Bennett v. Woody

• Decision Date: 09 February 1897
• Parties: BENNETT et al. v. WOODY.
• Court: Missouri Supreme Court

38 S.W. 972

137 Mo. 377

BENNETT et al. v. WOODY.

Supreme Court of Missouri, Division No. 1.

February 9, 1897.

HIGHWAYS — PROCEEDINGS TO ESTABLISH — DEFENSE — WAIVER — JUDGMENT — RES JUDICATA — INSTRUCTIONS — DAMAGES — BURDEN OF PROOF.

1. An appeal lies from the judgment of the county court assessing the damages for opening a highway, as well as from the final judgment ordering the road to be established and opened. Rev. St. 1889, § 7801.

2. In a proceeding to establish a public road, it is too late to set up the defense in the circuit court, on appeal from the assessment of damages, that the proceeding is barred by a judgment in a previous proceeding to establish the same road.

3. A judgment establishing a highway on payment of respondent's damages and costs was not a bar to another proceeding to establish the same road, where such damages and costs had not been paid.

4. An instruction which withdrew from the jury consideration of damages to the tract of which the land taken formed a part, and required them to deduct from the landowner's damages the special benefits enjoyed by him, whether they were caused by establishment of the road or were benefits to the tract on which the road was located, is erroneous.

5. Where a pond and hedge would be destroyed, and fences would have to be removed, a charge that the measure of damages was the difference between the value of the land taken and the cost of moving the fence and injury to the pond, and the benefits peculiar to the land alone not taken, was erroneous, as ignoring the damages to the hedge destroyed, and the damage to the tract by reason of the location of the road on it, other than the two items mentioned in the charge, and assuming that the land not taken was peculiarly benefited.

6. Under Const. art. 2, § 21 (providing that "private property shall not be taken or damaged for public use without just compensation"), in proceedings to establish a public road, the burden is on petitioner to show that the landowner is compensated by benefits.

Appeal from circuit court, Montgomery county; E. M. Hughes, Judge.

Proceeding by G. L. Bennett and others against S. L. Woody to establish a public road, commenced in the county court, and taken on appeal by defendant to the circuit court. From a judgment on a verdict of no damages, defendant appeals. Reversed.

W. W. Fry and W. A. Edmonson, for appellant. N. D. Thurmond, for respondents.

BRACE, J.

This is a proceeding commenced in the county court of Callaway county, to establish a public road on the land of the defendant, tried in the county court, on his exceptions to the report of the commissioners, assessing his damages, and resulting in a verdict of no damages, from the judgment of the county court on which he appealed to the circuit court of said county, from which court it was thence taken, by change of venue, to the circuit court of Montgomery county, where it was tried anew, with the same result. From the judgment on this last verdict, the defendant appealed to the St. Louis court of appeals, from which court the case has been transferred to this court (on the authority of Railroad Co. v. Rombauer, 124 Mo. 598, 28 S. W. 75), as involving title to real estate.

1. The respondents contend that the appeal should be dismissed, because the appeal from the county court to the circuit court was premature, in that it was taken from the judgment on the assessment of damages in the county court before any order made establishing the road. We do not think this contention can be maintained. By section 7801, Rev. St. 1889, it is provided that "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 as a supersedeas of the proceedings of the county court." By the plain terms of this statute, an appeal is contemplated as well from the judgment of the county court assessing the damages as from the final judgment ordering the road to be established and opened, which can be made only after the county court shall have found that "the use to which said premises are sought to be appropriated are of a public use; that the proposed road * * * is of sufficient public utility to justify the payment of damages awarded," and the damages are paid to the owner or into court for his use. Section 7800. The fact that the appeal from the judgment assessing damages is not to operate as a supersedeas to these subsequent proceedings in the county court is, apart from the wording of the section, a cogent reason for holding that the right to appeal was not intended to await thereon. Hook v. Railway Co., 133 Mo. 113, 34 S. W. 549.

2. The errors assigned for reversal by the appellant are the giving and refusing certain instructions, and the rejection of his evidence in support of the following plea: "Now comes the claimant, S. L. Woody, and makes answer, and says that the petitioners herein, in 1882, and again in 1883 and 1884, petitioned for the location for the identical road herein petitioned for to the county court of Callaway county, Missouri; and the court, on hearing the same, established said...