St. Louis, Kansas City & Colorado Railroad Company v. Lewright

Decision Date31 January 1893
Citation21 S.W. 210,113 Mo. 660
PartiesThe St. Louis, Kansas City & Colorado Railroad Company v. Lewright et al., Plaintiffs in Error
CourtMissouri Supreme Court

Error to St. Louis Circuit Court.--Hon. W. W. Edwards, Judge.

Reversed and Remanded.

John W Booth for plaintiff in error.

(1) This being a summary proceeding under the statute for appropriation of private property for public use, every matter necessary to confer jurisdiction must appear on the face of the proceedings. Railroad v. Young, 96 Mo 39, and cases cited; Railroad v. Campbell, 62 Mo 585; Railroad v. Carter, 85 Mo. 448; Mills on Eminent Domain, sec. 115; Railroad v. Story, 96 Mo. 611; Cory v. Railroad, 100 Mo. 282. (2) In such a proceeding the circuit court has no powers except such as are expressly given by statute. Gray v. Railroad, 81 Mo. 126. (3) The statute does not authorize the circuit court to render any judgment. Revised Statutes, 1869, ch. 42, art. 6. (4) The only power of the court is upon a proper petition to appoint commissioners, and to set aside the commissioners' report, and to order a new appraisement by a jury. Railroad v. Almeroth, 13 Mo.App. 91. The jurisdictional facts averred in the petition cannot be put in issue or tried. Railroad v. Almeroth, 13 Mo.App. 91. Hence the court cannot on the hearing of the petition obtain jurisdiction by entering of record findings of jurisdictional facts not averred in the petition. (5) In the case at bar the petition above shows on its face that the petitioner is incorporated under the laws of the state of Kansas, but it does not allege or show that said petitioner has any railroad in any state. Hence the petition is not sufficient to give the court jurisdiction, and the proceedings herein are void for want of jurisdiction in that they show no right in the petitioner (defendant in error) to exercise in this state the right of eminent domain. (6) In this proceeding the record should show what particular land it is that is sought to be taken. Railroad v. Carter, 85 Mo. 448; Mills on Eminent Domain, sec. 115. (7) The record does not show what particular lands are here sought to be appropriated, and therefore the proceedings herein are irregular and void. (8) The court having no power to render any judgment in this proceeding, it erred in rendering judgment for plaintiff in error for the damages awarded by the jury less the costs incurred in the cause after the filing of the report of the commissioners. (9) The court erred in awarding any costs against plaintiff in error.

E. D. Kenna and L. F. Parker for defendant in error.

(1) All jurisdictional facts appear on the face of the petition. (2) The question of the corporate existence and powers cannot be raised in this, a collateral proceeding. Mallet v. Simpson, 94 N.C. 37; Bank v. Matthews, 98 U.S. 623; Jones v. Habersham, 107 U.S. 174; Barnes v. Suddard, 117 Ill. 237. (3) The description of the property sought to be taken is sufficient. (4) Under the statutes of Missouri, a Kansas corporation has power to obtain its right of way by condemnation proceedings in the same manner and to the same effect as a domestic corporation. Gray v. Railroad, 81 Mo. 126; State v. Seay, 23 Mo.App. 623. (5) The question of adjudging the costs is a matter within the discretion of the trial court, which will not be interfered with by this court in the absence of evidence that it has been abused. (6) Error in adjudging costs is a matter of exception, and this court will not review the action of a trial court in the absence of an appropriate motion calling the attention of that court to the alleged error, and in the absence of exceptions saved to its ruling.

OPINION

Burgess, J.

This is a proceeding commenced by the defendants in error in the circuit court of Franklin county against the plaintiff in error for condemnation of a right of way through certain lands of plaintiff in error described in the petition. Inasmuch as a point is made by plaintiff in error on the sufficiency of the petition we here set it out in full, omitting parts not here material:

"St. Louis, Kansas City & Colorado Railroad Company, of the State of Kansas, plaintiffs, v. "William P. Lewright, James M. Lewright, Elijah McLean and I. B. Kitchen, defendants.]

"The plaintiff states that it is a corporation duly organized and existing under the laws of the state of Kansas for the purpose of constructing and maintaining a standard gauge railroad from a point in the western line of Seward county in said state of Kansas, near the center of said line eastwardly, through the counties of Seward, Ford, Comanche, Barbour, Harper, Sumner, Cowley, Choutaque, Linn, Elk, Wilson, Neosho, Crawford and Bourbon in said state of Kansas, to a point in the eastern line of said Linn county, near the center of said line; thence through the state of Missouri eastwardly, through the counties of Vernon, Bates, Henry, Johnson, Cass and Jackson, in the state of Missouri, to the union depot in Kansas City and said Jackson county; and from the point where said railroad runs northwestwardly to Kansas City aforesaid, eastwardly through the counties of Henry, Miller Osage, Maries, Gasconade, Franklin, St. Louis, to and into the City of St. Louis, Missouri, to, through and along the union depot in the said city of St. Louis, to the west bank of the Mississippi river at said city of St. Louis.

The plaintiff as authorized by the laws of the said states of Kansas and Missouri is about to construct, operate and maintain, and is now constructing, with the design and intention of operating and maintaining a standard gauge railroad over that part or portion of said road survey which passes through said county of Franklin, Missouri, in a general southwesterly direction from the town of Labadie in said county to the town of Union in said county.

That plaintiff has caused to be made an amended profile map of the route surveyed and adopted by plaintiff of that part of said railroad line in said Franklin county between the said towns of Labadie and Union.

That said amended profile map, made, certified to and filed in the office of the clerk of the county court of said county as aforesaid, shows the actual survey, location and distance of the roadbed through the several lots and tracts of land, and the congressional sections through which the road runs, and the number of miles, main and side tracks of said road on said portion of said railroad line in said part of said county.

That your petitioner has given written notice to all actual occupants of the lands hereinafter described of the defendants, over which the route of said railroad has been relocated and designated as aforesaid, of the location of said road through the same as shown by said amended profile map.

Plaintiff further states that as a common carrier and for the public benefit and convenience it needs and seeks to acquire for the purposes aforesaid and for the additional purposes of cutting and embankments, necessary for the proper construction and security of said railroad, a strip of land of the uniform width of one hundred feet in the following described tracts and parcels of land situated in said county of Franklin, between the said towns of Labadie and Union through and over which said railroad route is surveyed and located, as aforesaid, with the courses of said roadbed, and the number of acres and parts of acres sought to be appropriated, and which land is owned by the defendant, William P. Lewright, to-wit: The west half of the southeast quarter and the northeast quarter of the southeast quarter and southwest quarter of section 36, in township 44, and northwest quarter of the northwest quarter, section 1, township 43, all in range 1, east. That the center line of said strip of lands sought to be appropriated for the purposes aforesaid enters the north boundary line of said southeast quarter of said section 36, about one thousand and fifty feet west of the northeast corner of said quarter section, and is located on said lands in a general southwesterly and northeasterly direction, passing out of said section 36, township 44, range 1 east, one hundred feet east of the southwest corner thereof, into said section 1, township 43, range 1 east, and continuing in the same general...

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