Fitzgerald v. De Soto Special Road Dist.

• Decision Date: 22 May 1917
• Docket Number: No. 18269.,18269.
• Citation: 195 S.W. 695
• Parties: FITZGERALD v. DE SOTO SPECIAL ROAD DIST. et al.
• Court: Missouri Supreme Court

195 S.W. 695

FITZGERALD v. DE SOTO SPECIAL ROAD DIST. et al.

No. 18269.

Supreme Court of Missouri. In Banc.

May 22, 1917.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Petition for an injunction by William Fitzgerald against the De Soto Special Road District of Jefferson County and others. From a judgment for defendants, and from an order denying him a new trial, plaintiff appeals. Affirmed.

On October 17, 1911, plaintiff filed a petition for injunction to restrain defendants from opening a public road over his land in Jefferson county, Mo. The petition alleges that the county court of said county made and entered of record an order opening and establishing a change in a certain county road known as the De Soto and Vineland Road; that said road, as changed, passes over his land and that of the school district in the northeast corner of the northwest quarter of the northwest quarter of section 20, township 39, range 4 east, known as Vineland school district in said county; that he is the owner of the east half of the northwest quarter of section 17, township and range aforesaid; that the order of said county court is void because no relinquishment was ever given to any right of way for said road over said schoolhouse site, and also because he has made no relinquishment for said road over the 80 acres aforesaid; that he is a resident taxpayer in said school district; that all of said lands are located in the De Soto special road district of said county; that defendants Ward Cunningham, W. A. Welch, and A. M. Barrows, are commissioners of said special road district; that said commissioners are about to open and establish said road over his land, and that of the school district illegally, to their irreparable injury, etc.

A temporary restraining order was issued, and on January 17, 1912, defendants filed their answer, admitting that said special road district was organized under the Revised Statutes of 1909 of Missouri, and that said defendants Cunningham, Barrows, and Welch, are members of, and compose, the board of commissioners of said road district. They admit that the premises mentioned in petition are situate in said road district; that at the May term, 1911, the county court of said county made an order establishing a public road across the above 80 acres owned by plaintiff. They deny that said order was void for the reason that plaintiff had not given a relinquishment for the location of said road over his land aforesaid. They deny that said order of the county court was void because said school district did not relinquish the right of way over its premises. The answer contains a general denial of all other matters pleaded in petition and sets up estoppel, as well as other defenses, against plaintiff's right of recovery, etc.

The reply denies the truth of the new matter pleaded in the answer.

The members of the county court were not joined as defendants, nor was said court made a party to the action.

Plaintiff read in evidence the petition for said road presented to the county court aforesaid, at its August term, 1910. It was in proper form, contained all the necessary jurisdictional facts, and fully complied with the requirements of section 10435, R. S. 1909. It appears from the record that due and proper notice of the presentation of said petition was given as required by section 10436, R. S. 1909.

On August 1, 1910, the county court, upon the hearing of said petition, etc., affirmatively found and entered of record the facts, showing that said petition and the notice aforesaid were in full compliance with the requirements of sections 10435, 10436, and 10437, R. S. 1909.

It is conceded that plaintiff signed the road petition aforesaid, and that on the back of same was indorsed, "Names of persons who will give the right of way." The record of the county court, among other things, recites the following:

"Court finds from the report of the highway engineer that the following named persons have relinquished, in writing, the right of way for said proposed change of road over lands owned by them, as herein specified, with relinquishment, which certificates of acknowledgment have been filed with the court as follows, to wit: owner's full name, Wm. Fitzgerald; length, 1373 ft.; width, 30 ft.; description, S. E. ¼ of N. W. ¼ of Sec. 17, Twp. 39, R. 4."

Plaintiff introduced in evidence a written relinquishment of the right of way for said public road over his land, filed by him with the highway engineer and dated October 29, 1910, which contains the following recital:

"This road is to be opened through to Vineland, Mo., within six months from this date or to revert to me as owner, being in section 17, township 39, range 4 east, for a county road or public highway 30 feet wide."

It appears from the evidence that the three members of the school board, to wit, A. M. Barrows, F. L. Wilson, and A. H. Welch, signed the road petition aforesaid.

On May 4, 1911, the county court made and entered of record its order establishing said public road, 30 feet wide. No appeal was taken by plaintiff or the members of said school board from the judgment or orders of said county court.

Such other facts, if any, as are necessary, will be considered in the opinion.

The trial court, on March 26, 1912, found the issues in favor of defendants, dissolved the temporary injunction, dismissed plaintiff's bill, and in due form entered judgment in favor of defendants. Plaintiff, in due time, filed his motion for a new trial, which was overruled and the cause appealed by him to this court.

Clyde Williams and Albert Miller, both of Hillsboro, for appellant. Sam Byrns, of De Soto, E. J. Bean, of Jefferson City, and H. B. Irwin, of De Soto, for respondents.

RAILEY, C. (after stating the facts as above).

The course and intermediate points of the public road complained of are described in the petition for the road, the notice, and orders of the county court, as follows: Beginning in the municipal township of Valle, in the center of the public road leading from De Soto to Vineland at Bell telephone pole No. 259, in the southeast corner of the northwest quarter of the northwest quarter of section 20, township 39, range 4 east; thence north on lands of Thomas Welch, 955 feet, to a fence; thence north on lands of Emanuel Hoffman, 2,640 feet, to a fence; thence north on lands of A. H. and George Welch, 1,198 feet; thence east on lands of Wm. Fitzgerald, 1,320 feet, to intersection of public road leading from De Soto to Vineland aforesaid. The proposed public road runs east and west across the south side of plaintiff's land, described as the southeast quarter of the northwest quarter of section 17 aforesaid. The school site mentioned in plaintiff's petition is described as 8 rods east and west by 10 rods north and south. It is located in the northeast corner of the northwest quarter of the northwest quarter of section 20, township 39, range 4 east. The proposed public road runs north and south on the east side of said school site. The schoolhouse on said site is located about 10 or 12 feet west of said proposed road.

I. It is contended by appellant that the proceedings before the county court of Jefferson county aforesaid, relating to the establishment of the public road in controversy, are void, because said road runs across part of his land; that no right of way was relinquished over same by him, and no consideration paid therefor. Is this contention well founded under the law, or supported by the evidence in the case? Plaintiff signed the petition for the road in controversy. On the back of same, when he signed it, was the following: "Names of persons who will give the right of way." He knew of this indorsement, and that the county court would be requested to establish said road on the theory that he and the other petitioners would relinquish the right of way over their lands which might be affected by the opening of said road. This petition, thus signed by the requisite number of petitioners, after proper notice had been given as required by law, was, on August 1, 1910, presented to the county court. The latter affirmatively found and entered of record the fact that said petition was properly signed, was in due form, and that legal notice had been given of its presentation to the court on August 1, 1910. No conditions were attached to plaintiff's signature on the petition aforesaid, when received and acted upon by the county court on said date. By virtue of the foregoing acts and proceedings, the county court, on said date, acquired full and complete jurisdiction over the subject-matter of said proceeding, and likewise over the person of this plaintiff. Its record affirmatively recites that plaintiff relinquished the right of way over his land aforesaid. His act three months after August 1, 1910, in signing a written relinquishment with a condition subsequent therein, which he...