State ex rel. State Highway Comm. v. Day

• Decision Date: 02 February 1931
• Docket Number: No. 28513.,28513.
• Citation: 35 S.W.2d 37
• Parties: THE STATE EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, Appellant, v. A.N. DAY and MYRTLE DAY, His Wife, and FEDERAL LAND BANK OF ST. LOUIS, Holder of Mortgage.
• Court: Missouri Supreme Court

35 S.W.2d 37

THE STATE EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, Appellant, v. A.N. DAY and MYRTLE DAY, His Wife, and FEDERAL LAND BANK OF ST. LOUIS, Holder of Mortgage.

No. 28513.

Supreme Court of Missouri.

Court en Banc, February 2, 1931.

Appeal from Audrain Circuit Court. — Hon. Emil Roehrig, Judge.

TRANSFERRED TO ST. LOUIS COURT OF APPEALS.

John W. Mather, Wilkie B. Cunnyngham, Ralph M. Eubanks, Jean Paul Bradshaw and B.F. Boyer for appellant.

(1) The Supreme Court has jurisdiction of this appeal because this case involves title to real estate. Constitution, art. 6, sec. 12; Constitution, art. 6, Amendment of 1884; State ex rel. Railroad v. Rombauer, 124 Mo. 598; Railroad v. Schweitzer, 246 Mo. 128; Railroad v. Wyatt, 223 Mo. 347; Moberly v. Lotter, 266 Mo. 457; Dillard v. Anderson, 282 Mo. 436; City of Tarkio v. Clark, 186 Mo. 294. (2) The Supreme Court has jurisdiction of this appeal because a state officer is a party. Constitution, sec. 12, art. 6, Amended 1884; State ex rel. Blakemore v. Rombauer, 101 Mo. 499; State ex rel. Rucker v. Hoffman, 313 Mo. 667; State ex rel. School Dist. v. Ingram, 317 Mo. 1141; Laws 1921, 1st Ex. Sess., pp. 131 to 167; Laws 1929, p. 356; Art. IV, sec. 44a, Constitution as Amended 1928; State ex rel. v. Scott, 182 N.C. 870; 36 Cyc. 852; State ex rel. Holmes v. Dillon, 90 Mo. 229; Ramsey v. Van Meter, 313 Mo. 670; State ex rel. v. Higgins, 144 Mo. 410; Milling Co. v. Blake, 242 Mo. 23; State ex rel. v. Smith, 131 Mo. 176; State ex rel. Gardner v. Hall, 282 Mo. 425; State ex rel. v. Hackmann, 282 S.W. 1007; State ex rel. Highway Commission v. Bates, 296 S.W. 418.

W.W. Botts and Abbott, Fauntleroy, Cullen & Edwards for respondents.

We are very strongly impressed with the argument made by counsel for appellant in support of its contention that this court has jurisdiction. (a) The theory that jurisdiction attaches on account of title to land being involved is very ably and cogently presented by appellant's argument and we shall not discuss that phase of it. (b) The second ground of jurisdiction, to-wit, that one of the parties hereto is a "state officer," seems not to have been decided in any case where the State Highway Commission was a party, and we cannot escape the conclusion that jurisdiction may be maintained in this court on that theory.

RAGLAND, C.J.

This case was first heard in Division Number One. From the opinion prepared following its submission there we take the following general statement of the case:

"This proceeding was instituted in the Circuit Court of Audrain County to condemn certain land belonging to defendants, who appear here as respondents, for right of way and drainage purposes in the location and construction of a certain state highway. The amount of land sought to be taken for right of way purposes was 5.28 acres; that sought for a channel for drainage purposes, fee not to be taken, was a strip not more than five feet in width extending at right angles from the outside right-of-way lines of said road at a certain station for a distance of fifty feet each way. This highway was located across defendants' 330-acre farm, which consisted of five adjoining forty-acre tracts, the west line of which extended one and one-fourth miles north and south; and three forty-acre tracts and about ten acres off of the north side of another forty-acre tract, all contiguous, immediately east of and adjoining the north four of the five forty-acre tracts first mentioned. The highway in question entered defendants' land near the middle of the south line of said ten-acre tract, thence extended in a northwesterly direction to the northwest corner of the forty-acre tract lying immediately north of said ten-acre tract, thence in a northwesterly direction across a contiguous forty-acre tract to the northwest corner thereof. The location of the state highway thus substantially bisected defendants' farm. The principal buildings and improvements were located slightly northeast of the center of the farm and were north and east of the location of the state highway. Commissioners were appointed and they returned an award of $727.50 in favor of the landowners. All parties filed exceptions to this award, and a jury trial was had, resulting in a verdict of $1500 for defendant landowners. Plaintiff appealed from the judgment entered thereon."

The judgment appealed from is as follows:

"It is therefore considered, ordered and adjudged by the court that the defendants and each of them have and recover of and from the plaintiff, the State Highway Commission of Missouri, the sum of $1,500, the amount found by the jury to be due in this cause, and the cost in this suit expended, and execution issue therefor."

The question of jurisdiction of the appeal was raised in Division by the court of its own motion. It is now insisted by both parties that our jurisdiction is maintainable on either of two grounds, namely; (1) that the case involves title to real estate, and (2) that a state officer is a party. The question will be considered with reference to each, in the order named.

1. It is to be noted that the condemnor is the...