Palmer v. State Highway Com'n
| Decision Date | 14 March 1934 |
| Citation | 69 S.W.2d 653,334 Mo. 1070 |
| Parties | J. B. Palmer et al. v. State Highway Commission, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court; Hon. Henry J. Westhues Judge.
Reversed.
John W. Mather, Ralph M. Eubanks and B. F. Boyer for appellant.
(1) The court erred in overruling defendant's demurrer to plaintiffs' petition because said petition fails to state facts sufficient to constitute a cause of action. (a) Neither the Legislative Act (Centennial Road Law) describing in general terms a route between named points, nor the acts of the State Highway Commission in expending State road funds for the maintenance, marking and widening of the old road from Hawkins Store to Vienna constituted an incorporation of that old road into the State highway system. Sec. 8120, R. S 1929; Castilo v. State Highway Comm., 279 S.W. 673; State ex rel. State Highway Comm. v. Gordon, 36 S.W.2d 106; State ex rel. Reynolds County v. State Highway Comm., 42 S.W.2d 193; State ex rel. Liberty Township v. State Highway Comm., 287 S.W. 39; Logan v. Matthews, 52 S.W.2d 989; Johnson v Underwood, 24 S.W.2d 133. (b) The State Highway Commission may make minor relocations between designated points of the secondary system of state highways. Sec. 8122, R. S. 1929; State ex rel. State Highway Comm. v. Gordon, 36 S.W.2d 106. (c) Even though the abandonment of maintenance on the old road between Hawkins Store and Vienna by the State Highway Commission would cause inconvenience and financial loss to plaintiffs, it gives them no cause of action against the defendant therefor. Sec. 8120, R. S. 1929; Rude v. St. Louis, 6 S.W. 257, 93 Mo. 408; Gates v. Railroad Co., 19 S.W. 957; Glasgow v. St. Louis, 17 S.W. 743. (2) The judgment is for the wrong party and should be reversed because the evidence fails to support the allegations of the petition and the findings and judgment of the court. (a) In an equity proceeding the Supreme Court on appeal will examine the entire record and pass upon the merits. Price v. Morrison, 236 S.W. 297; Krugg v. Bramer, 292 S.W. 702; Sturdevant v. Rehard, 60 Mo. 152. (b) The State Highway Commission has authority to determine the markings to be placed on state highways. Sec. 8107, R. S. 1929. (c) The particular road sought by plaintiffs was not a part of the State highway system. Castilo v. State Highway Comm., 279 S.W. 673; State ex rel. Liberty Township v. State Highway Comm., 287 S.W. 39; State ex rel. State Highway Comm. v. Gordon, 36 S.W.2d 105; Johnson v. Underwood, 24 S.W.2d 133; State ex rel. Reynolds County v. State Highway Comm., 42 S.W.2d 193. (d) The State Highway Commission has power to connect secondary state highways with primary state highways in order to have a "state wide connected system of hard surfaced public roads." Benton County v. State Highway Comm., 52 S.W.2d 995. (e) The State Highway Commission has the power and authority to designate the specific location of the State Highway between Hawkins Store and Vienna which are control points named in the statute. Logan v. Matthews, 52 S.W.2d 989; Selecman v. Matthews, 15 S.W.2d 788; State ex rel. State Highway Comm. v. Gordon, 36 S.W.2d 106; State ex rel. Liberty Township v. State Highway Comm., 287 S.W. 42; Castilo v. State Highway Comm., 279 S.W. 676; Johnson v. Underwood, 24 S.W.2d 133.
Irwin & Bushman, Harry L. Buchanan and Hutchinson & Hutchinson for respondents.
(1) The court did not err in overruling the demurrer to plaintiff's petition. (a) An unambiguous statute must be interpreted according to the language used regardless of the opinion of any commission or of the courts of its wisdom. Gendron v. Dwight Chapin & Co., 37 S.W.2d 486; Columbia v. Weighing Machine Co., 38 S.W.2d 508. And the words in a statute are to be given their natural, plain and commonly understood meaning. 59 C. J. 975; Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 628; Hannibal Trust Co. v. Elzea, 286 S.W. 377. (b) Abutting farmers are specially benefited by the location of a state highway adjacent to their farms. State v. Day, 47 S.W.2d 149; State ex rel. Highway Comm. v. Jones, 15 S.W.2d 338. (c) Property owners whose property abuts the way about to be abandoned or whose property is so located that abandonment of the way in question would deprive them of reasonable access to the general system, suffer a special injury by the abandonment. Arcadia Realty Co. v. St. Louis, 30 S.W.2d 995. (d) Taxpayers are those chargeable with a tax and constitute a class who are specially injured by the wrongful diversion of public road funds. Black's Law Dictionary; Castilo v. State Highway Comm., 279 S.W. 675. (e) The proviso at the end of Section 8120, Revised Statutes 1929, applies solely to primary roads. Selectman v. Matthews, 15 S.W.2d 789; 59 C. J. 984. (2) The court did not err in holding that the road sought by plaintiffs was a part of the State highway system of secondary roads, and that the road as proposed by the defendant was a complete change from the statutory road entitling plaintiffs to the relief sought. (a) A highway once established always remains a highway. 29 C. J. 534. (b) A governmental subdivision having charge of a road cannot abandon the same after it has once been established, to the injury of the vested rights of abutting owners and those similarly situated. Johnson v. Rasmus, 237 Mo. 590. (c) Although the evidence of proceedings in equity is reviewed and the case tried de novo on appeal, yet on questions depending upon the credibility of witnesses or the weight to be given their testimony this court defers to the judgment of the chancellor, who is in a better position to pass on those questions than is this court from a reading of the printed record. Young v. Levine, 31 S.W.2d 982; Snow v. Funck, 41 S.W.2d 2. (d) The proposed route is not the route designated by the statute. Scharnberg v. Iowa State Highway Comm., 243 N.W. 334; Haws v. County Court, 86 W.Va. 650; Watts v. Dept. of Public Works & Buildings, 160 N.E. 201, 328 Ill. 587; Carlyle v. State Highway Comm., 136 S.E. 613; Fletcher v. Ely, 53 S.W.2d 817; Averitt v. Dodd, 265 S.W. 70.
Frank, P. J. All concur, except Hays, J., absent.
Suit by injunction to enjoin the State Highway Commission from abandoning a certain road in Maries County and to compel said Highway Commission by mandatory order to proceed to construct, repair and maintain said road as a part of the State highway system. The judgment below granted the relief prayed for in the petition and the Highway Commission appealed.
The road in controversy is that part of a road running west from a point known as Hawkins Store to the town of Vienna all in Maries County. Section 29 of the Centennial Road Law (now Sec. 8120, R. S. 1929), describes the road, of which the one in question is a part as follows:
"Beginning at the Maries-Osage-Gasconade County line east of Belle, thence south and west through Belle and Hawkins Store to Vienna." Hawkins Store is located approximately eight and onehalf miles south and about one-half mile west of Belle. Vienna is located approximately fourteen miles practically due west of Hawkins Store. A concrete highway, No. 63, is already constructed across Maries County in a south and east direction through Vienna to the Maries-Phelps County line. Concrete Highway No. 63 runs in a southeast course from Vienna and passes a point approximately five miles southwest of Hawkins Store.
The proposed highway south and west through Belle and Hawkins Store to Vienna, is Highway No. 28. There is no dispute about the location of this proposed road from Belle to Hawkins Store. The bone of contention is how the road should run from Hawkins Store to Vienna. Respondents contend that after the proposed road reaches Hawkins Store it should then go fourteen miles west to Vienna, (1) because the Legislature by Section 29 of the Centennial Road Law, made the then existing east and west road between said points a part of the State highway system, and (2) because the Highway Commission adopted said road as a secondary road in said highway system, secured right of way from adjacent landowners for the purpose of widening said road, marked same as Highway No. 28, and expended state road funds in maintaining it from 1921 or 1922 until 1928. On the other hand, the Highway Commission proposes to build a road from Hawkins Store southwest a distance of approximately five miles to and connecting with concrete Highway No. 63 thus furnishing the traveling public an improved highway through Belle and Hawkins Store to Vienna, the three points named in the statutes. Otherwise stated, the Highway Commission's contention is that the three points named in the statute may be connected with an improved highway by building approximately five miles of road southwest from Hawkins Store to and connecting with Highway No. 63, and using Highway No. 63 for the remainder of the route to Vienna, thereby avoiding the construction of a road from Hawkins Store west to Vienna, a distance of approximately fourteen miles, thus saving the State the construction of approximately ten miles of road at a cost of $ 60,000.
We will first take respondents' contention that the Legislature by statute made the fourteen mile east and west road from Hawkins Store to Vienna a part of the State highway system.
The statute referred to is Section 29 of the Centennial Road Law (Laws 1921, First Ex. Sess., p. 145, sec. 29), now Section 8120, Revised Statutes 1929. That section among other things provides, Such state-wide connected...
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