Missouri Pacific Ry. Co. v. Carter

• Decision Date: 30 April 1885
• Citation: 85 Mo. 448
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant, v. CARTER et al.
• Court: Missouri Supreme Court

85 Mo. 448

THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant,

v.CARTER et al.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

Thos. J. Portis and Smith & Krauthoff for appellant.

(1) This proceeding was instituted under the provisions of article six, chapter twenty-one, Revised Statutes, pages 160, 161, 162, and 163. In proceedings to condemn land for railroad purposes an allegation in the petition that the “parties could not agree upon the proper compensation to be paid for land proposed to be taken” is a sufficient averment of the fact of disagreement to put the adverse party upon the defence to the merits. The petition in this case meets exactly this requirement. H. & St. Jo. Ry. v. Muder, 49 Mo. 165; K. C., St. Jo. & C. B. Ry. v. Campbell, 62 Mo. 585. (2) The circuit court erred in dismissing the proceeding as to all of the defendants, even if the defendant, Theodore Heinen, did not reside in Cole county, nor in the first judicial circuit. If the defendant, Heinen, who resided in Osage county and not within the circuit where the land sought to be condemned was situate, was misjoined with the other defendants, who resided in the circuit where the land was situated, the court in any view of the case, should have only dismissed the proceedings as to said Heinen. (3) The question that defendant had not charter authority to operate a road in the locality in question could not be raised in this proceeding. 38 New Jer. Law, 17. (4) There is no appearance by any one on behalf of the minor defendants, and so the allegation of a failure to make their guardian a party defendant is immaterial--Schoenen cannot raise it. If the minors are not made parties their interest does not pass, but it does affect the other parties. (5) Heinen's objections are not tenable. Under section 892“the owners of all such parcels as lie within the county or circuit shall be made parties.” This is a proceeding in rem and the situs of the property determines the jurisdiction, not the residence of the parties.

Edwards & Davison for respondents.

(1) The circuit judge had no jurisdiction to appoint commissioners. Kansas City, etc., Ry. v. Campbell, 62 Mo. 585; Quincy, etc., Ry. v. Kellogg, 54 Mo. 334. (2) It was not for the circuit court to single out one party and confirm the report as to him and reject it as to the others. Miss., etc., v. Ring, 58 Mo. 491. (3) The statute authorizing the condemnation proceeding, being in derogation of the common law, should be liberally construed in favor of those whose rights are affected. 58 Mo. 491-494, supra. (4) The petition was defective in that it showed on its face that plaintiff was seeking to affect the land of minors and their guardians were not made parties, and, also, in that it in like manner showed that the parties defendant did not reside in the same county, nor in the same judicial circuit.

BLACK, J.

This proceeding was commenced in the Cole circuit court to condemn the property of the defendants for a sidetrack. On the return of service of notice, three commissioners were appointed to assess damages, who made their reports. The defendant, Heinen, filed separate exceptions to the report, appearing for no other purpose. The other defendants, except Carter, as to whom the proceedings were dismissed, also filed exceptions. The exceptions were sustained, and the court being of the opinion that the petition did not state facts sufficient to authorize the appointment of commissioners, dismissed the proceedings.

1. The land lies in Cole county, and the proceedings could not be carried on in any other county, but inasmuch as Heinen did not reside in that county, or...