Rippeto v. Thompson

• Court: Missouri Supreme Court
• Writing for the Court: Douglas, P.J.
• Citation: Rippeto v. Thompson, 216 S.W.2d 505, 358 Mo. 721 (Mo. 1949)
• Decision Date: 07 January 1949
• Docket Number: 40857,40946
• Parties: Morris Clifford Rippeto et al., Respondents, v. Guy A. Thompson, Trustee for Missouri Pacific Railroad Company, a Corporation

216 S.W.2d 505

358 Mo. 721

Morris Clifford Rippeto et al., Respondents, v. Guy A. Thompson, Trustee for Missouri Pacific Railroad Company, a Corporation

Nos. 40857, 40946

Supreme Court of Missouri

January 7, 1949

Appeal from Cole Circuit Court; Hon. Sam C. Blair, Judge.

Appeal in cause no. 40857 dismissed and in cause no. 40946 reversed.

Thomas J. Cole, Ragland, Otto, Potter & Embry and Forrest P. Carson for appellant.

(1) The county court has no jurisdiction over proceedings for the establishment of a private road. This cause was initiated under the provisions of Section 8488, Mo. R.S.A., for the establishment of a private way of necessity from the land of respondents to the public road. That statute was applicable under the 1875 Constitution of Missouri, which made the county court a court of record and gave it certain judicial functions. Art. VI, Secs. 1, 36, Constitution of 1875. (2) Under the above provisions of the 1875 Constitution the county courts were held to be courts of limited jurisdiction only. Missouri Elec. Power Co. v. City of Mountain Grove, 352 Mo. 262, 176 S.W.2d 612; Morris v Karr, 114 S.W.2d 962; State ex rel. Moser v Montgomery, 238 Mo.App. 1228, 186 S.W.2d 553. (3) The 1945 Constitution of Missouri, however, changed the county court from a court of limited jurisdiction to an administrative body for the conduct of county business. Art V, Sec. 1, Constitution of 1945; Art. VI, Sec. 7 Constitution of 1945; Journal of Proceedings of Constitutional Convention for March 7, 1944, p. 7; State ex rel. Kowats v. Arnold, 204 S.W.2d 254; Bradford v. Phelps County, 210 S.W.2d 996. (4) The determination of the issues involved in this cause is not an administrative act, but a judicial proceeding. State ex rel. Board of Education v. Nast, 209 Mo. 708, 108 S.W. 563; Gentry v. Fry, 4 Mo. 120. (5) The characterization of such a cause as a judicial proceeding is the more apparent by the inclusion in the statutes of a provision for a jury trial of the issue of damages if the person whose property is taken is not satisfied with the award of the commissioners. Sec. 8494, R.S.A., as re-enacted by Senate Bill 212 of the 64th General Assembly. (6) Furthermore, by the adoption of the emergency clause contained in Senate Bill 212, the Legislature recognized the lack of jurisdiction of the county court. (7) The county court has no jurisdiction to order a crossing of appellant's railroad track at grade. Under the 1945 Constitution of Missouri the county court is the business agency of the county. Its former authority of a judicial character was eliminated by the provisions of our present Constitution. Art. VI, Sec. 7, Constitution of 1945. (8) Even under its status under the 1875 Constitution the county court had no authority to order a grade crossing of a railroad track, since it was uniformly held to be a court of limited jurisdiction, having only such powers as were given to it by statute. See cases cited under Point (2). (9) The jurisiction of the circuit court on appeal, being derivative, must stand or fall on the jurisdiction of the county court. Platte County v. Locke, 294 Mo 207, 242 S.W. 666; Morris v. Karr, 114 S.W.2d 962. (10) Since 1913 the Public Service Commission of Missouri has had exclusive jurisdiction over the establishment of grade crossings of railroad tracks in this State. Sec. 5627, Mo. R.S.A.; Liddle v. Thompson, 236 Mo.App. 1071, 162 S.W.2d 614; City of St. Louis v. St. Louis-S.F. Ry. Co., 330 Mo. 499, 50 S.W.2d 637; American Pet. Exchange v. Public Serv. Comm., 238 Mo.App. 92, 172 S.W.2d 952. (11) The road which respondents seek, although denominated a "private" road, is, under the law, a public road, since it is free to be traveled by all persons as a public road. Sec. 8497, Mo. R.S.A., as re-enacted by Senate Bill 212 of the 64th General Assembly; State v. Van Patton, 230 Mo.App. 1199, 94 S.W.2d 1119; Belk v. Hamilton, 130 Mo. 292, 299, 32 S.W. 656; Richter v. Rodgers, 327 Mo. 54, 37 S.W.2d 523; Kansas City v. Mo. Pac. R. Co., 229 S.W. 771.

Lauf & Bond for respondents.

(1) The power given to county courts to establish private ways of necessity are the exercise of administrative power rather than judicial power. In its technical sense judicial power implies the construction of laws and the adjudication of legal rights. 50 C.J.S. 569. (2) The acts of the county court in hearing a cause for a way of necessity under the statutes are ministerial only. 50 C.J.S. 561. (3) The so-called "jury" passes on no question other than that of damages and thus are far different from a real jury which passes on various questions of fact, and who applies the law. It would be just as accurate to call this county court jury a "board of appraisers" since they merely assess damages. Sec. 8494, R.S. 1939. (4) The ways of necessity established under Sections 8488-8495, R.S. 1939, when established are not public roads within the meaning 5627, R.S. 1939, requiring the Public Service Commission to order in grade crossings on public roads. The legislature in passing the statutes providing for a way of necessity repeatedly referred to such ways once established as private roads. Secs. 8488, 8489, R.S. 1939. (5) The courts have referred to these ways of necessity established by the county court, as private roads. Allen v. Welch, 102 S.W. 665; State ex rel. McDermott Realty Co. v. McElhinney, 151 S.W. 457; 50 C.J., Private Roads, p. 379. (6) Public Service Commission jurisdiction over grade crossings is limited to crossings of public roads and does not include crossings of private roads. Sec. 5627, R.S. 1939. (7) Since appellant has had the benefit of a trial de novo before the Circuit Court of Cole County he has had all that he may demand under Senate Bill 212 of 64th General Assembly. State ex rel. McDermott Realty Co. v. McElhinney, 151 S.W. 457; Senate Bill 212; Sec. 2490 R.S. 1939. (8) The first appeal taken by appellant, Case Number 40,857, must be dismissed by the court for the reason that at the time the appeal was taken there was no final judgment or order and the purported appeal was premature. The second appeal taken in Case Number 40,946 in this court covers the entire case. Civil Code of Procedure, Laws 1943, sec. 126, p. 390.

OPINION

Douglas, P.J.

This proceeding under the statutes to establish a private road was instituted in the County Court of Cole County after the Constitution of 1945 had removed judicial power from county courts, and had rendered ineffective statutes inconsistent with the new Constitution.

In this situation, the jurisdiction of the county court over this proceeding under the new Constitution is the decisive question for determination by this court.

The case is here because this court has exclusive appellate jurisdiction in all cases involving the construction of the Constitution. Cons. (1945) Art. v, Sec. 3.

Briefly the facts are these. Plaintiffs petitioned the county court to establish a private road from their premises to a public road in accordance with the statutory procedure. Their premises adjoined the Missouri Pacific Railroad right-of-way on the west. A public road adjoined the right-of-way on the east. Plaintiffs sought the establishment of a private road across the railroad right-of-way from their premises to the public road.

Plaintiffs filed their petition in the county court pursuant to the procedure provided in Section 8488 R.S. 1939, RSA, for the establishment of private roads. The county court appointed commissioners, the commissioners viewed the premises and marked out a private road twenty feet wide and sixty-six feet long (the width of the right-of-way) across the railroad right-of-way. The county court entered judgment establishing such private road. Defendant appealed to the circuit court. The circuit court, after a hearing to determine whether plaintiffs were entitled to a way of necessity, entered an interlocutory order in their favor. Cause No. 40,857 in this court is an appeal from that order. That appeal was premature and should be dismissed.

The circuit court after proceeding anew entered final judgment establishing the same private road across defendant's right-of-way. Defendant has appealed from this judgment.

Our conclusion is the judgment should be reversed for want of jurisdiction. The statutes governing the taking of private property for a private road against the consent of the owner were not effective during the entire course of this proceeding because they were inconsistent with the new Constitution (1945). Taking of private property for private use is permitted by the Constitution (1945) only when it is done in strict conformity with statutory authority.

The old Constitution (1875) was the first constitutional authority in this state for the taking of private property for private ways of necessity against the consent of the owner. Article II, Section 20 of [358 Mo. 725] the Bill of Rights of that Constitution provided in part: "That no private property can be taken for private use, with or without compensation, unless by the consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes, in such manner as may be prescribed by law; . . ."

The procedure for taking private property for private ways of necessity authorized by this provision and for governing private roads was set up by the legislature in Sections 8488-8501. Such procedure was followed in this case. These statutes provide that an inhabitant may present his petition in the county court for a private road from his premises to a public road. The court shall then appoint commissioners who are to mark out the road. The commissioners report to the county court, and it makes its findings...