Bennett v. Hall

• Decision Date: 23 November 1904
• Citation: 83 S.W. 439,184 Mo. 407
• Parties: BENNETT et al. v. HALL et al.
• Court: Missouri Supreme Court

83 S.W. 439

184 Mo. 407

BENNETT et al. v. HALL et al.

Supreme Court of Missouri, Division No. 1.

November 23, 1904.

HIGHWAYS — ESTABLISHMENT — JURISDICTION OF COUNTY COURT — APPEAL — TRIAL — RECORD — SUFFICIENCY — DAMAGES — DEDUCTION OF SPECIAL BENEFITS.

1. Original jurisdiction in proceedings to establish public roads is vested in the county court, and from its judgment an appeal lies to the circuit court, where the cause is tried de novo.

2. Where the county court, in proceedings for the establishment of a public road, finds that the petition therefor has been signed by freeholders, as prescribed by the statute, and that the notice required by the statute, has been given, it has jurisdiction, and its judgment is not void though it commits error in the proceedings, and the circuit court on appeal from such judgment acquires jurisdiction.

3. The statute relating to the establishment of public roads provides that notice shall be given by handbills put up in three or more public places in the township or townships, one to be put up at the proposed beginning and one at the proposed termination of the road. A proposed road ran through two townships. Three notices were posted, one at the beginning and one at the end of the proposed road, and the third at a public place on the line. Held a compliance with the statute.

4. Rev. St. 1899, § 9414, relating to the establishment of public roads, provides that the petition therefor shall be accompanied by the names of the resident owners of land through which the proposed road shall run, etc. In proceedings to establish a road, a map showing the names of the landowners, etc., accompanied the petition, and was examined at the trial. The map was not filed, but preserved by one of the petitioners. On appeal the map was identified as a paper used on the trial, but was not marked "Filed" by the clerk. Held, that it was the duty of the circuit court to consider the map as if it had been filed with the petition, it accompanying the petition within the meaning of the statute.

5. Where, in proceedings for the establishment of a public road, exceptions to the report of the commissioners awarding damages was filed, and a jury trial granted for the assessment of the damages, the fact that the record did not show that the commissioners were not of kin to any of the parties was immaterial.

6. In estimating damages for the taking of land for a public road the value of the advantages derived from the establishment of the road peculiar to the landowner may be deducted from the value of the land taken, and, if this results in awarding no damages, it is no violation of his constitutional right to establish the road without paying him in money the value of the land taken.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Statutory proceedings by Harris Bennett and others to establish a public road. From a judgment of the circuit court dismissing the proceedings rendered on appeal by W. F. Hall from a judgment of the county court establishing the road, the petitioners appeal. Reversed.

A. H. Waller and Will A. Rothwell, for appellants. Dysart & Mitchell and J. W. Wight, for respondents.

VALLIANT, J.

This is a statutory proceeding to open and establish a public road in Randolph county. The petition for the road, together with evidence that notice as required by the statute had been posted, was presented to the county court November 28, 1898, and at the same time a remonstrance by respondent Hall and others was filed. The matter was laid over until the next day, when it was taken up by the court, the evidence for and against the petition heard, and the conclusion reached that the proposed road was a public necessity and practicable, and the road and bridge commissioner was ordered to proceed to survey and lay out the road, taking rights of way, etc., and report at the next term, which he did. In his report the road and bridge commissioner gave the field notes of his survey, showing the location, the length, the width, and the course of the road, and the names of the owners of the land to be taken, specifying those who relinquished the right of way, and those who declined to do so, and the amount of damages that each of the latter demanded; also an estimate of the cost of the bridges. Upon the coming in of the report the court made an order reciting that the petitioners had deposited in court $250, the probable amount of the damages, and appointing commissioners to assess the damages, and report at the next term. These commissioners made their report in due time, finding no damages for either of the nonconsenting owners, whereupon the latter filed exceptions, and demanded, each, a jury trial, which was granted. A jury in each case was impaneled, and the verdict in each case was "No damages." The county court proceeded with the cause, and on March 1st, which was a day of the regular February term, 1900, entered its final judgment establishing the road as prayed. From that judgment the respondent Hall prosecuted his appeal to the circuit court of Randolph county. On application of respondent the venue was changed to the circuit court of Macon county, where final judgment was against the petitioners, dismissing their petition, and they appealed to this court.

In the trial in the circuit court at Macon the case seemed to turn on the question of the jurisdiction of the county court. It was there contended, and is here contended, that the record does not show the existence of certain facts which respondent thinks are essential to the jurisdiction of the county court. The dominant idea that seems to pervade the brief of the learned counsel for the respondent and to have prevailed in the circuit court is that the record of the county court must show affirmatively a condition, or a finding, or the existence of a fact as a precedent authority for each step taken or order made, and that, unless that record so shows, the whole proceeding is invalid beyond the power of the circuit court to remedy. We do not given our approval to that doctrine. Original jurisdiction in proceedings to open and establish public roads is vested in the county court, and from its judgment an appeal lies to the circuit court, where the cause is to be tried anew. The county court has jurisdiction of the subject in general, and when a proper petition is filed, and the notice required by the statute is given, the court has jurisdiction of that case in particular, and thereafter, in its conduct of the case, it may commit error or proceed irregularly, but such error or irregularity will not render the whole proceeding void, so as to vitiate even the proceedings on appeal in the circuit court. If the county court had no jurisdiction of the case in the beginning, the circuit court could acquire none by appeal, just as in case of an appeal from a judgment of a justice of the peace; but if the county court had jurisdiction in the beginning, and went wrong in its proceedings, the circuit court is no more bound by the errors or irregularities of the county court, nor hindered thereby in its jurisdiction, than it would be by those of a justice of the peace. The very object of an appeal to the circuit court is to correct the errors or irregularities of the inferior tribunal.

It is said that the record of the county court in a case of this kind must show every fact essential to its jurisdiction, and every fact essential to the judgment finally rendered, including the facts to be found by the court from the evidence adduced. But that is so only when the validity of the judgment itself is assailed collaterally. For example, if the final judgment of the county court is that the road be established, and if no appeal is taken therefrom, and if, in accordance with that judgment, it is attempted to lay out and open the road to the public, and resistance is offered by the landowner, it devolves on the officer invading the private property to show by the record of the county court itself that that court had not only jurisdiction to begin the trial of the case, but also that in all...