Lind v. Clemens

• Decision Date: 31 October 1869
• Citation: 44 Mo. 540
• Parties: IN THE MATTER OF J. B. LIND, Respondent, v. JAMES CLEMENS, Jr., Appellant.
• Court: Missouri Supreme Court

44 Mo. 540

IN THE MATTER OF J. B. LIND, Respondent,

v.JAMES CLEMENS, Jr., Appellant.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

A. M. Gardner, for appellant.

I.The petition does not show, nor does the petitioner claim, that he offered or tried to make a private bargain with the owner for the rock or for the use of the quarry.Whenever the property of an individual is to be divested by proceedings against his will, there must be a strict compliance with all the provisions of the law.(Reitenburgh v. Chester Valley R.R. Co., 21 Penn. 100;Vail v. Morris & EssexR.R. Co., 1 Zabr. 189.)

II.No compliance with the law being shown in this case, the whole proceedings of the County Court were null and void, and their judgment should be reversed.(Stacy v. Vermont CentralR.R., 27 Verm. 39; Blackwell on Tax Titles, 294;1 Redf. on Rail. 239;Balt. & S. R.R. Co. v. Nesbit, 10 How. 395.)

Clover, for respondent.

WAGNER, Judge, delivered the opinion of the court.

When this case was before this court on a previous occasion, it was decided that the appeal from the County Court to the Circuit Court did not authorize a trial in the latter courtde novo, but that still it was the duty of the Circuit Court to ascertain from the record whether the County Court exceeded its jurisdiction or proceeded illegally in reference to the subject-matter before it.(St. Louis v. Lind et al., 42 Mo. 348.)

After the case was remanded, the Circuit Court, upon an inspection of the record, was of opinion that no error was committed in the County Court, and therefore affirmed its judgment, and the case is again here by appeal.

The proceeding was had under the thirteenth section of the law “about roads in St. Louis county,” approved March 10, 1849.(Sess. Acts 1849, p. 593.)The section provides that if, in the construction of any of the public roads of the county, it shall become necessary to use stone, timber, or earth belonging to individuals, and no private bargain can be made on fair terms for the purchase of the same, it shall be lawful for the County Court to order the marshal of the county to summon a jury of six citizens not owning property on the road to be improved, who shall assess the damages to the freehold, and the value of the material wanted for public use; and if, upon the return of the verdict, the County Court shall assume to pay the damages and the value of the material thus to be taken, then it shall be lawful for the County Court, by its servants, agents, or contractors, to take and carry away, for the use of the public, such stone, timber, and earth as may be wanted.

Lind contracted to do certain work on the Olive street road, and he represented in his petition to the County Court that no quarry could be opened within a reasonable distance of the work whence he could obtain...