Phillips Pipe Line Co. v. Brandstetter
| Decision Date | 09 February 1953 |
| Docket Number | No. 43375,No. 2,43375,2 |
| Citation | 254 S.W.2d 636,363 Mo. 904 |
| Parties | PHILLIPS PIPE LINE CO. v. BRANDSTETTER et ux |
| Court | Missouri Supreme Court |
Robert A. Roessel, Keith M. Brownell and Ruth Boxdorfer, St. Louis, for appellants.
C. Kenneth Thies, Kerth, Thies & Schreiber, Clayton, Rayburn L. Foster, Harry D. Turner and Wm. J. Zeman, Bartlesville, Okl., for respondent Phillips Pipe Line Co.
WESTHUES, Commissioner.
This is a condemnation suit filed by respondent, Phillips Pipe Line Company, against appellants, Edward O. Brandstetter and his wife, to condemn land for the purpose of laying a pipe line. Commissioners were appointed to assess the damages; exceptions were filed to the report of the commissioners but these were later dismissed. In their answer the landowners, appellants here, challenged the right and power of respondent to condemn the land. Appellants' contention is that Section 523.010 RSMo 1949, V.A.M.S., does not authorize pipe line companies to institute condemnation proceedings. The trial court held that the respondent did have the right to condemn land and entered a judgment accordingly. The landowners appealed.
When the case was argued before this court, the question of appellate jurisdiction was suggested. The attorneys for appellants as well as those for the respondent contended that the appeal was properly taken to this court. The reasons advanced on the question of jurisdiction were that title to real estate is involved and that constitutional questions had been preserved for our review.
The question of jurisdiction is important because this court does not have the right or power to decide cases of which it does not have jurisdiction. Article V, Section 3, 1945 Constitution, V.A.M.S.; Robinson v. Nick, 345 Mo. 305, 134 S.W.2d 112.
There is good authority holding that condemnation cases involve title to real estate. See cases cited in V.A.M.S., Vol. 2, under Note 210 to Art. V, Sec. 3, supra. However, in the case of City of St. Louis v. Butler Company, 358 Mo. 1221, 219 S.W.2d 372, this court en banc reviewed this question at length and overruled many cases which held appellate jurisdiction was vested in this court in such cases. It was emphasized that the constitution requires title to real estate to be involved to vest this court with appellate jurisdiction; that it is not enough that title may be affected. Looking at the record in this case, what is the question in dispute? The Pipe Line Company does not dispute the title of appellants to the land sought to be condemned. By the pleadings, title was conceded to be in appellants. The real question involved is whether Section 523.010, supra, confers on the respondent Pipe Line Company authority to condemn land to lay its pipe lines. A decision in this case depends on the construction of a statute. That does not vest this court with appellate jurisdiction of the appeal. State ex rel. Heppe v. Zilafro, Mo.Sup., 206 S.W.2d 496, loc. cit. 497(1). We need not review the question again and deem it sufficient to refer to the opinion of the court in the Butler Company case, supra. See 219 S.W.2d loc. cit. 374(2)(3), as well as the concurring opinion of Judge Douglas at page 380 in which five of the seven judges concurred. Judge Hyde, who dissented on other grounds, agreed that title to real estate was not involved. See also Missouri Power & Light Co. v. Creed, 325 Mo. 1194, 30 S.W.2d 605(2).
No constitutional question has been preserved for review. In their answer, the landowners in three separate paragraphs attempt to present constitutional questions in the following manner:
'(b) That if plaintiff is within the purview and meaning of Section 523.010 R.S.Mo.1949 [V.A.M.S.] then that Section is unconstitutional and in violation of the Constitution of the State of Missouri, Article 1, Section 28, in that plaintiff is not engaged in a business for a 'public purpose' as therein defined.' (Emphasis ours.)
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Deacon v. City of Ladue
...By failing to assign such contention as error in his motion for new trial, he is deemed to have waived it. Phillips Pipe Line Co. v. Brandstetter, 363 Mo. 904, 254 S.W.2d 636; Shanks v. St. Joseph Finance & Loan Co., Mo.Sup., 163 S.W.2d 1017; Cirese v. Spitcaufsky, supra; City of St. Louis ......
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...Hayes v. Hayes, Mo.1944, 153 S.W.2d 1; State v. Hatton, 1950, 240 Mo.App. 1244, 228 S.W.2d 10; Phillips Pipe Line v. Brandstetter, 1953, 363 Mo. 904, 254 S.W.2d 636; Mesenbrink v. Boudreau, Mo.App.1943, 171 S.W.2d 728; McManus v. Burrows, 1919, 280 Mo. 327, 217 S.W. 512. As to federal juris......
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