Howe v. Callaway

• Decision Date: 02 July 1906
• Citation: 95 S.W. 974,119 Mo. App. 251
• Parties: HOWE v. CALLAWAY et al.
• Court: Missouri Court of Appeals

95 S.W. 974

119 Mo. App. 251

HOWE v. CALLAWAY et al.

Kansas City Court of Appeals. Missouri.

July 2, 1906.

HIGHWAYS—ALTERATION—APPEAL.

Rev. St. 1899, § 9447, provides that any one owning land through which a road runs may petition the county court for permission to turn the road on his own land at his own expense, and provides that if the court be satisfied that the public will not be materially injured thereby it shall order the change. Section 9419 provides for appeals in road cases and for trial de novo in the circuit court where damages are assessed or a road is opened, changed, or vacated. Section 9416 provides for a remonstrance and contest over the establishing of new roads or changing existing ones. Section 9448 provides for an appeal in the vacation of roads already established. Section 1674 gives circuit courts appellate jurisdiction of all orders and judgments of county courts, and section 1788 provides that on all appeals from the county court to the circuit court the latter shall try the case de novo. Held, that though, on a petition by a landowner for the turning of a public road running over his land. others remonstrated on the ground that it would injuriously affect the public interest and their own interests, no appeal would lie by them to the circuit court from an order of the county court ordering a turning of the road.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Application by Robert M. Howe to the county court of Lafayette county to turn a public road running through petitioner's land. From a judgment of the circuit court, dismissing an appeal from the county court by James W. Callaway and others, who remonstrated against the proceeding, they appeal. Affirmed.

Wm. H. Chiles, for appellants. John Welborn and John S. Blackwell & Son, for respondent.

ELLISON, J.

This proceeding is an application to the county court of Lafayette county to turn a public road where it runs through the petitioner's land to another part of his land. There was a remonstrance of 12 freeholders. The petition was referred to the road commissioner, who made his report thereon. Afterwards the county court made an order turning the road as asked, and the remonstrants appealed to the circuit court. In the latter court the appeal was dismissed on the ground that no appeal would lie in such case. The remonstrants there-upon brought the case here.

The proceeding is based upon the following statute (section 9447, Rev. St. 1899): "Any person wishing to cultivate or inclose land through which any road may run, may petition the county court, first giving notice as in the case of new roads, for permission to turn such road on his own land or the land of any other person consenting thereto, at his own expense. The court shall thereupon cause the road commissioner to view the same, and report the practicability of the proposed change, and distance and situation of the ground, and proposed changes, at the first term of the court thereafter; and, if upon the report, the court be satisfied that the public will not be materially injured thereby, it shall order such change, and upon satisfactory proof of such road being opened in such manner as to be equally convenient to travelers, the court shall make an order vacating so much of the former road as lies between the different point of intersection, and cause the report thereof to be recorded."

The sole question presented by counsel is the right of appeal. If the right exists at all, it must be founded upon the statute. We decided a case under this statute, brought here on appeal, but the question of a right to appeal was neither presented nor considered. Self v. Gowin, 80 Mo. App. 398. The right of appeal was denied to less than 12 remonstrants in Schroeder v. Jabin, 94 Mo. App. 111, 67 S. W. 949, but it was not decided whether 12 would have had the right. A careful examination of the question has satisfied us that the circuit court took the correct view of the law in deciding that there was no right of appeal from the county court. There are several sound reasons sustaining that view. As before remarked, the right of appeal must be based on the statute. Exclusive original power is given to the county court in road matters, and formerly the right of appeal, practically, did not exist, as such appeal amounted to no more than a certiorari. There was no trial anew in the circuit court, and, if the county court had followed the forms of law, its decision was final. A statute, however, has been interposed enlarging the right of appeal in certain cases and providing for a trial de novo in the circuit court. So that now the right of appeal is considered not to exist unless it could accomplish some practical purpose by being tried anew in the circuit court, and, when no new trial is provided for, no appeal can be taken. Scott Co. v. Leftwich, 145 Mo. 26, 46 S. W. 963; Sheridan v. Fleming, 93 Mo. 321, 5 S. W. 813; St. Louis Ry. Co. v. St. Louis, 92 Mo. 160, 4 S. W. 664.

Applying this rule to the present case, we find that proceedings of this nature are based upon a special provision of the road law, which we have set out above. In that provision there is no right of appeal granted, nor is there any provision for any further hearing beyond the county court. The Legislature has provided for appeals in road cases and for trials anew in the circuit court in certain cases (section 9419, Rev. St. 1899), viz., where damages are assessed, or a road is opened, changed, or vacated. But clearly those specifications of the right of appeal contemplate cases where there may be contesting parties, not cases in which no provision is made for such contests. Thus section 9416 provides for a remonstrance and contest over the establishing of new roads, or changing existing roads, and section 9448 provides for the same thing in the vacation of roads already established. But the statute upon which this proceeding is had is not to change a road, or to vacate a road, in the sense used in section 9419, providing for appeals, and the other sections, providing for contests by remonstrants. The purpose of the statute upon which this proceeding is based is to "turn" a road from one part of a man's land to another, and no remonstrance is contemplated, and no remonstrants are recognized as contestants, since no provision is made for either. It is plainly a special, separate, and independent provision appearing in the road law for the benefit of the individual landowner, who must make the change himself, and at his own expense. He is only required to obtain the consent of the county court. And to the end that that court may be properly advised as to the truth of the petition, and that "the public will not be materially injured," and that the road, as turned, will "be equally convenient to travelers," it is provided that notice must be given to the public so that the public may be protected by having an opportunity of giving the court whatever information is required. But in none of this is there any suggestion of an adversary proceedings, whereby individuals are authorized, as a matter of individual right, to appear and have a trial with the right of appeal. It was in the sense of furnishing the court with information as to the interest of the public that we stated in Self v. Gowin, 80 Mo. App. 398, that objecting parties who felt an interest, might go into the county court.

It seems to us that the question has been directly passed upon by the Supreme Court. The case of Overbeck v. Galloway, 10 Mo. 364 (approved in Foster v. Dunklin, 44 Mo. 216), was, like this, an application for permission to turn a public road from one part of Overbeck's land to another. Galloway came into the county court and undertook to have himself made an adversary party. The court said that "in the establishment of new roads, or the changing of roads already established, or the vacation of existing roads, wherever it is probable that individual or private rights will be affected, the statute provides for the making of such individual parties by summoning them to...