Petet v. McClanahan

• Decision Date: 05 March 1923
• Docket Number: No. 23077.,23077.
• Citation: 297 Mo. 677,249 S.W. 917
• Parties: PETET v. McCLANAHAN et al.
• Court: Missouri Supreme Court

249 S.W. 917

297 Mo. 677

PETET v. McCLANAHAN et al.

No. 23077.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Rehearing Denied April 6, 1923.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Charles H. Petet against John H. McClanahan and others, Judges of the County Court, and others, to recover value of land taken by the county and for consequential damages. On the court's ruling to direct verdict for defendant's, plaintiff took involuntary nonsuit with leave, and from the judgment entered appeals. Affirmed.

Perry A. Brubaker, of St. Joseph, for appellant.

Culver, Phillip & Voorhees, of St. Joseph, for respondents.

RAGLAND, J.

The county court of Buchanan county, in relocating a public road, took for that purpose a strip of land 50 feet in width off of one side of plaintiff's farm. This action is to recover the value of the land taken and the consequential damages.

The county court in making the relocation followed, or attempted to follow, the provisions of section 10636, R. S. 1919. The section, so far as pertinent to the questions at issue, is as follows:

"The right of eminent domain is vested in the several counties of the state to condemn private property for public road purpose. * * * If the county court be of the opinion that a public necessity exists for the establishment of a public road, * * * it shall by an order of record so declare, and shall direct the county highway engineer within fifteen days thereafter to survey, mark out and describe said road, * * * and to prepare a map thereof, showing the location, courses and distances, and the lands across or upon which said proposed public road will run, * * * and said highway engineer shall file said map and a report of his proceedings in the premises in the office of the county clerk. Thereupon the county court shall cause to be published in some newspaper of general circulation in the county, once each week for three consecutive weeks, a notice giving the width, beginning, termination, courses and distances and sections and subdivisions of the land over which the proposed road is to be established, * * * and that said land * * * is sought to be taken for public use for road * * * purposes. If within twenty days after the last day of said publication no claim for damages for the taking of any of such land or property be filed in the county clerk's office by the owner of said property, * * * then the claim of any such owner shall be forever barred, and the county shall be authorized to enter upon and appropriate said lands or other property; and the court shall make an order accordingly. * * *"

In addition to the portion just quoted, the section further provides a procedure for the ascertainment of the damages, when a claim therefor is filed, and the county court and the owner are unable to agree upon the amount.

By a subsequent section the words "established" and "establishing," as used in the article relating to public roads, are declared to embrace "the locating, relocating, changing and widening of roads."

On April 21, 1919, and during its regular February term, the county court of Buchanan county, apparently of its own motion, found, and by an order duly entered of record declared its opinion to be, that a public necessity existed for the change and relocation of that portion of the public road known as the St. Joseph-Halls-Rushville-Winthrop road which lies between the Banker crossing and Rushville, and that a public necessity existed for the taking and condemning of private property and land for that purpose. On the same day and in connection with such finding and declaration, by order entered of record, the court directed the county highway engineer of Buchanan county—

"to survey, mars out, and describe the proposed change and relocated road leading from Banker crossing to Rushville and to prepare a map of the said proposed road showing the location, courses, and distances and the lands across and upon and over which said proposed road shall run, and to file said map and a report of his proceedings with the clerk of the county court within 15 days hereafter."

Pursuant to the order just mentioned the county highway engineer, on May 12, 1919, filed in the office of the county clerk a report of his proceedings thereunder which complied with the order in all respects except as to the time within which it was filed. The report not, only showed "the location, courses, and distances and the lands across and upon which said proposed road would run," but gave the names of the several owners of such lands, and particularly described that part of the lands of each that would be required for the purposes of the road.

On June 30th, and during its regular May term, 1919, the county court, as shown by to record, ordered:

"That public notice of the change and relocation of the public road known as the St. Joseph-Halls-Rushville-Winthrop road from what is known as Banker crossing to Rushville be published once each week for three consecutive weeks in the St. Joseph Gazette. The first publication to be on June 23, 1919." (it was admitted at the trial that the St. Joseph Gazette was a newspaper in general circulation in Buchanan county.)

The next record entry with reference to the proposed road was as follows:

"August Term, Thursday, September 4, 1919. "Comes now the county clerk and files the proof of publication of the change in the location of road of the St. Joseph-Halls-Rushville-Winthrop road."

Neither the notice itself as published nor the proof of publication filed by the county clerk was offered in evidence, but the final judgment of, the county court establishing the relocated road and condemning the lands over which it was to run recited:

"Whereas, the county court caused to be published in the St. Joseph Gazette, a newspaper of general circulation in the county of Buchanan, once each week for three consecutive weeks, to wit, on June 23, 1919, June 30, 1919, and July 7, 1919, a notice giving the width, beginning, termination, courses and distances and sections and subdivisions of the land over which the proposed changed and relocated road was to be established, and that said land and property was sought to be taken for public use for road purposes; and

"Whereas, proof of publication of said notice was filed and entered of record in this court on the 4th day of September, 1919; and

"Whereas, the court doth here find that within 20 days after the last day of publication no claim for damages for the taking of any of the above-described land and property was filed in the county clerk's office by the owners of said property or by the guardians or curators of insane persons or minors owning any of the land and property proposed to be taken by the changing and relocating of said road."

While plaintiff at the time was taking the St. Joseph Gazette, he had no actual knowledge of the publication of the notice therein or of the pendency of the proceeding so far as it was intended to affect his land.

It was agreed that the land actually taken was of the value of $1,353, and that as e result of the taking the remainder of plaintiff's farm was damaged in the sum of $315.

Upon a ruling by the trial court at the conclusion of all the evidence that a verdict should be directed for defendants, plaintiff took an involuntary nonsuit with leave and Judgment was entered accordingly. From that judgment he has appealed.

From numerous assignments of error ?he following may be deduced as the principal grounds upon which appellant relies for a reversal of the judgment: (1) Section 10636, standing alone, does not authorize a county court to establish a public road and condemn private property therefor; (2) the proceedings of the county court were void because the provisions of said section were not literally followed; and (3) even if there had been a compliance with its provisions, the statute itself (section 10636) is unconstitutional,

I. (1) Under this head it is contended that the county court was without jurisdiction to make the findings and order of April 21, 1919, with respect to the relocation of the St. Joseph-Halls-Rushville-Winthrop road, because no application...