Hannibal & St. Joseph R.R. Co. v. Rowland

• Decision Date: 31 January 1860
• Citation: 29 Mo. 337
• Parties: HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Plaintiff in Error, v. ROWLAND et al., Defendants in Error.
• Court: Missouri Supreme Court

29 Mo. 337

HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Plaintiff in Error,

v.ROWLAND et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1860.

1. Where, in proceedings instituted in behalf of the Hannibal and St. Joseph Railroad Company, under its charter, to obtain a condemnation of land, the report of a set of commissioners or viewers is set aside, the judge in ordering a review must appoint a new set of viewers. (Sess. Acts, 1857, p. 250, § 9.)

2. Where the judge, upon the making of the report of the viewers, sets the same aside on the ground that the damages had not been estimated in the mode required by the law, the award of damages being conditional, and sends back the same viewers with instructions as to the rule in assessing damages, this would not be a review within the meaning of the charter, and would not require the appointment of a new set of viewers, nor would it come within that provision of the charter that provides that “not more than one review shall be granted to the same person.”

Error to Macon Circuit Court.

The facts are sufficiently set forth in the opinion of the court.

Lamb & Lakenan, for plaintiff in error.

I. The courts will take cognizance of cases like this brought up by certiorari. (27 Mo. 322.) These proceedings are before the judge ex officio, not before the court, either in or out of term. The judge had no right to order four views of the land, nor to appoint the same viewers twice, or to order them to make a second report. The first report of Morrow, Gibson & Morrow should have been permitted to stand. The right to a review was exhausted on each side. In their second report the viewers were misled by the instructions of the court. The judge had no right to instruct them. The instructions were wrong.

Prewitt, for defendants in error.

I. A writ of error does not lie in this case. (27 Mo. 327.) The first report made by Morrow, Gibson & Morrow was illegal. No judgment could have been entered upon it. All that could be done was to have the reviewers make a new report. The judge had the right to instruct the viewers. Whether the judge had or had not, the instructions could not have done harm. (See 25 Mo. 544.)

NAPTON, Judge, delivered the opinion of the court.

The only question in this case arises out of the construction of the ninth section of the act to incorporate the Louisiana and Columbia Railroad, which act was subsequently adopted as the charter of the Hannibal and St. Joseph Railroad Company.

Where the company and the proprietor of the land through which the road is proposed to be run can not agree upon the damages, the circuit judge of the county where the land lies is required, upon the application of the company, to appoint three discreet citizens to go upon the land and report to him the damages. Upon objections being filed to the report within five days, the judge is authorized, if he is satisfied that the objections are “sufficient and legal,” to appoint a new board of commissioners or viewers, or he may enter judgment upon the first report. The only restriction upon the power of the judge in this matter is, that “not more than one viewer shall be granted to the same party.” (Sess. Acts, 1837, p. 250.)

In this case, upon the application of the company and due notice to the proprietors, the...