Quayle v. M., K.&T. Ry. Co.
| Decision Date | 31 October 1876 |
| Citation | 63 Mo. 465 |
| Parties | WILLIAM QUAYLE, Appellant, v. M., K. & T. RAILWAY CO. AND THE TEBO & NEOSHO RAILROAD CO., Respondents. |
| Court | Missouri Supreme Court |
Appeal from Randolph Circuit Court.
McCanne & Rutherford, for Appellant.
I. The report of the commissioners appointed to assess the damages on plaintiff's land is not valid and binding. Where an act requiring the exercise of judgment is to be performed by a board of commissioners, it must affirmatively appear that all of said commissioners, acted and exercised their judgment and influence in the premises. ( Ex parte Rogers, 7 Cow. 530, note; Wood vs. Phelps Co. Court, 28 Mo. 119.)
II. In proceedings for the condemnation of private property, the statute for that purpose must be strictly complied with, and unless the proceedings are had strictly in accordance with the provisions, the same are utterly null and void.
III. In this case there was no such report of the commissioners as would authorize the court in which the same was made to enter up a judgment of condemnation, and such judgment was “ coram non judice,” and being nugatory and void, the same may be attacked collaterally, and the testimony offered by the plaintiff for that purpose should have been admitted, especially when the same parties were in court in this proceeding and all parties in interest who were parties in the proceedings had for the condemnation of the land. The judgment of condemnation and all the proceedings for that purpose being “ in invitum, ” and summary in their nature, are subject to review and attack in the case at bar, notwithstanding the same were had in a court of general jurisdiction; in such case the court stands upon the same footing as those tribunals whose jurisdiction is special and limited, and their proceedings have uniformly been held as subject to review and attack in cases like the case at bar. John Montgomery, Jr., for Respondents.
It is a general and well settled principle of law, that a pow of a judicial character, or where the act is of a public nature and the authority is conferred by law on three or more persons, a majority may legally execute the same, if all have had an opportunity to act, or have been notified and refuse. It is not necessary that they should all meet and consult. (Groton & Ledyard vs, Hurlburt, 22 Conn. 189; Crone vs. Daniels, 20 Conn. 333; Gallup vs. Tracy, 25 Conn. 17; Jones vs. Andover, 9 Pick. 150; George vs. School Dist., 6 Metc. 511; Howen vs. City of Lowell, 5 Metc. 42; Damon vs. Granby, 2 Pick. 352, where the distinction is stated between public and private bodies, 2 Pick. 33, note 1, and authorities there cited; Walkert vs. Rogan, 1 Wis. 614; also Soens vs. City of Racine, 10 Wis. 271; 8 Black, 455; 3 Ind., 452; Williams vs. School Dist., 21 Pick., 82; Rollin vs. Phelps, 5 Minn. 467; Comm'rs vs. Bumgarter, 51 Ill. 258; Lonk vs. Wood, 25 Ills. 262; Comm's of Alleghaney Co. vs. Leckey, 6 Serg't & R. 170; McCready, vs. Guardians of Poor, 9 Ib. 99; Commonwealth ex rel. Hall vs. Canal Comm's, 9 Watts, 470; Sto. on Ag'cy, § 42, note 6; 2 Kent's Com. § 623, note; Ang. & Ames on Corp. 459, et seq.; 1 Kyd on Corp. 422; 2 Kent's Com. 293; Withmel vs. Gartham, 6 Term, 387; Field vs. Field, 9 Wend., 394; Dennis vs. Maynard, 15 Ill. 478; Com. ex rel., Hall vs. Can. Com. 9 Watts, 471.)
This is a collateral proceeding, and the validity of the condemnation cannot be called into question in this proceeding. .)NORTON, Judge, delivered the opinion of the court.
This is an action of ejectment brought by plaintiff to recover a tract of land in Randolph county, upon which the railroad of defendant had been constructed.
The Missouri, Kansas and Texas Railroad Company, in its separate answer, alleges that its co-defendant in March, 1872, commenced proceedings before the judge of the circuit court of Randolph county to obtain the right of way over the lands sued for; that on the 16th of March, 1872, a petition was presented to said judge for that purpose, of which due notice had been given plaintiff; that three commissioners were appointed to view the land and assess the damages, who were required to report their proceedings to the court; that said commissioners on the 11th of April, 1872, made out, under oath, their report, and filed the same in the office of the clerk of the circuit court of Randolph county, in which they assessed the damages to plaintiff at twenty-five dollars; that said report, on the 27th of May, 1872, was presented to the circuit court of said county, and, no exceptions or objections having been filed thereto, the court rendered a verdict thereon in plaintiff's favor for the damages assessed, and made an order vesting title in the Tebo and Neosho road; and that said company paid into the hands of the clerk the said sum of twenty-five dollars. Defendant further alleges that by agreement with the said Tebo and Neosho road it entered into possession of the railroad, built on said land, as tenant or lessee.
The Tebo and Neosho road filed its separate answer, setting up the same facts in regard to the condemnation of the land in dispute as are charged in the answer of its co-defendant, and alleging that it was occupying and using the land by its tenant, the co-defendant, by operating its railroad over it. This defendant also sets up in its answer, that long before it commenced the construction of its road bed over the land sued for, plaintiff lived on land adjoining, and well knew that defendant had entered on the land and was constructing its road over it, and making large expenditures of money thereon, and stood by making no objection; that said defendant is using said road as a common carrier, and is a highway extending through the entire length of the State, etc. To these separate answers plaintiff filed replications, denying the allegations therein.
On the trial of the cause defendants, to sustain the issues presented by them, offered in evidence the notice of application for the appointment of commissioners, the petition for their appointment, the order of the judge appointing them, the report of the commissioners, and the judgment of the court on their report.
Plaintiff objected to the introduction of the judgment of the court on the report of the commissioners, which objection was overruled, and he excepted.
The defendant introduced a witness who testified that the commissioners passed over the land in question; that he saw them on it. They made the report a few days after that. One of the commissioners, McLean, refused to sign the report that the commissioners were all on the ground.
The plaintiff offered to show by Finnis McLean, one of the commissioners, that six days before the action of the other two commissioners, appointed on the commission to condemn the land, he resigned his appointment, and so notified the defendants and the court in open session; that he never acted nor pretended to act with the other commissioners in the condemnation of plaintiff's land; that he was not then a commissioner in the cause, and had not been for six days prior thereto; that he had resigned in open court, and so notified the defendants, and that defendants so understood it.
To the introduction of this evidence defendants objected, which objection was sustained by the court, to which plaintiff excepted.
Plaintiff thereupon took a non-suit with leave to move to set the same aside, filed his motion for that purpose and for a new trial, which was overruled, and final judgment entered for defendants, from which plaintiff appealed.
The evidence in this case shows that the plaintiff was duly notified of the application of defendant to have the land in dispute condemned, so that its road might be constructed over and through it; that in conformity to this notice one of the defendants did present a petition to the judge of the circuit court of Randolph county, in which the land was situated, in which it was averred that plaintiff was the owner of the land in question; that the line of his road was located upon and through it, and that plaintiff had refused to relinquish the right of way to the company, or make a voluntary conveyance to defendants; that the judge appointed three commissioners according to the prayer of the petition, to assess the damages and make report of their proceedings; that subsequently the commissioners made the following report:
WM. QUAYLE, Defendant.
The undersigned, N. G. Mattock, G. W. Dameron, F. McLean, commissioners appointed by the judge of the Randolph circuit court, in obedience to the order of said court, respectfully report that we have reviewed the lands described in said order to-wit: part of E. half of N. W. quarter section 13, township 53, range 14, west, and taken into consideration the value of the land, and the advantages and disadvantages of the railroad to the same, and do hereby...
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