Mississippi County v. Byrd

• Decision Date: 24 March 1928
• Docket Number: No. 26408.,26408.
• Citation: 4 S.W.2d 810
• Parties: MISSISSIPPI COUNTY v. JAMES L. BYRD, W.R. MORGAN ET AL., Appellants.
• Court: Missouri Supreme Court

4 S.W.2d 810

MISSISSIPPI COUNTY v. JAMES L. BYRD, W.R. MORGAN ET AL., Appellants.

No. 26408.

Supreme Court of Missouri. Division Two.

March 24, 1928.

Appeal from Mississippi Circuit Court. — Hon. Frank Kelly, Judge.

REVERSED AND REMANDED.

James A. Boone and J.M. Haw for appellant.

(1) The circuit court had no jurisdiction in this cause, for the reason that the land of appellant that it is sought to condemn is not described in this petition so that it can be located and, therefore, the petition fails to state a cause of action. (a) The statute requires that the petition and report set forth among other things, a specific description of the real estate or other property which the plaintiff seeks to acquire. Secs. 1791, 1793, R.S. 1919. (b) The description in question calling for certain land "except that part of said strip which is now in the existing public road" is wholly insufficient. Schroeder v. Turpin, 253 Mo. 258; Sims v. Brown, 252 Mo. 58; City of Tarkio v. Clark, 186 Mo. 285; Mo. Pac. Ry. Co. v. Carter, 85 Mo. 448. (c) Statutes authorizing condemnation proceedings are to be strictly construed and every prerequisite to the exercise of jurisdiction observed. City of Tarkio v. Clark, 186 Mo. 285; Orrick School District v. Dorton, 125 Mo. 439. (d) Plaintiff had no authority to maintain this action. The petition shows on its face that it is to acquire property for a state road. The action should have been brought by the State Road Commission in the name of the State of Missouri. Laws 1921 (1 Ex. Sess.), p. 141, sec. 21. (2) It was error for the court to admit testimony as to benefits received by exceptor's land, which is on the road, as compared with other lands a quarter or half mile off the road. These benefits are not such as can be set off against the damages, because they are the same kind of benefits enjoyed by all the property in the neighborhood and not peculiar to this tract. The testimony admitted by the court simply compared the degree of benefits or enhancement of value as compared with lands that were a half of a mile away from the road. This was clearly prejudicial. Railroad v. Brick Co., 198 Mo. 698; So. Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 175; Grover v. Cornet, 135 Mo. 21; Rourke v. Railroad, 221 Mo. 64. (3) The court erred in admitting testimony tending to show the benefits to be derived by appellant by reason of the fact that he could haul larger loads over the improved road, same being a benefit that will be enjoyed by all persons using said road and not one peculiar to lands of exceptor. St. L.I.M. & S. Ry. Co. v. Stewart, 201 Mo. 491; St. Louis, Oak Hill & C. Ry. Co. v. Fowler, 113 Mo. 470, and cases cited under 2; Monongahela Navigation Co. v. United States, 148 U.S. 312; Roberts v. Brown Co., 21 Kan. 247; Trosper v. Saline Co., 27 Kan. 391; Williamson v. Read, 106 Va. 453. (4) The court erred in refusing to give Instruction One as offered by exceptor and in modifying said instruction and giving same as modified. (a) Instruction One as offered by appellant is in approved form, properly declares the law and should have been given. Grover v. Cornet, 135 Mo. 21. (b) The two clauses of the instruction as given are inconsistent with and contradictory of each other and constitute reversible error. Gardener v. Street Ry. Co., 223 Mo. 389; Ranney v. Lewis, 182 Mo. App. 58; Bowen v. Epperson, 136 Mo. App. 571. (c) That part of the instruction added by the court, aside from contradicting the rest of said instruction, improperly declares the law, in that it permits the jury to take into consideration benefits that are shared in common by all the property in the neighborhood from the building of the road. Railroad v. Brick Co., 198 Mo. 712; Louisiana Plankroad Co. v. Pickett, 25 Mo. 535; Newby v. Platte Co., 25 Mo. 258.

J.C. McDowell and W.C. Russell for respondent.

(1) The road law passed by the extra session of the Legislature in 1921 did not repeal Section 10907, Revised Statutes 1919. The first section of the Laws of 1921, at page 133, repealed only ten sections, which left out entirely Section 10907. Section 2 of the Act of 1921 (Ex. Sess.) expressly provides that Section 10907 shall remain in force only until the road projects and contracts which shall have been approved under the provisions of said section shall have been completed not later than December 31, 1922, provided, however, that all road projects which shall have been approved, under the provisions of said section, either by the State Highway Board or by the State Highway Commission, shall be completed in accordance with said section. (3) Section 10907 is not in conflict or inconsistent with the provisions of the Act of 1921, and was not repealed by Section 39 of said Act of 1921. (4) The petition and the report of the commissioners described the land so that any engineer or set of commissioners could locate it exactly. They also contained the statement of a portion of an acre sought to be condemned, and the owner thereof. Sec. 1791, R.S. 1919. (5) Exceptor filed no motion in arrest of judgment, and the appellate court can consider any objections to the petition or the report of the commissioners, unless, of course, the petition stated no cause of action. (6) The undisputed testimony shows that all of the land adjoining the concrete-gravel highway, for its entire length, would be increased in value from five to fifteen dollars per acre more than the lands a half mile off the road and not adjoining it. The benefit was peculiar to all of the land immediately adjoining this proposed highway, and was not common, and was not shared by lands that were not on the highway, and the commissioners and the jury had the right to consider that in determining whether or not exceptor was really benefited or damaged.

DAVIS, C.

This is an action by Mississippi County against defendant W.R. Morgan, and others, to condemn property in furtherance of the State Highway System. The commissioners appointed by the circuit court in pursuance to the petition reported that no damages accrued to this defendant, refusing to make an allowance. Thereupon defendant filed exceptions to the commissioners' report, and in due time a trial was had in the circuit court to a jury. The jury returned a verdict finding the damages sustained by said defendant are nothing, an appeal being taken from the judgment entered thereon.

We think it necessary to set forth the petition. It reads:

"Plaintiff states that it is a political subdivision of the State of Missouri, and prosecutes this suit at the request of the State Highway Engineer, and for the benefit of the Air Line Special Road District of Mississippi County, Missouri.

"Plaintiff further states that state roads have been located, known as the Charleston-Wolf Island State Road, and the Charleston through East Prairie to New Madrid County State Road, and that said road or roads pass through, along and adjoining the lands hereinafter described.

"Plaintiff further states that it needs and seeks to acquire for the right-of-way for said state roads the following tracts or parcels of land situated in Mississippi County, Missouri, to-wit:

"Also, a strip of land 30 feet wide off the south side of the southeast quarter of the northeast quarter of Section 26, Township 25 North, Range 15 East, lying north of adjacent and parallel to the center line of the Charleston through East Prairie to New Madrid County State Road as located, except that part of said strip which is now in the existing public road. The land herein described containing 0.21 acres, more or less, and belongs to defendant, W.R. Morgan.

"Also a strip of land 30 feet wide off the south side of the southwest quarter of the northwest quarter of Section 26, Township 25 North, Range 15 East, lying north of, adjacent and parallel to the center line of the Charleston through East Prairie to New Madrid County State Road as located, except that part of said strip which is now in the existing public road. The land herein described containing 0.22 acres, more or less, and belongs to defendant, W.R. Morgan.

"Plaintiff further states that Raymond Fox, Ruth Fox and Ernest Fox, defendants named herein, are minors, and that James A. Boone is their legally qualified guardian and curator, and is therefore made a party defendant, in accordance with the statute in such cases made and provided.

"Plaintiff further states that Robert Hamlet is the husband of defendant Emma Hamlet; that Elmer L. Cobb is the husband of defendant Aura Cobb, and that Clyde DeField is the husband of Mayme DeField, defendant, and that they are therefore made parties defendant, in accordance with the statute in such cases made and provided.

"Plaintiff further states that it has been unable to agree with the owners of any of said several tracts or parcels of land upon a proper compensation to be paid for said land or the interest therein which plaintiff seeks to acquire, although plaintiff in good faith endeavored and tried to so agree.

"Wherefore, plaintiff prays the judge in vacation to appoint three disinterested freeholders, residents of said County of Mississippi, as commissioners, or by a jury to ascertain and assess the damages which said owners of said several tracts or parcels of land may severally sustain, and the just compensation to which they may be severally entitled in consequence of the construction, maintenance and operation of said public roads and the use of said several tracts and parcels of land therefor."

The record discloses this action to condemn the right-of-way for the road was instituted March 16, 1923.

I. The defendant takes the position that, as the petition shows that this is a state road project, Mississippi County Parties: was without power or authority to maintain this action, Defect: such power being vested in the State Highway Commission Waiver. under Section 21, page 141, Laws 1921, First Extra Session.

This condemnation action was brought by ...