Grossman v. Patton

• Decision Date: 21 February 1905
• Citation: 186 Mo. 661,85 S.W. 548
• Parties: GROSSMAN et al. v. PATTON et al.
• Court: Missouri Supreme Court

85 S.W. 548

186 Mo. 661

GROSSMAN et al. v. PATTON et al.

Supreme Court of Missouri, Division No. 2.

February 21, 1905.

HIGHWAYS — LOCATION — ASSESSMENT OF DAMAGES — DISPOSITION ON APPEAL — COSTS.

1. In proceedings for locating a road, the record should show that the three commissioners appointed to assess the damages are freeholders, as required by Const. art. 2, § 21; the report of such commissioners that they are freeholders not being sufficient.

2. Under Const. art. 2, § 21, providing that the compensation for property taken for public use shall be ascertained by a jury or board of commissioners of not less than three freeholders, on appeal to the county court of proceedings to locate a road it is error for the court to itself assess the damages.

3. Rev. St. 1899, § 1674, provides that the circuit court shall have appellate jurisdiction on appeal from the judgments and orders of the county courts and "possess a superintending control over them." Section 10,352 provides that, on appeal from a township board of proceedings for establishing a road, the county court shall determine all matters of dispute, and make an order which shall be final as to all matters involved, saving to the landowners the right to appeal to the circuit court on all actions of law involving the legality of such proceedings, but on such appeal no evidence as to the utility of the proposed road shall be received, but action of the county court as to the utility shall be final. Held, that where proceedings for locating a road were regular and legal before the township board, and also in the county court, except that the damages were not determined by freeholders, it was proper for the circuit court on appeal, on determining such illegality, to remand the proceedings to the county court for a proper determination of the damages, rather than to dismiss the proceedings.

4. On a remand to the county court for a reassessment of damages in proceedings for the location of a road, it was proper for the circuit court to tax the costs of that court only, and allow the county court to tax the costs therein after a final disposition of the proceedings.

Appeal from Circuit Court, Carroll County; Jno. P. Butler, Judge.

Proceedings for the location of a highway by C. S. Grossman and others against John T. Patton and others. From the judgment rendered, defendants appeal. Affirmed.

Jas. F. Graham and Conkling & Rea, for appellants. Lozier & Morris, for respondents.

GANTT, J.

This is a proceeding to condemn certain real estate in Carroll county for a public road. The proposed road is on a township line, and it is assumed by counsel on both sides that township organization had been adopted and was in force in Carroll county. This further appears from the fact that the proposed road is on a township line, and under and by virtue of section 10,350, Rev. St. 1899, the petition was presented to a joint meeting of the township boards of both townships. Respondents are the petitioners for the road, and the appellants filed a remonstrance against the road; over one mile of said proposed road being on their lands. A hearing was had, the petition granted, and a survey ordered. On July 26, 1901, the surveyor's report was filed, and the joint board found that the appellants had failed to relinquish the right of way over their lands, and that they and petitioners could not agree with them as to the damages sustained. Thereupon the joint board appointed Wm. A. Audsley, Noah Huntzinger, and J. F. Warnock, "whom the joint board finds, from the evidence and witnesses produced, to be disinterested resident householders," as commissioners to assess the damages. On August 7, 1901, the commissioners' report was filed and approved. They allowed appellants $4.50 damages in the aggregate. This amount was tendered and refused, and the road ordered opened. It is conceded by appellants that all the proceedings before the joint board were regular and in due form, save and except that the commissioners were not found to be freeholders, as required by section 21 of article 2 of the Constitution of Missouri of 1875. It should be noted that in the report filed August 7, 1901, the commissioners recite they were freeholders, but there is no finding by the joint board that they were freeholders, and there is nothing in the record to show that they were freeholders when appointed, or on August 5, 1901, when their report shows they estimated the damages. From the order approving the report the appellants appealed to the county, court. At the November term, 1901, of the county court, the case was tried de novo in the county court. Appellants demanded a jury to assess their damages, which was refused. They then filed a motion to dismiss because of the invalidity of the proceedings before the board, which was overruled. They next asked to have the damages ascertained by a jury or board of commissioners who should be freeholders, as required by section 21, art. 2, of the Constitution of this state, which was denied them. Thereupon the county court proceeded to hear the cause, and affirmed the judgment of the joint township board, and reassessed the same damages as found by the commissioners, without the aid of a jury. The appellants then appealed to the circuit court. "At the April term, 1902, of the Carroll circuit court, appellants duly filed a motion to quash all proceedings herein, and to dismiss this cause, for the following reasons: (1) Because the original assessment of damages was made by commissioners found to be householders, instead of freeholders, as required by the Constitution; (2) because in the county court the damages were ascertained by the judges thereof, instead of by a jury or board of commissioners of freeholders, as provided by the Constitution; (3) because neither the township board nor the county court had jurisdiction to make any order or judgment condemning appellants' lands or opening said road. Upon hearing this motion the circuit court quashed the proceedings before the county court, but sustained the proceedings before the township board, and remanded the cause to the county court for a new trial by constitutional methods. As the proceedings before the county court were held to be illegal, appellants next moved the circuit court to tax against the petitioners all costs accrued in both courts. This motion was sustained as to the costs in the circuit court, but overruled as to the costs accrued in the county court. In due time appellants filed their motion for rehearing; again urging the motion to quash, the invalidity of the proceedings before the township board, and duly complaining of the court's said ruling in the matter of taxing of costs. This motion was overruled. From the order and judgment of the circuit court in refusing to quash the entire proceedings, and in refusing to tax against respondents the costs of the illegal trial in the county court, appellants have duly prosecuted this appeal. Appellants' exceptions to all rulings of the circuit court were duly preserved. By this appeal, appellants present the question of whether condemnation proceedings shall be upheld, even partly, when damages have been assessed in all courts in utter disregard of constitutional and jurisdictional requirements. They also ask relief from the alleged erroneous ruling of the circuit court in the taxation of costs."

There can be no question that the constitutional rights of the appellants were disregarded by the joint township board and the county court in taking their lands for a public road without having compensation therefor first ascertained by a jury or board of commissioners of not less than three freeholders. "Householders" is not synonymous with "freeholders." It is true that section 10,345, Rev. St. 1899, provides for a commission of three disinterested persons, who shall be householders, to assess the damages for the appropriation of the land of any person or persons who fail to relinquish the right of way for such road; but in Shively v....