Aldridge v. Spears

• Decision Date: 30 June 1890
• Parties: ALDRIDGE et al. v. SPEARS et al.
• Court: Missouri Supreme Court

14 S.W. 118

101 Mo. 400

ALDRIDGE et al. v. SPEARS et al.

Supreme Court of Missouri.

June 30, 1890.

HIGHWAYS — ESTABLISHMENT — APPEAL.

By act of March 31, 1883, (Laws Mo. 1883, p. 158,) applications for the establishment of roads must be made to the county court, and it is made the duty of the court to hear the petition, remonstrances, and witnesses, and by section 36 of that act, appeal is allowed from a judgment assessing damages, or for opening, changing, or vacating any road. Held, that no appeal lies from the decision of a county court refusing to make an order opening a road, as the question is not a judicial one.

Error to circuit court, Pettis county; RICHARD FIELD, Judge.

Charles E. Yeater, for plaintiffs in error. Jackson & Montgomery, for defendants in error.

BLACK, J.

Aldridge and others petitioned the county court of Pettis county, at its November term, 1886, for the establishment of a new road and the vacation of an old one. Upon consideration of the petition and the remonstrances filed by the objectors, the court found that the opening of a new road and the change of the old one, as prayed for, was not a public necessity, and refused to make an order directing the road commissioner to survey the route of the proposed road, and refused to vacate the old one. The petitioners appealed to the circuit court. That court proceeded to hear the case anew on the evidence, and found that the proposed road was one of public necessity, and ordered the road commissioner to mark out the same. The objectors appealed to the Kansas City court of appeals, and that court came to the conclusion that an appeal from such an order would not lie from the county to the circuit court. The opinion of the Kansas City court of appeals being in conflict with that of the St. Louis court of appeals in Cox v. Dake, 34 Mo. App. 80, the cause was certified to this court. Several questions have been discussed at the bar of this court and in the briefs, but in the view we take of the case it will be sufficient to consider the single question whether the petitioner had any right of appeal from the county to the circuit court. By the act of March 31, 1883, (Laws 1883, p. 158,) applications for the establishment of roads, or the change of roads, must be made to the county court by the requisite number of freeholders. It is made the duty of the county court to hear the petition, the remonstrances, if any, and such witnesses as the parties may produce, and if the court shall be of the opinion that the facts justify it, then an order is to be made requiring the road commissioner to view, survey, and mark out such road, and report to the next term. He is to take relinquishments of right of way, and if persons through whose land the new road or change of road shall run refuse to relinquish, then the court must appoint commissioners to assess damages. The ninth section goes on to say: If, upon the report of the road commissioner, and the report of the commissioners appointed to assess damages, the court shall be satisfied that the proposed road is of sufficient utility to justify the payment of the damages, warrants shall be drawn for the damages and delivered to the persons entitled thereto, or deposited in court for them Exceptions may be filed to the report awarding damages, and the county court may award a new appraisement of damages by a jury; "but, notwithstanding such exceptions, such road may be established and opened and worked, and any subsequent proceedings shall only affect the amount of compensation or assessment to be allowed as damages." Section 36 enacts: "In all cases of appeals being allowed from the judgment of the county court assessing damages, or for opening, changing, or vacating any road, the circuit court shall be possessed of the cause, and shall proceed to hear and determine the same anew; but no commissioner shall be appointed by the circuit court, nor shall any appeal prior to the determination thereof in the circuit court operate...