Ripkey v. Binns
| Decision Date | 30 March 1915 |
| Parties | J. G. RIPKEY, Appellant, v. H. P. BINNS et al |
| Court | Missouri Supreme Court |
Appeal from St. Clair Circuit Court. -- Hon. C. A. Denton, Judge.
Affirmed.
John B Mumma, C. T. Reddington and Waldo P. Johnson for appellant.
(1) The utmost strictness is required to give proceedings of eminent domain validity. Every essential requirement of the statute must be complied with or such proceeding will be void. Anderson v. Pemberton, 89 Mo. 61; Spurlock v Doran, 182 Mo. 242; Drainage District v Campbell, 154 Mo. 151; Taylor v. Todd, 48 Mo.App. 550; Cunningham v. Railroad, 61 Mo. 33; Rousey v. Wood, 57 Mo.App. 650. (2) Proceedings to open a public road must be taken in their entirety, and if they are void as to one of the parties in interest, they are void as to all. Anderson v. Pemberton, 89 Mo. 61; St. Louis v. Gleason, 15 Mo.App. 25. (3) On appeal to circuit court, trial should be de novo, including the question of the utility and public necessity of the proposed road and all questions in issue. R. S. 1899, secs. 9419, 1788, 4062, 4072; Mayes v. Palmer, 206 Mo. 293; Bennett v. Hall, 184 Mo. 407; In re Big Hollow Road, 111 Mo. 326; 5 Words and Phrases, 4493; Stutz v. Cameron, 254 Mo. 340. (4) The appointment of the commissioners to assess damages must show that they are disinterested freeholders of no kin to any of the parties. Jones v. Zink, 65 Mo.App. 409; R. S. 1899, sec. 9417. (5) The petition and the report of the road commissioners must be accompanied by the names of all resident landowners or the court acquires no jurisdiction. R. S. 1899, sec. 9414; Spurlock v. Doran, 182 Mo. 242; Bennett v. Hall, 184 Mo. 407. (6) Trustee and beneficiary in a deed of trust should be made parties. The word "owner" in statutes of eminent domain is used in a comprehensive sense and includes all persons having any interest in the land. 15 Cyc. 844; Railroad v. Baker, 102 Mo. 553; McShane v. Moberly, 79 Mo. 41; Mantz v. St. Paul, 52 Minn. 409; Gerrard v. Railroad, 14 Neb. 370; McCotter v. New Shoreham, 21 R. I. 43. (7) Jurisdictional questions can be raised at any time and the court should hear the motion to dismiss filed after judgment. Railroad v. Campbell, 62 Mo. 585. (8) Only benefits peculiar to the land of objector can be offset and the same benefit (that of obtaining a public road) shared by several persons is not a peculiar benefit and cannot be offset against damages. Newby v. Platt County, 25 Mo. 258; Daugherty v. Brown, 91 Mo. 32; Bridge Co. v. Stone, 194 Mo. 188; Hickman v. City, 120 Mo. 123; Bennett v. Hall, 184 Mo. 421; Lingo v. Buford, 112 Mo. 157.
Hargus & Johnson for respondents.
(1) A valid petition and notice confer jurisdiction on the county court in road cases. These were present in this case. R. S. 1899, sec. 9414; Sec. 10435, R. S. 1909; Halter v. Leonard, 223 Mo. 291; Seafield v. Bohne, 169 Mo. 547; Wilhite v. Wolf, 179 Mo. 479. (2) The trustee and beneficiary in a deed of trust on land and the grantor in a written contract for the sale of land are not "owners" in the sense as to make them necessary parties in a proceeding to establish a road. Warren v. Gibson, 40 Mo.App. 476; Schumacher v. Toberman, 56 Cal. 508; Railroad v. Sheldon, 53 Kan. 169; Railroad v. Bank, 52 Kan. 467; Rand v. Railroad, 50 Kan. 114; Gurnsey v. Edwards, 26 N.H. 224; Parish v. Gilmanton, 11 N.H. 293. (3) The petition and report of the road commissioners were accompanied by the names of all resident landowners. See authorities cited under proposition 2. (4) (a) The qualifications of the commissioners appointed need not appear of record but the court will be presumed to have followed the law. Sutherland v. Holmes, 78 Mo. 402; School District v. Yates, 161 Mo.App. 116. (b) Appellant having filed exceptions to the report of the commissioners in this case, the question as to the qualifications of the commissioners is out of the case. Bennett v. Hall, 184 Mo. 421; Stutz v. Cameron, 254 Mo. 358. (5) The appeal in this case was from the question of damages only. Sutherland v. Holmes, 78 Mo. 402; R. S. 1899, sec. 9419, now Sec. 10440, R. S. 1909. (6) A benefit may be special and peculiar to a tract of land of which a part is taken, although it accrues to a number of tracts in the vicinity, where all the tracts occupy a peculiar situation with reference to the improvements, by reason of which the benefit attaches. Rives v. Columbia, 80 Mo.App. 178; Railroad v. Fowler, 142 Mo. 670; Railroad v. McElroy, 161 Mo. 587; 15 Cyc. 771; Elliott's Roads and Streets (2 Ed.), p. 260, sec. 248.
This proceeding was begun, by petition filed in the circuit court of St. Clair county, to establish a public road. The petition was filed August 3, 1908, and was signed by about 60 freeholders of the municipal township in which the proposed road was to be located. Three of the petitioners resided in the immediate neighborhood of the proposed road.
The petition was accompanied by a list purporting to contain the names of all resident persons owning land through which said proposed road would run, together with a statement of those damaged and those who were willing to give land for the right of way. J. G. Ripkey, appellant herein, was not one of the petitioners, but his name was in the list of resident landowners owning land through which the proposed road was to run. The name of Thomas M. Johnson was also listed as one of the resident landowners owning land through which the proposed road would run.
Due and proper notice was given, as required by law, and, upon hearing, the county court ordered the county road commissioner to view, survey and mark out said land. Said commissioner made report to the county court and the court appointed a board of commissioners to assess the damages to the property owners who refused to relinquish the right of way. Said board of commissioners made report finding that J. G. Ripkey would not be damaged by the establishment of said road. Thereafter, and in due time, said Ripkey filed written exceptions to the report of the board of commissioners and a jury was appointed to assess his damages. Upon a hearing before the jury in the county court the jury found that he was not damaged by the proposed road. Thereafter, and in due time, said Ripkey took an appeal to the circuit court of St. Clair county.
Trial was had in the circuit court, before a jury, the jury finding that said Ripkey suffered no damage by reason of the establishment of the road. Upon the trial in the circuit court, said Ripkey filed a motion asking the circuit court to dismiss the petition for want of jurisdiction. The substantial allegations of the motion were (1) that the original petition was not accompanied by the names of all the resident persons owning land through which the proposed road would run, in that Thomas M. Johnson, the owner of a portion of the land through which the proposed road would run, was not named as the owner of that specific tract; and that one William C. Lucas, trustee, and the St. Clair Investment Company, a corporation, beneficiary, were the owners of an interest in a portion of the land sought to be taken, but were not named as such in the list filed with the original petition; (2) the record of the county court appointing commissioners to assess damages failed to show that the three disinterested petitioners were not of kin to any of the parties asking damages on account of the location of said road and that the report of said commissioners failed to show that they were sworn, prior to viewing the premises and passing upon the assessment of damages.
The evidence tends to show that the name of Thomas M. Johnson did accompany the original petition filed but he was not named as the owner of a certain tract of land, which it is claimed he then owned. The evidence further showed that William C. Lucas was the trustee and the St. Clair Investment Company the beneficiary in a certain deed of trust executed by said J. G. Ripkey and wife, prior to the institution of these proceedings, said deed of trust having been given on a portion of the land sought to be taken for the right of way and given to secure a note of said Ripkey. Said Ripkey, the mortgagor, was in possession of the premises and his name accompanied the petition. The evidence further showed that said Lucas and the St. Clair Investment Company had no further interest in said land except such interest as they might have under said deed of trust. The evidence further showed that said Lucas and the St. Clair Investment Company were not named as resident landowners in the list of such names accompanying the original petition.
The evidence on the question of benefits and damages is disclosed by the following stipulation which is copied into the abstract in lieu of a full transcript:
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