Richter v. Rodgers

• Citation: 37 S.W.2d 523,327 Mo. 543
• Decision Date: 31 March 1931
• Docket Number: 28976
• Parties: Henry Richter v. Sarah Rodgers and Amanda Freeman, Appellants
• Court: United States State Supreme Court of Missouri

37 S.W.2d 523

327 Mo. 543

Henry Richter v. Sarah Rodgers and Amanda Freeman, Appellants

No. 28976

Supreme Court of Missouri

March 31, 1931

Appeal from Barry Circuit Court; Hon. Charles L. Henson Judge.

Affirmed.

Horace Ruark and Leo H. Johnson for appellants.

(1) Private roads can only be established by order of the county court after appointment of three disinterested commissioners to view the premises, mark out the road and assess the damages. Sec. 10638, R. S. 1919. In the instant case disinterested commissioners were not appointed -- at least the record does not so show. Such a recital is a jurisdictional fact and its absence is fatal to the proceedings. City of Tarkio v. Clark, 186 Mo. 298. (2) A county court cannot establish a private road without having it affirmatively proven that the same is a way of necessity. A mere allegation to such effect in the petition therefor, is wholly insufficient. Such fact is a jurisdictional one, and its absence is fatal to the proceedings. Cox v. Tipton, 18 Mo.App. 450. (3) Appellants appeared before the county court and offered evidence to refute the allegations of the respondent in his petition for location of the private road sought across their premises, but the said court refused to hear any evidence whatsoever and peremptorily ordered the road established although these appellants were present in court with their witnesses to testify under oath in support of their objections and contentions. (4) The county court cannot, without a hearing, render a judgment locating a private road across the premises of another, when objections have been filed. Sec. 10641, R. S. 1919. In the instant case, objections to and denials of the allegations of respondent's petition were filed in writing therein with said court before the matter was taken up by the court, and before the court appointed any commissioners, and before any other proceedings or orders were had therein. (5) Such action by the county court violated both Section 20 and Section 30, Article II, Constitution of Missouri, and Section 1, Article XIV, Constitution of the United States. The prayer of respondent's petition, not even verified by oath of respondent or his attorneys in said matter, was granted and judgment entered thereon taking private property for private use, over the written protest, objections and denials of these appellants, duly and timely filed, and while present in court with their witnesses to support their contentions. (6) The circuit court should have heard the evidence at the hearing in such court on respondent's motion to dismiss such writ of error, offered by appellants in support of their allegation that no evidence was heard by such county court, because the same did not impeach the record, but simply tended to corroborate the record and the absence of certain jurisdictional facts not appearing therein.

D. H. Kemp for respondent.

(1) A judgment cannot be impeached collaterally on account of any illegality or insufficiency of evidence. Every act of a court of competent jurisdiction is presumed to have been rightfully done, where a decree contains the finding of a fact which is pleaded in the petition." Black on Judgments (2 Ed.) secs. 270, 296, 522. (2) The appellants now admit that the only question to be decided by this court, is, did the circuit court err in refusing appellants the right to contradict the judgment and decree of county court by showing that the county court refused to hear testimony pro and con?

Sturgis, C. Seddon and Ferguson, CC., concur.

OPINION

STURGIS

This suit originated in the County Court of Barry County, wherein plaintiff as petitioner filed in that court a proceeding to have established a private road for his use over land belonging to the defendants, as provided by Section 10638, Revised Statutes 1919. After stating that the petitioner owned and resided on certain land in that county and that no public road passed through or touched said land, he asked for the establishment of a private road twenty feet wide from his premises to connect same with the established public road from Fairview, Missouri, to Purdy, Missouri, over the lands of the defendants, describing same, and the petition then proceeds: "He further states that said road herein prayed for is one of great necessity and indispensable to petitioner, as he has no outlet to church, to post office, to market, or to school, and that the road herein prayed for is the most direct and convenient that could be selected and is now and has been for many years the location of a roadway which passes from the lands of petitioner, over the lands of others, to the public road herein mentioned."

The defendants appeared in said county court and filed therein what is termed an answer and response, in which defendants say:

"The undersigned expressly deny the allegation of petitioner's application, and state to the court that the proposed location of such private road is not a way of necessity. That the petitioner has several more direct and more convenient ways out from his said premises to the public road running east and west alongside the south section line just one mile south of the public road proposed to be joined by said petitioner by the route laid out or referred to in his said application. That said public road one mile south is not only a closer, more direct and a more convenient road, but permits the petitioner to secure his mail of a morning rather than during the afternoon of the same day, although on the same mail route; and also permits him closer connection with school, church and market. That private roads can be located by the petitioner at small cost and with consent of landowners through whose premises such road would pass, on section lines or quarter or half section lines, whereas the proposed road through the undersigned landowners' premises would greatly damage such owners beyond what the reasonable value of such damages would be in money, on account of the peculiar formation, location and width and length of the premises or tract of land sought to be invaded by the petitioner."

The defendants then state that the proposed private road would have to cross a certain water course and "that such water course is frequently impassable even for vehicular traffic, whereas the other proposed and suggested routes are ones in which the petitioner could travel at all times of the year, there being no water hazards therealong."

The defendants set out at some length and in detail how and why the proposed road would damage the defendants' land. The prayer is that the petition be dismissed.

The County Court of Barry County then rendered a judgment which, after reciting the appearance of the parties in person and by attorney, says: "Thereupon, the court having read and understood said petition and motion (answer), found that no public road passes through or touched said petitioner's premises and that a private road for petitioner's use and benefit should be established from his premises to connect with the public road of the County of Barry, as prayed in his petition. It is further ordered by the court that (three persons named therein) be and they are by the court appointed commissioners, to view the premises of the petitioner (describing the same), and also the premises of the landowners (describing the same), and to mark out the said road and to assess the damages, if any, to the said Sarah Rodgers and Amanda Freeman, after taking the oath as prescribed by law, and that said commissioners make their report to this court at its regular term, in the manner provided by statute."

This judgment and order appointing commissioners was entered in such county court on April 16, 1927. On that same day the defendants filed their affidavit for appeal to the circuit court, but said defendants, a few days later and before any order was made allowing the appeal, voluntarily dismissed the application for appeal and abandoned the same. Of course an appeal was then premature. The county court then renewed its order appointing the same persons as commissioners to view, mark out the road, and assess the damages. The commissioners complied with this order and filed their report marking out the road as directed and assessing damages to each defendant. This report was filed in the county court on May 4, 1927, at its May term, and on the next day, May 5, the county court made and entered judgment confirming this report of the commissioners specifying the particulars of the road by courses and distances and the amount of damages allowed each landowner, and then recites: "And it further appearing that said proceedings have been regular and no objection having been made thereto, it is hereby ordered by the court that said road be established according to the report of the said commissioners." The court further ordered the payment of the damages as assessed by the commissioners to the defendants and the costs.

The defendants at the same term of the county court and on May 13, 1927, notwithstanding the previous judgment confirming said report, appeared and filed objections and exceptions to said report of the commissioners, specifying as objections thereto, among other things: "First, because the county court rendered judgment in the above cause on the 16th day of April, 1927, during the regular February 1927 term of said court, establishing the private road described in the application of said petitioner Henry Richter without hearing any evidence whatever from any person or persons, including Sarah Rodgers and Amanda Freeman, who had entered their appearance in said cause and filed their motion therein denying that said proposed private road was a way of necessity, also setting forth other reasons why the application of said pe...