Jackson Cnty. v. Waldo

• Decision Date: 30 April 1885
• Parties: JACKSON COUNTY v. WALDO et al., Appellants.
• Court: Missouri Supreme Court

85 Mo. 637

JACKSON COUNTY

v.WALDO et al., Appellants.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Jackson Circuit Court.--HON. T. A. GILL, Judge.

AFFIRMED.

The county court of Jackson county appointed three commissioners to assess the damages to certain lands of defendants over which it was proposed to locate a public road. The commissioners reported that, in their judgment, the advantages of the road to the land owners were equal to the disadvantages, and that they assessed no damages. Defendants moved to dismiss the cause, which motion was overruled. They then filed their objections to the proceedings, which were overruled, and the court ordered the report of the road commissioner to be received and approved, and the road to be established. The defendants appealed to the circuit court, where their motion to dismiss the cause was overruled.

Upon trial the court instructed the jury that they must consider the advantages, as well as the disadvantages, resulting from the establishment of the road, and if they found the advantages would exceed the disadvantages to the land of defendants, they should find for the county, and assess no damages, and that the burden of proving that the disadvantages exceeded the advantages, rested upon the defendants, and that advantages to be considered were those peculiar to land of defendants over other land in the neighborhood, and that general advantages, such as were common to the neighborhood, were not to be considered.

The court refused to instruct the jury: (1) That they must find for defendants the value of the land actually taken for the road, regardless of any advantage the road, if established, would be to the remaining land, and (2) That in estimating damages of defendants they should find value of land actually taken, and also cost of fencing defendants would be required to construct if road should be opened, and from cost of such fencing they should deduct the advantages (in money) that the road would be to defendants. The jury found a verdict for plaintiff and assessed no damages, and defendants appealed to this court.Johnson & Lucas for appellants.

Compensation to a property owner, whose property is taken or damaged for public use, must be ascertained by a jury. Until such compensation is paid to the owner, or into court for the owner, his property cannot be disturbed, nor his rights therein divested. Const. of 1875, art. 2, sec. 21. The word ““paid” implies that money is to pass to the owner. How can advantages be “paid into court?” And yet, if this law is to stand, they must be. Another obstacle arises, from the fact that the owner's proprietary rights are not to be disturbed until he has been paid, so that it is literally impossible to pay him in “advantages” added to his remaining land before his rights are disturbed, because these “advantages” he does not, and cannot, get until the road has been opened for travel. Jacob v. City of Louisville, 9 Dana, 114; Central Ohio Ry. Co. v. Holler, 7 Ohio, 225; Carpenter v. Jennings, 77 Ill. 250.

Henry M. Withers and E. P. Gates for respondent.

(1) The right of the legislature to provide that damages for property taken for public use may be paid in benefits, has been too long the settled law of this state to be now questioned. Newby v. Platte County, 25 Mo. 258; Garrett v. St. Louis, 25 Mo. 505; Uhrig v. City of St. Louis, 44 Mo. 458; State v. City of St. Louis, 52 Mo. 574; State v. City of St. Louis, 62 Mo. 245; City of St. Louis v. Speck, 67 Mo. 403. (2) The presumption is that the commissioners appointed by the county court were qualified and competent to act. There is nothing to show that they were not. Anderson v. Township Boone, 75 Mo. 57. But this is immaterial, as the case was appealed from the county court to the circuit court, where the case was tried anew, as provided by section 6967 of Revised Statutes of 1879. The new trial being by a jury, who, under proper instructions given by the court, found for the respondent. Moreover, it has been expressly decided that it need not appear that the commissioners were free-holders. “It is presumable in such case that the court followed the statutes.” Sutherland v. Holmes, 78 Mo. 402.

PER CURIAM.

The judgment of the circuit court is affirmed.

HENRY, C. J., DISSENTIN...