford

• Citation: 112 Mo. 149,20 S.W. 459
• Parties: LINGO v. BURFORD.
• Decision Date: 14 November 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 459

112 Mo. 149

LINGO v. BURFORD.

Supreme Court of Missouri.

November 14, 1892.

OPENING HIGHWAYS — COMPENSATION TO LANDOWNERS.

1. A finding by a county court, in proceedings to open a road, that "due notice had been given according to law," is conclusive evidence, as against a collateral attack in another court, that there has been a compliance with Rev. St. 1889, § 7797, providing that notice of an intended application for a new road shall be given by handbills put up in three or more public places in the township or townships through which the proposed road shall run, at least 20 days before a regular term of the county court at which the petition is presented. Sherwood, C. J., dissenting. 18 S. W. Rep. 1081, affirmed.

2. Rev. St. 1889, § 7798, provides that the commissioner of roads shall "take the relinquishments of the right of way of all persons who may give such, and shall state in his report the names of all persons who have failed or refused to give right of way, and the amount they demand therefor." Held, that a report that plaintiff had refused to give the right of way, and that he demanded $100 therefor, was sufficient; the commissioner not being authorized to agree with the plaintiff on a price for the right of way. Sherwood, C. J., dissenting.

3. It is proper for the jury, when assessing damages to plaintiff by the opening of a road through his land, to take into consideration the benefits which will accrue to plaintiff by such opening, and, if they are great enough to counterbalance the injury, all damages are properly denied him. Sherwood, C. J., dissenting. Barclay and Thomas, JJ., expressing no opinion. 18 S. W. Rep. 1081, affirmed.

In banc. Error to circuit court, Johnson county.

Suit by H. J. Lingo against W. H. Burford, as road overseer, to obtain an injunction to restrain him from opening a public road over and through lands of plaintiff. Injunction granted, and defendant brings error. Reversed.

S. P. Sparks, for plaintiff in error. W. W. Wood, for defendant in error.

GANTT, J.

This is a proceeding by injunction, commenced in the circuit court of Johnson county, by which the plaintiff sought to restrain the defendant, Burford, as road overseer, from opening a public road over and through lands of the plaintiff, under an order of the county court. The material averments of the petition are that "no legal notice was ever given of the presentation of a petition for such an order; that the county commissioner did not survey, view, or mark out a roadway over said land, or take relinquishments of right of way for same, or ask for such relinquishments, or make any report of his action, as the law requires, and that plaintiff has never in fact relinquished the right of way for a road over said land; that there has never been any assessment of damages to be done the land of the plaintiff by the establishment of said road; that the pretended order of record establishing said road is void upon its face, for want of jurisdiction to make the same." The plaintiff, to sustain his case, introduced the record of the proceedings in the county court. The petition on its face alleged that the petitioners were freeholders of Chilhowie and Post Oak townships, through which said proposed road ran; that it was signed by at least 12 freeholders of said township, and it specified the proposed beginning, course, and termination, with not less than two points named on the direction. Section 7796, Rev. St. 1889. It was presented and publicly read at the regular August term of the county court, 1887. The record made by the county court at that term is as follows: "Now, at this day, is presented to the court the petition of A. J. Dunham et al., praying for the establishment of a public road forty feet in width in Chilhowie and Post Oak townships, to run as follows: [Here follows a minute description of the route.] And the court having heard said petition publicly read, and it being proven to the satisfaction of the court that it is signed by at least twelve freeholders of Chilhowie and Post Oak townships, three of whom are of the immediate neighborhood of said proposed road, and that due notice has been given according to law, and that said proposed road is of public utility and practicability, it is ordered that the county commissioner proceed to view, survey, and mark out said road, and report the practicability of said road, together with the distances and situation of the ground, the names of the parties granting the right of way, and the estimated cost of building needed bridges, at the next regular term of this court." At the next November term, the county road commissioner filed his report, showing the landowners who had relinquished the right of way and those who had not. Among those who had failed or refused to relinquish, he reported the plaintiff, H. J. Lingo, and that he claimed $100. Thereupon the county court, as required by section 7799 Rev. St. 1889, (section 8, p. 247, Laws 1887,) by its order of record, appointed three disinterested freeholders to act as a jury, view the premises, and assess the damages of those who had failed or refused to relinquish the right of way. At the next February term, the commissioners thus appointed made their report, in which they returned that they had viewed the premises and assessed the damages of each tract of land separately, and the report as to the plaintiff was as follows: "To H J. Lingo, at end N. E. N. E. section 26, township 44, and range 26, no damages." Thereupon the court made the following order: "Now, at this day is taken up the report of the commissioners heretofore appointed to assess the damages resulting to the premises of L. P. Fisher, H. J. Lingo, and others, by reason of the establishment of a public road petitioned for by A. J. Dunham et al., from which the court finds that said commissioners have viewed the premises of the parties aforesaid, and have allowed no damages; and no objections being filed to the verdict of said jury, and it appearing to the court that said proposed road is of sufficient utility to justify opening and improving the same for public travel, it is therefore ordered that a public road forty feet in width be opened, and run as follows, [describing the route particularly.]" The circuit court granted a perpetual injunction against the road overseer, from which he appeals to this court. The contention arises as to the jurisdiction of the county court to order the road opened. Plaintiff in error insists that the record of recital of the county court "that due notice has been given according to law," nothing further appearing, was sufficient in this collateral proceeding to show jurisdiction in that court, so far as it was essential to show notice, whereas defendant in error maintains that the recital is insufficient.

That the county court was only authorized to entertain the proceeding to condemn plaintiff's land for the road, upon notice given as required by the statute, (section 7797,)¹ is not to be questioned, but it is a well-settled principle that, where the jurisdiction of an inferior court depends upon a fact which said court is required to ascertain and settle by its decision, its decision is conclusive as against a collateral attack. Jackson v. State, 104 Ind. 516, 3 N. E. Rep. 863, In re Grove Street, 61 Cal. 438; People v. Hagar, 52 Cal. 171; Shawhan v. Loffer, 24 Iowa, 217; Porter v. Purdy, 29 N. Y. 106; Lewis, Em. Dom. § 605; Black, Judgm. § 288; Elliott, Roads & S. p. 243; State v. Smith, 105 Mo. 6, 16 S. W. Rep. 1052.

The county court had original exclusive jurisdiction to hear and determine, upon a proper petition and due notice, whether a new public road should be established over the route designated in the...