Cnty. of Cooper v. Geyer

• Decision Date: 31 January 1854
• Parties: THE COUNTY OF COOPER, Respondent, v. GEYER, Appellant.
• Court: Missouri Supreme Court

19 Mo. 257

THE COUNTY OF COOPER, Respondent,

v.GEYER, Appellant.

Supreme Court of Missouri.

January Term, 1854.

1. An appeal lies from the order of a county court changing a road, in favor of a party whose land is taken, and in the present case, the county was held to have been properly made a party to the proceeding.

2. Under the 20th section of the first article of the act for opening and repairing roads and highways, approved March 26th, 1845, a county court has no right to turn a road on another's land against his consent. That section is not repealed by the act of January 25th, 1847.

3. In opening new roads, the land of individuals who do not consent can only be condemned in the mode prescribed by the 7th, 8th, 9th, and 10th sections of the act of March 3d, 1851.

Appeal from Cooper Circuit Court.

This was a proceeding in the Cooper County Court to change the location of a specified part of a county road leading from Booneville to Pisgah. The proceeding originated in a petition of Gilbert Reeves and others, which specified the part of the road sought to be changed, and the private convenience that would result therefrom, and asked the court to appoint commissioners to review the proposed change. The petition stated that the road, as established, ran through the land of some of the petitioners, in such a way as to prevent them from cultivating the same. The court appointed three commissioners pursuant to the praye of the petition, and at a subsequent term, they reported in favor of the change, and that all the parties over whose land the proposed road was to pass, consented, except Williamson Geyer. At the same term, Geyer presented his remonstrance against the change, and asked the appointment of commissioners. The court appointed three new commissioners who, at a subsequent term, reported in favor of the utility of the proposed change, both to individuals and the public, but did not assess Geyer's damages, nor report that none would be sustained. The court accordingly made an order establishing the new, without expressly vacating the old road, and at the same adjourned term, Geyer moved the court to vacate these orders, which the court overruled, and he appealed to the Cooper Circuit Court.

In the Circuit Court. Geyer moved to reverse the order of the county court, which motion was overruled. The Circuit Court then directed his counsel to proceed with the cause de novo, which they refused to do, stating that they relied upon their motion. Upon motion of the counsel for the county, the orders of the county were then affirmed, and Geyer appealed.

Leonard and Draffin, for appellant.

The county court proceeded under the sixth and subsequent sections of the first article of the road law of 1845, which were repealed by the act of March 3d, 1851. None of the provisions of this latter act for the protection of private property were observed. The repealed and the existing laws were both disregarded, and the road was established through Geyer's farm against his consent and without compensation.

If this proceeding is to be regarded as one to procure a change in a road under the 20th, 21st, and 22d sections of the first article of the law of 1845, it cannot be sustained, for in such a proceeding, there is no authority given to the county court to take a person's land without his consent, even for a compensation.Hayden and Stephens, for respondent.

1. No appeal lies from the order of the county court to the Circuit Court. 2. If, however, an appeal lies, then the cause is to be tried de novo in the Circuit Court, and when the appellant refused to proceed, the order of the county court was properly affirmed. It was his business to show error in the proceedings in the county court. 3. If the Circuit Court had no jurisdiction to try the case anew, then, as there is no mode pointed out by the statute for preserving the evidence upon which the county court acted, by bill of exceptions or otherwise, this court cannot exercise its appellate jurisdiction.

SCOTT, Judge, delivered the opinion of the court.

1. In the case of Oberbeck & Shaw v. Gallaway, 10 Mo. 364, this court held, that no appeal will lie from the order of a county court establishing or changing a road, unless some...