Musick v. Kansas City, S. & M. Ry. Co.

• Decision Date: 27 February 1893
• Citation: 21 S.W. 491,114 Mo. 309
• Court: Missouri Supreme Court
• Parties: MUSICK v. KANSAS CITY, S. & M. RY. CO.

21 S.W. 491

114 Mo. 309

MUSICK v. KANSAS CITY, S. & M. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 27, 1893.

TRESPASS ON LAND — ACTION FOR — WHEN TITLE INVOLVED — CONDEMNATION PROCEEDINGS — VALIDITY OF — CONSTRUCTION OF STATUTES.

1. Where the defense to an action for trespass on realty rests upon an adverse claim to possession of the land, "title" is involved within the meaning of the Missouri constitution.

2. A right of action for damages by trespass upon land survives to the representatives of its deceased owner.

3. Proceedings by a railway company, before a justice of the peace, to condemn land for use as a reservoir, under section 2566, Rev. St. 1889, discussed, and held valid.

4. Jurisdiction of the "subject-matter" of a proceeding is the power to hear and determine cases of the general class to which that proceeding belongs.

5. The legislature has, generally, the right to prescribe the form of procedure in exercising the power of eminent domain.

6. In such proceedings as are reviewed in this case a formal summons by the justice is not essential, if defendant is served with written notice as prescribed by the statute.

7. Such proceedings are not void where a solid sum was awarded by the viewers as damages to two defendant landowners. In the absence of any contrary showing, it will be assumed that they owned the land in common.

8. In event of conflicting meanings, a statute dealing with a particular subject is to have effect, rather than a statute of a more general nature.

(Syllabus by the Judge.)

Appeal from circuit court, Greene county,

Action by one Musick, as administrator, against the Kansas City, Springfield & Memphis Railway Company. Plaintiff had judgment, and defendant appeals. Reversed.

Wallace Pratt and C. B. McAfee, for appellant. White & McCammon and J. P. Nixon, for respondent.

BARCLAY, J.

This action was brought by plaintiff, as administrator of Henry Nell, to recover damages for trespass of the defendant upon certain land in Wright county. The defendant denied the trespass, asserting a right to the possession of the property mentioned. The case began in Wright county, but the venue was afterwards changed to Greene, where the trial took place, and plaintiff had judgment, following a ruling of the court excluding an offer of proof by defendant, the nature of which will more fully appear later. Defendant appealed in due course to the Kansas City court of appeals, which sent the case here.

1. Where the record in an action for injury to real property shows that the defense rests upon an adverse claim of right to the possession of the land in question, the cause involves "title to real estate," within the meaning of the constitutional language defining the jurisdiction of the supreme court. Const. 1875, art. 6, § 12; Rev. St. 1889, § 6570. The transfer to this court was therefore entirely proper.

2. Such a right of action for damages to realty in this state survives to the personal representative of the injured owner. Rev. St. 1889, § 96. Plaintiff may hence sustain the action as administrator, upon a sufficient showing of right and damage.

3. The gist of the case is found in defendant's contention that it acquired a right to possess the land in dispute by virtue of proceedings had in the exercise of the power of eminent domain, under the law now known as section 2566, Rev. St. 1889. Plaintiff replies that those proceedings are void, and of no force, for various reasons. It appears that defendant, by deed from Nell, in 1881, obtained a right of way, 100 feet wide, through a tract of land (40 acres in size) belonging to him, and constructed its railroad upon that strip. Afterwards, in 1882, defendant took steps to acquire an adjacent tract, of about 12 acres in extent, for the purposes of a reservoir. In doing so it instituted proceedings before Thomas H. Patterson, a justice of the peace in Wright county. A transcript of those proceedings was the matter excluded by the court on the trial of the case at bar. The correctness of that ruling is the question now before us. We shall take up the several objections urged to the admission of that document. Plaintiff claims that the justice had no jurisdiction of the subject-matter, and for that reason his supposed record is a nullity. The transcript showed that the railroad company had presented to and filed with the justice, June 7, 1882, a petition entitled: "Before T. H. Patterson, J. P., Wright county, Missouri. Kansas City, Springfield and Memphis R. R. Co., Plaintiff, vs. Jos. Fisher and Henry Nell, Def'ts., "— in which it alleged that it was a corporation under the laws of Missouri, constructing its road across Wright county, Mo.; that it required and sought to acquire the following described land, belonging to the defendants, for the purpose of constructing and maintaining thereon a pond or reservoir for the use of its railroad in operating the same, viz. (describing the tract particularly, by metes and bounds;) that plaintiff and the owners of said land could not agree as to the amount of damage the defendant owners of said land should receive; that the petitioner had not entered upon the said land; and praying the justice to appoint three disinterested freeholders of Wright county as commissioners to assess and ascertain the damages said defendants were entitled to receive. The transcript also showed that Fisher and Nell had each been personally served with a written notice of the above application more than 10 days before its presentation, and that proof thereof was furnished by the affidavit of the person who made the service. These notices stated fully the nature and purpose of the application to be made to Justice Patterson, (as above,) the time when it would be presented to him, and contained the same particular description of the land which it gave. Thereupon it appeared the justice made an order, June 7, 1882, reciting the objects and substance of the foregoing petition, (including a description of the land,) the failure to agree with the owners as to the amount of damages, etc.; that notice had been given to the owners of said land more than 10 days before the application; and appointing...