Bernard v. Callaway Cnty. Court

• Decision Date: 31 January 1859
• Parties: BERNARD et al., Plaintiffs in Error, v. CALLAWAY COUNTY COURT, Defendant in Error.
• Court: Missouri Supreme Court

28 Mo. 37

BERNARD et al., Plaintiffs in Error,

v.CALLAWAY COUNTY COURT, Defendant in Error.

Supreme Court of Missouri.

January Term, 1859.

1. Under the general law concerning roads and highways, (R. C. 1855, p. 1390, § 20,) only those persons who own land through which the route of a state road is located and who consider themselves aggrieved by the assessment of the commissioners can object in the county court to the approval of the report of the commissioners locating the road.

2. Parties aggrieved by the location of a state road have a right of appeal to the circuit court. Since, however, there is no provision authorizing the signing of bills of exceptions in such cases, the circuit court must affirm or reverse on the record alone.

Error to Callaway Circuit Court.

Hardin, for plaintiffs in error.

I. Defendants had the right of appeal from the county to the circuit court. (The county of Cooper v. Geyer, 19 Mo. 257.)

II. The appeal was taken in due form of law and the court committed error in dismissing the appeal.

SCOTT, Judge, delivered the opinion of the court.

This was a proceeding under a special act, passed February 16, 1857, (Sess. Acts, 1857, p. 811,) entitled “An act to establish a state road in Callaway and Audrain counties.” The act directed that the contemplated road should be opened and kept in repair under the law in force at the time in the counties in which it is located. It does not appear that any other than the general road law was in force in those counties. The commissioners appointed by the aforesaid act made their report to the Callaway county court at the December term, 1857; whereupon, as the record states, Thomas Bernard and others appeared by their counsel and objected to the approval of said report, but their objections were overruled and the report approved. An appeal was thereupon taken to the circuit court, where the appeal was dismissed, and this writ of error was sued out.

Admitting that the objectors were entitled to a writ of error on the judgment of the circuit court, there is nothing preserved in the record from which this court can see that they have been aggrieved by the action of the commissioners. The twentieth section of the second article of the act concerning roads and highways (R. C. 1855, p. 1390) provides that any person owning lands through which the route of a state road is located, who shall consider himself aggrieved by the assessment of the commissioners, may, by himself or agent, at the next term of...