Anderson v. Pemberton

• Decision Date: 07 June 1886
• Citation: 89 Mo. 61,1 S.W. 216
• Parties: ANDERSON and others v. PEMBERTON and others.
• Court: Missouri Supreme Court

1 S.W. 216

89 Mo. 61

ANDERSON and others v. PEMBERTON and others.

Supreme Court of Missouri.

June 7, 1886.

1. CONSTITUTIONAL LAW — EMINENT DOMAIN — EXERCISE OF RIGHT.

In exercising the right of eminent domain everything which the law has prescribed is to be regarded as essential, and all statutory requirements must be strictly complied with.

2. WAYS — PROCEEDINGS TO LAY OUT — OWNERSHIP.

The actual occupant of land, improving the same, and paying taxes thereon, through which a public highway is to pass, even though claiming the land merely by verbal gift, is the owner thereof, and a necessary party to condemnation proceedings, under Missouri statutes. Act 157, Sess. 1883.

3. SAME — JURISDICTION.

Condemnation proceedings must stand or fall as an entirety, and if there is any one party in interest over whom jurisdiction has not been obtained, the whole proceeding is void.

BLACK, J., dissents.

Appeal from Johnson circuit court.

Proceedings before a county court to condemn private lands for a public highway.

S. P. Sparks, for respondents, R. R. Anderson and others. O. L. Houts, for appellants, S. W. Pemberton and others.

SHERWOOD, J.

This appeal arises out of proceedings instituted in the county court of Johnson county for the opening of a new road, and those proceedings were had under the provisions of the act of 1883, (Sess. Acts, 157.)

1. Those provisions require that commissioners be appointed for the assessment of damages, and that such commissioners make their report on or before the first day of the next regular term of the county court. Those provisions also require that should the premises of more than one owner or other persons interested be included in the same proceedings or order of court, then the damages shall be stated separately, together with the name of each person interested, and a specific description of the property or premises for which such damages are assessed. There were several owners of the premises in question, and the statutory provisions were not complied with: (1) The report contained no description of any land; (2) nor was it filed on or before the first day of the next regular term of the county court, nor were the commissioners qualified, nor did they enter on the discharge of their duties, until several days after the term commenced. Their appointment had thus become functus officio, and had spent its force. If they could enter on the discharge of their duties several days after they were required by the statute to make report, and return in writing showing those duties had been performed, then might they do so several weeks, months, or years after the statutory designated time. The behests of the law cannot thus lightly be disregarded; the statute must be followed in these proceedings. And so it has been held that, where a similar order had expired before its execution, all subsequent proceedings were unauthorized. Road in Reserve, etc., 2 Grant, Cas. 204. And it was holden also, in the instance just cited, that the confirmation of the report nunc pro tunc would not cure the prior failure to comply with the law. And this court has uniformly spoken in no uncertain tones respecting the exercise of the right of eminent domain, one of the highest...