Cape Girardeau & Scott Cnty. Macadamized Rd. Co. v. Dennis

• Decision Date: 30 April 1878
• Parties: CAPE GIRARDEAU AND SCOTT COUNTY MACADAMIZED ROAD COMPANY v. DENNIS et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 438

CAPE GIRARDEAU AND SCOTT COUNTY MACADAMIZED ROAD COMPANY

v.DENNIS et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Cape Girardeau Court of Common Pleas.--HON. H. G. WILSON, Judge.

Lewis Brown for appellant.

Houck & Ranney for respondents.

HOUGH, J.

This was a proceeding instituted in the circuit court of Cape Girardeau county, at its May term, 1874, by the Cape Girardeau & Scott County Macadamized Road Company, to condemn a right of way through the defendants' land. To the petition of the plaintiff, which contained all the necessary averments, the defendants, at the November term, 1874, filed an answer, alleging therein, in bar of plaintiff's right to condemn the proposed right of way, that the plaintiff and the defendants had entered into an agreement for the construction of plaintiff's road on another line, in consideration of a grant by the defendants of a right of way over such line; and that said road had been partially constructed on said line. These averments were denied by the plaintiff. The court thereupon heard the testimony adduced by the parties respectively on the issues thus made, found for the plaintiff thereon, and appointed three commissioners, as provided by law, to assess the damages which would be sustained by the defendants by reason of the appropriation of their land for the construction of the plaintiff's road. The commissioners made report and exceptions thereto were filed by the defendants, which were overruled by the court. These exceptions are not incorporated in the bill of exceptions. The court approved the report and the defendants moved for a new trial on the following grounds: 1. Because the judgment of the court in overruling the exceptions of the defendants was against the evidence. 2. Because the plaintiff was incorporated by a special act, which did not authorize the present proceeding, and the general statute authorizing the condemnation of land applied only to corporations created under the general corporation law, and not by special act. 3. Because the plaintiff was bound by its contract to construct its road elsewhere. Other objections were made during the course of the proceedings, but as they are not embraced in the motion for a new trial, they need not be mentioned.

1. CONDEMNATION OF RIGHT OF WAY: prior contract for location: roads.

The court overruled the motion for a new trial, and the defendants have appealed. In regard to the last ground, it may be said that the court found from the testimony, which was conflicting, that there was no such agreement. But even if such agreement had been established, we do not think it would conclude the plaintiff in the present proceeding. The construction of the road upon the line alleged to have been agreed upon had not been completed, and, in such cases, the right to change the location seems ordinarily to be unquestioned, subject, of course, to the right of the other contracting party to maintain an action for such damages as he may have sustained by reason of the breach of the agreement. And it may be that even after the completion of a road, supervening necessities may justify the exercise of the right of eminent domain under the authority...