In re Application of Aiken for a Public Road
| Decision Date | 02 December 1914 |
| Citation | 171 S.W. 342,262 Mo. 403 |
| Parties | In re Application of SCOTT AIKEN for a Public Road; JOHN T. HOWELL, Exceptor, v. JACKSON COUNTY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.
Affirmed (conditionally).
Rozelle Vineyard & Thacher and Frank A. Boys for appellant.
(1) The court erred in giving at request of respondent, over the objection of appellant, instruction A, because it required the jury to assess the cost of fences as a distinct item of damage and it also contains overlapping provisions. Railroad v. Murphine, 4 Wash. 448; Glendenning v. Stahley, 173 Ind. 681; Farmers Co. v Cooper, 54 Colo. 409; Newgass v. Railroad, 54 Ark. 145; Pittsburg v. McCloskey, 110 Pa. 436; Curtain v. Railroad, 135 Pa. 20; Hanrahan v Fox, 47 Iowa 102; Henry v. Railroad, 2 Iowa 288; Commissioners' Court v. Street, 116 Ala. 36; Lewis on Eminent Domain, sec. 498; Jackson County v. Waldo, 85 Mo. 637; Railroad v. Knapp, Stout & Co., 160 Mo. 396; Railroad v. Baker, 102 Mo. 553; Newby v. Platte County, 25 Mo. 258; Lingo v. Burford, 112 Mo. 157; Daugherty v. Brown, 91 Mo. 32; Bennett v. Hall, 184 Mo. 421; Railroad v. Fowler, 142 Mo. 679; Railroad v. Ridge, 57 Mo. 601; Railroad v. Waldo, 70 Mo. 631; McElroy v. Air Line, 172 Mo. 555; Hickman v. Kansas City, 120 Mo. 122; Bridge Co. v. Stone, 194 Mo. 188; Combs v. Smith, 78 Mo. 32. (2) The judgment of the circuit court is invalid because the court made no finding of the jurisdictional facts which would authorize the road to be established and the judgment incorporates no order establishing the road. R. S. 1909, sec. 10440; Bennett v. Hall, 184 Mo. 407; Allen v. Welch, 125 Mo.App. 287; Williams v. Kirby, 169 Mo. 629. (3) The judgment is invalid because it appears from the face of the record that the damages to the land of John P. Webb affected by the proposed road were not considered or determined. R. S. 1909, secs. 10438, 10440; State ex rel. v. Gill, 84 Mo. 248; Constitution, art. 2, sec. 21; Peterson v. Smith, 6 Wash. 163; Kitsap v. Melker, 52 Wash. 59; Askam v. King County, 9 Wash. 1; Kime v. Cass County, 71 Neb. 677; Levee Comm. v. Dancy, 65 Miss. 341; State v. Fisher, 43 N.J.L. 377.
L. T. Dryden for respondent.
(1) Instruction A correctly stated the law. In Galbraith v. Prentice, 109 Mo.App. 498, which was an appeal from a judgment assessing damages in favor of Prentice for the opening of a public road through his farm, a very similar instruction to this was given, and was held to correctly state the law. Appellant's counsel has cited a number of cases from other States and some Missouri cases; but the most of the Missouri cases cited are railroad cases, where the railroad was seeking to condemn land for its right of way. Under our statutes, the railroad company is bound to build and maintain fences on either side of the right of way, at its own expense. This being true, of course the property owners in such cases would not be entitled to recover any damages for building fences. See R. S. 1909, sec. 3145; Railroad v. Fowler, 142 Mo. 679. (2) The appeal was not taken from the order of the county court establishing the road, but from the verdict of the jury and the judgment of the court on the assessment of Howell's damages. The circuit court had no jurisdiction to make any finding, authorizing an establishment of the road. That question was not before the court. R. S. 1909, secs. 10440, 4091, 7570. The "merits" referred to in the affidavit referred of course to the damages which the jury had allowed him and to nothing else. The whole of appellant's argument upon this point is not based upon the facts in this case and the authorities are therefore not in point. (3) All parties tried this case in the circuit court upon the theory that the appeal was only from the verdict and judgment on the assessment of the damages allowed Howell, respondent herein. No reference is made by either party to any other question. This being true, the appellant here is bound by that theory, and cannot seek to adopt a different one in this court. Dougherty v. Gangloff, 239 Mo. 649; Jones v. Pub. Co., 240 Mo. 200; O'Hara v. Gas Light Co., 244 Mo. 395; Railroad v. Himmelberger, 247 Mo. 179; O'Hara v. Gas Light Co., 131 Mo.App. 428; Rogers v. Foundry Co., 167 Mo.App. 228.
Appeal by Jackson county from a judgment for damages in favor of a landowner.
No remonstrance having been filed in the matter of locating and opening a public road in Sni-a-bar township, Jackson county, presently proceedings were had culminating in orders in the county court finding jurisdictional facts together with the practicability of the road, that same was of such public utility as warranted the location, establishment and opening thereof at the expense of the county, etc., the petitioners depositing the probable damages, estimated at $ 200, in the county treasury. It was further ordered that the proper named officer view, survey and mark out the road and take relinquishments of rights of way, etc. Presently, such officer made report in due statutory form, showing, among other things, that the road ran through the land of John T. Howell, who claimed damages in the sum of $ 2000. On the approval of that report, three disinterested freeholders were appointed commissioners to view the premises, hear complaints and assess damages to the owners of property not relinquishing the right of way, the court further finding anew that the road was of sufficient public utility to warrant the opening and establishment thereof at the expense of the county. Presently, after qualifying, those commissioners reported assessing Howell's damages at $ 400.
Going back a little, there was another property-owner who did not relinquish the right of way, to-wit, John P. Webb. As to Webb the commissioners reported "damages, none." To that assessment, Webb filed no exceptions.
(N. B.: No question is raised on the regularity of any of these preliminary matters or to the jurisdiction of the county court; hence details become unimportant.)
On the coming in of the commissioners' report, John T. Howell in due time filed his written exceptions to the effect that the damages allowed by the commissioners were inadequate, and he claimed and asked for a jury to assess the same. Presently, on the coming in of these exceptions, a statutory jury of six free-holders was impaneled and, on a trial, it brought in a verdict assessing his damages at $ 200. Presently, upon that verdict the road forty feet in width was established as a public road by the judgment of the county court, describing it, the parties owning land through which the road ran were allowed until the following March to give possession and open the same, a warrant was ordered issued to Howell, and he, in turn, was ordered to pay all costs accruing since the date of filing his exceptions.
In due time Howell perfected his appeal to the circuit court, his agent's affidavit for appeal, among other things, stating: ". . . he believes the appellant is injured by the verdict of the jury, the judgment of the court, and that this appeal is from the merits and an order and judgment taxing costs." Thereupon a transcript of the proceedings was filed in the circuit court of Jackson county, and presently at a trial there, on the question of damages alone, a new jury awarded him $ 1500, and judgment followed against Jackson county for that sum. On the coming in of a motion for a new trial, the court required a remittitur of $ 200, which was made. It thereupon entered a new judgment for $ 1300, at the same time overruling the motion. From that judgment, Jackson county appeals.
The motion for a new trial was put on the grounds that the verdict was against the evidence, the weight of the evidence, the law and the evidence, showed passion and prejudice and was excessive. Furthermore, that the court erred in giving three instructions, A, B and C, for plaintiff; also in admitting incompetent testimony over the objection of defendant and in excluding competent testimony offered by the defendant.
At the trial in the circuit court, Webb did not appear, nor did anyone appear for and on behalf of any of the petitioners for the road. The only appearances were on behalf of Howell, exceptor, on one side, and Jackson county on the other. The following excerpt from appellant's statement sufficiently indicates the scope of the last trial:
"The trial of the case in the circuit court was also directed solely to Howell's claim for damages." (And we may add, the judgment was limited to his damages.)
The record shows that appellant objected to no testimony below and that no testimony offered by appellant was excluded; nor is it now contended there was any error in instructions B and C given for plaintiff; nor that the verdict, as a verdict, is against the evidence, or the weight of the evidence, or the law and the evidence; nor that the jury was actuated by passion and prejudice against defendant. So that, by elimination, appellant reduces its assignments of error materially, as will appear in due course.
Challenged instruction A reads (the italicized clause containing the alleged vice).
"The court instructs the jury that in assessing the damages to the landowner Howell you should consider the quantity and value of land...
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