Nickerson v. Lynch

• Decision Date: 07 October 1896
• Citation: 37 S.W. 128,135 Mo. 471
• Parties: Nickerson et al. v. Lynch, Appellant
• Court: Missouri Supreme Court

37 S.W. 128

135 Mo. 471

Nickerson et al. v. Lynch, Appellant

Supreme Court of Missouri, Second Division

October 7, 1896

Appeal from Harrison Circuit Court. -- Hon. Paris C. Stepp, Judge.

Affirmed.

A. F Woodruff and Sallee & Goodman for appellant.

(1) This is a statutory proceeding in invitum to appropriate to the use of the public the land of appellant, and being in derogation of common law and common right, the utmost strictness is required to give it validity, and unless upon the face of the proceeding it affirmatively appears that every essential prerequisite of the law conferring the authority has been fully complied with, every step from inception to termination is coram non judice. Only a few of the numerous authorities sustaining this proposition are cited. Ells v. Railroad, 51 Mo. 200; Whitely v Platte County, 73 Mo. 30; Anderson v Pemberton, 89 Mo. 61; Railroad v. Young, 96 Mo. 39; Railroad v. Campbell, Nelson & Co., 62 Mo. 585; Cunningham v. Railroad, 61 Mo. 33; St. Louis v. Gleason, 89 Mo. 67; Fore v. Hoke, 48 Mo.App. 254; Taylor v. Todd, 48 Mo.App. 550; Ziebold v. Foster, 118 Mo. 349. (2) The township boards of Bethany and Jefferson townships, and the joint township board of the two townships are quasi courts of limited and inferior jurisdiction, and it must affirmatively appear from their record that every fact necessary to give jurisdiction existed in the particular case, and their judgment will not be assisted by presumptions or implications. Railroad v. Young, 96 Mo. 42; Grignon v. Astor, 2 How. (U.S.) 319; 1 Black on Judgments [1 Ed.], sec. 282; State v. Metzger, 26 Mo. 65; Versch v. Schneider, 27 Mo. 101; Taylor v. Todd, 48 Mo.App. 550; Jefferson County v. Cowan, 54 Mo. 234; Schell v. Leland, 45 Mo. 289; Smith v. Haworth, 53 Mo. 88; Ells v. Railroad, 51 Mo. 200; Harris v. Hunt, 97 Mo. 571; McCloon v. Beattie, 46 Mo. 391; France v. Evans, 90 Mo. 74; Rousey v. Wood, 57 Mo.App. 650. (3) It becomes very important in this case to determine what constitutes the record proper of the two township boards and the joint township board. This is somewhat difficult to determine, but from the most reliable authorities it would appear that in this case the record is the petition, remonstrance, surveyor's report, report of the commissioners, and the findings and orders of the different boards as entered of record. Affidavits, certificates, and other documents, although filed, are no part of the record, unless made so by proper order of the boards incorporating them into the record. Lingo v. Burford, 112 Mo. 149; Bateson v. Clark, 37 Mo. 34; In re Petition of Gardner, 41 Mo.App. 589; 20 Am. and Eng. Ency. of Law, 476-485 top, and note 3, 488 top; England v. Gibhart, 112 U.S. 502. (4) In this case a legal petition must have been presented to a legal meeting of each of the boards of Bethany and Jefferson townships, otherwise no initial jurisdiction was acquired by the separate boards, and none by the joint board. This proposition is both statutory and self-evident. R. S. 1889, sec. 8554; Dougherty v. Brown, 91 Mo. 30; Warren v. Gibson, 40 Mo.App. 475. (5) Each of the separate boards must have acted in an aggregate capacity, as a board, and the record must show that fact, and unless it does there is no jurisdiction. Johnson v. School Dist., 67 Mo. 319; Kane & Co. v. School Dist., 48 Mo.App. 408. (6) This being a direct proceeding, it must appear from the findings of the joint board, that the petitioners and land owners could not agree as to the value of the land taken, otherwise there is no jurisdiction. Rodgers v. St. Charles, 3 Mo.App. 41; Corrigan v. Morris, 43 Mo.App. 456; Sloan v. Railroad, 61 Mo. 24; Moses v. Dock Co., 84 Mo. 242; Railroad v. Young, 96 Mo. 39; Railroad v. Campbell, 62 Mo. 585. (7) The record must show affirmatively that a majority of all the members of the two boards acting together in a joint board capacity voted to establish the road. R. S. 1889, section 8554; St. Louis v. Gleason, 93 Mo. 33; 1 Dillon, Mun. Corp. [4 Ed.], sec. 281, note 4; Young v. St. Louis, 47 Mo. 492. (8) In this case two bodies are required to act before the property can be condemned. If either has failed to act, or rather if the record fails to show that both have acted, there is no condemnation. St. Louis v. Gleason, 89 Mo. 67; 2 Dillon, Mun. Corp. [4 Ed.], sec. 604. (9) The appearance of appellant in the courts below did not give jurisdiction over the subject-matter so as to supplement the record. Taylor v. Todd, 48 Mo.App. 550; Abernathy v. Moore, 83 Mo. 65; Fields v. Malony, 78 Mo. 172.

J. C. Wilson and Alvord & Frisby for respondents.

(1) The law disregards formalities in inferior jurisdictions, so that the statute is substantially complied with. Forbs v. Shellabarger, 50 Mo. 558; McCartney v. Aner, 50 Mo. 395. (2) The statute expressly declares that the circuit court in this kind of cases has no jurisdiction, except on matters of law under the record, and hence can not hear any evidence as to amount of damages. See R. S. 1889, sec. 8556.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an appeal from the judgment of the circuit court of Harrison county, affirming a judgment of the county court of said county, affirming the joint action of the township boards of Bethany and Jefferson townships in establishing a public road along a part of the line dividing said townships. The respondents were the petitioners for said road and a strip of the land of defendant was condemned therefor and his damages assessed at $ 20.

The cause has been certified to this court by the Kansas City court of appeals, because the question of condemnation of real estate vests the jurisdiction to hear the appeal in this court. State ex rel. v. Rombauer, 124 Mo. 598, 28 S.W. 75. It is admitted that Harrison county is organized under the township organization law of this state.

The petition stated every jurisdictional fact necessary to the establishment of a public road, and was signed by the requisite number of petitioners, residing within three miles of said proposed road.

The record discloses that due notice was given of the intended application by the posting of true copies of the petition in each of said townships, Bethany and Jefferson, in three of the most public places in each of said townships, for more than twenty days before the second day of December, 1891. It further appears by the record that in pursuance of said notices the two township boards of the townships of Bethany and Jefferson, met at the office of the township clerk of Bethany township in said county and state on the third day of December, 1891, in pursuance of an order and agreement to that effect.

It further appears that there were present at said meeting, Wiley Milligan, member of the Jefferson township board, H. S. Bartlett, trustee, and John T. Hendren, clerk of said Jefferson township, J. R. Cunningham and Richard Lovelace, members of said Bethany township board, J. G. Walker, trustee, and J. W. Kenyon, clerk pro tem., of Bethany township. At said meeting said board was organized by electing J. R. Cunningham president of the joint board.

The petition was publicly read before the joint board, proof of notice made, and thereupon Hugh Lynch, the appellant, and others, filed a remonstrance. The matter was heard, the road found to be of public utility and practicability and the road commissioner ordered to survey and make his report. This he did in due time, reporting that Hugh Lynch alone refused to relinquish the right of way over a strip eighty rods long and forty feet wide, and off of the south side of the southwest quarter of the southwest quarter of section 32, township 64, range 28, and the north side of the west half of lot number 2 of northwest quarter of section 5, township 63, range 28. Commissioners were duly appointed to assess his damages and made report that they assessed his damages at $ 20. The report was approved and the road ordered established and opened upon the payment by petitioners of the damages.

Lynch appealed from this order to the county court. In the county court he moved to dismiss the proceedings, but the grounds of his motion nowhere appear in the record. His motion was overruled.

Thereupon, both parties appearing, a hearing was had before the county court of Harrison county on November 16, 1892, and the action and judgment of the joint board of said Bethany and Jefferson townships in establishing said road and approving the damages assessed were in all things affirmed.

Thereupon said Lynch appealed from said judgment of the county court to the circuit court of said county, and the cause was reached on the thirteenth day of October, 1893, both parties appearing, and said Lynch filed the following motion:

"In the matter of the petition of George Nickerson et al., for a new road; Hugh Lynch et al., remonstrators and appellants.

"Come now the appellants herein and move the court to dismiss the petition and set aside the proceedings in the matter of the petition of George Nickerson et al., for a new road, for the following reasons, to wit.:

"1. Because there is no finding in the record that the petitioners for said new road could not agree with the owners of the land over which it passed as to the amount of damages said owners had sustained, nor do the proceedings show that any attempt was made by said petitioners and the landowners to agree as to the amount of damages said landowners had sustained.

"2. Because the record does not show that a majority of all the directors of the two townships concurred in the order establishing said road.

"3. Because the whole record establishing said road is indefinite and insufficient," which motion was by the court overruled and said Lynch duly excepted.

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