Kansas City Interurban Railway Company v. Nelson

• Decision Date: 22 February 1906
• Citation: 91 S.W. 1036,193 Mo. 297
• Parties: KANSAS CITY INTERURBAN RAILWAY COMPANY, Appellant, v. NELSON
• Court: Missouri Supreme Court

91 S.W. 1036

193 Mo. 297

KANSAS CITY INTERURBAN RAILWAY COMPANY, Appellant, v. NELSON

Supreme Court of Missouri, Division One

February 22, 1906

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

Moore & Handy for appellant.

(1) It is not necessary to join all persons owning tracts of land along the line of the proposed railroad in one county or circuit, not settled with, as parties defendant in one petition. R. S. 1899, sec. 1267; Railroad v Railroad, 129 Mo. 70; R. S. 1899, sec. 1161. (2) Sections 1264, 1266 and 1267, Revised Statutes 1899, should be read and construed together. (3) These sections should be so construed that all may stand if it is possible so to do. Manker v. Faulhaber, 94 Mo. 430; Curtwright v Crow, 44 Mo.App. 567; Sutherland on Statutory Construction, secs. 239-41; St. Louis v. Howard, 119 Mo. 41; State v. Klein, 116 Mo. 265; Andrew County v. Schell, 135 Mo. 42.

Wash Adams for respondent.

(1) The statute creates and provides for one summary proceeding in each county or circuit through which the right of way of the proposed road is sought to be condemned, and expressly provides "to which petition the owners of all such parcels of land as lie within the same county or circuit shall be made parties defendant by name if the names are known, and by the description of the unknown owners of the lands therein described if their names be unknown." R S. 1899, secs. 1264-1273; Railroad v. Irwin, 50 Mo.App. 552. (2) Being in derogation of common right, the rule strictissimi juris applies and every requirement of the statute must be fulfilled. Gray v. Railroad, 81 Mo. 135; Anderson v. Pemberton, 89 Mo. 61; Railroad v. Lewright, 113 Mo. 660; Railroad v. Campbell, 62 Mo. 585; Schaffner v. St. Louis, 31 Mo. 272; Lester v. St. Louis, 47 Mo. 477; Railroad v. Alley, 34 Mich. 16; Stanford v. Worn, 27 Cal. 171. (3) The petition itself must show on its face that it includes all land necessary to be condemned in Jackson county, and that the owners of all this land are made parties thereto by name. Honenstine v. Vaughn, 7 Blackf. 520; Kane v. Railroad, 112 Mo. 37; Lewis on Eminent Domain, sec. 349; Lane v. Miller, 17 Ind. 58; Hughes v. Sellers, 34 Ind. 337; In re Flatbush Ave., 1 Barb. 286; In re Washington Park, 52 N.Y. 131; Meyers v. Brown, 55 Ind. 598. (4) If a condemnation statute requires the petition to include the names of all landowners interested, the omission so to do is fatal on demurrer. Lewis on Eminent Domain, sec. 349; Honenstine v. Vaughn, 7 Blackf. 520; Lane v. Miller, 17 Ind. 58; Hughes v. Sellers, 31 Ind. 337; In re Flatbush Ave., 1 Barb. 286; In re Washington Park, 52 N.Y. 321; Meyers v. Brown, 55 Ind. 598.

OPINION

BRACE, P. J.

This is an appeal by the plaintiff from a judgment of the Jackson Circuit Court in favor of the defendant, sustaining a demurrer to the plaintiff's petition in a condemnation proceeding.

The petition and demurrer are as follows:

PETITION.

"The plaintiff states that at the times hereinafter mentioned it was and still is a railroad corporation, duly organized under the laws of the State of Missouri, with principal office in Kansas City, Missouri, with full power and authority to construct, maintain and operate a standard gauge railroad for public use, in the conveyance of persons and property in the State of Missouri, from a point commencing at or about Forty-eighth and Main streets in Kansas City, Missouri, to a point at or near Dodson, in said Jackson county, Missouri over and across the tract of land hereinafter mentioned; that the general direction of said line of railroad built and to be built by your petitioner from said beginning point is easterly and southerly.

"That your petitioner has heretofore filed in the office of the clerk of the county court of Jackson county, Missouri, at Kansas City, a profile map of the route intended to be used in the construction and operation of said railway, which profile map duly shows the actual survey, location and distances of the roadbed of said railroad, the congressional sections through which said roadbed is laid; showing the number of miles of main and side tracks of such road in said county, which map is duly certified by the president and engineer of the petitioner, and of which defendant had due notice.

"That said defendant, William R. Nelson, is the owner and claims to be interested in the tracts of land hereinafter described over and across which it is contemplated to construct the main line of your petitioner's said road, and which your petitioner seeks to appropriate for public use for a right of way for its said railroad, and which right of way across said tract of land is necessary for said railroad. That said tracts of land are situate in the county of Jackson, in the State of Missouri, and described as follows: [Here follows a description of the land.] The petitioner shows to the court that easterly is the general direction in which it is desired and contemplated to build and construct the railway of your petitioner over and across the lands hereinbefore described, and that the railway proposed to be constructed across the above-described tracts of land is an extension of the petitioner's line of railway from said beginning point above mentioned.

"And the petitioner states that your petitioner and the said owners of said land above mentioned and sought to be condemned in this proceeding can not agree as to the compensation to be paid to them, or any of them, for the right of way for your petitioner's railway over and across said lands, or any part of them, though repeated attempts for an agreement for said compensation have been made by your petitioner and the said owner; and the said owner has likewise refused to relinquished said right of way over and across said land, or any part thereof, and has refused to make to the petitioner a voluntary conveyance of such right of way. The petitioner files herewith plats of the ground to be taken for said purposes, which are marked exhibits '1,' '2,' and '3.'

"Wherefore your petitioner prays for the appointment of three disinterested freeholders of Jackson county, Missouri, or by jury to assess the damages which said owner may sustain by reason of the establishment, erection, maintenance, and operation of said railroad of your petitioner over, across and through said land, in accordance with the statutes of this State in such cases made and provided, and that summons shall issue herein notifying said defendant, as required by law, of the time and place when said petition shall be heard; and that this honorable court in the finding of and report of said commissioners may make such order or orders herein as right and justice may require."

DEMURRER.

"Now comes the defendant in the foregoing cause and demurs to the petition of the plaintiff therein, and for grounds of demurrer says: That said petition does not set forth a description of the real estate which the plaintiff company seeks to acquire, nor the names of the owners thereof. It does not appear upon the...