Schmidt v. Densmore

• Decision Date: 29 February 1868
• Citation: 42 Mo. 225
• Parties: JOHN ADAM SCHMIDT, Respondent, v. LYMAN DENSMORE, Appellant.
• Court: Missouri Supreme Court

42 Mo. 225

JOHN ADAM SCHMIDT, Respondent,

v.LYMAN DENSMORE, Appellant.

Supreme Court of Missouri.

February Term, 1868.

Appeal from Livingston Circuit Court.

Dixon & McFerran, for appellant.

I. It was error for the District Court to reverse the judgment of the Circuit Court on the ground of the smallness of the amount of the judgment, without any appeal on the part of the plaintiff.

II. The appellant's defense was complete, as he acted under the authority of the county road commissioner; and the Circuit Court erred in refusing to instruct the jury to that effect. (Gen Stat. 1865, p. 299, §§ 20, 21, 22; 36 Mo. 543-6; Pierce on Am. Rail. 168, and authorities therein referred to; 31 Me. 215, 216; 4 Wend. 668; 12 Mass. 466, 364.)

III. The act concerning bridges makes no distinction between the building of a bridge originally and the replacing of one that has been carried away or destroyed.

IV. The special remedy given by the statute to respondent, for property taken for public use, is exclusive, and bars a civil action or common law remedy for compensation or damages. (Lindell's Adm'r v. Hann. & St. Jo. R.R., 36 Mo. 543.)

Asper & Pollard, for respondent.

I. The road commissioner can only take timber, etc., or authorize others to do so, for the county. When the county builds a bridge, or repairs one, or the commissioner does it, then he can take timber, etc., or authorize it to be done. It is then taken for public benefit, and the principle of eminent domain applies.

II. The road commissioner builds or repairs a bridge for a guarantor, when he fails, on due notice; and then his power under sections 20 and 21 applies. (Gen. Stat. 1865, p. 299, §§ 20, 21.)

III. The principle of eminent domain does not apply to the case at bar. Here appellant was building the bridge. It was his property until accepted by the county; a contingency which might never occur. It was taking private property for private use. (Const. Mo. art. 1, § 16; 2 Kent's Com. 339, 340; Wilkinson v. Deland, 2 Pet. 657; Gardner v. Village of Newbury, 2 Johns. Ch. 162; 11 Wend. 149; 6 Paige, 146; Norman v. Hurst, 5 Watts & S. 170; Soulard v. City of St. Louis, 36 Mo. 553; 18 Wend. 9, 12; 19 Wend. 658, 674.)

IV. The only thing which will relieve a party from the consequences of his trespass-- i. e., from the penalty--is an honest belief that the property is his own. (Gen. Stat. 1865, p. 379, § 4; 12 Mo. 571.)

HOLMES, Judge, delivered the following opinion.

The petition appears to have been framed under an act concerning trespasses (Gen. Stat. 1865, ch. 76). The answer admitted the cutting of the timber as alleged, but justified the act under the provision of the statute concerning bridges (Gen. Stat. 1865, ch. 53). The evidence on the part of the defendant showed that he was the contractor or undertaker, under the road commissioners of the county of Livingston, by a written contract dated September 6, 1866, for the building of a county bridge over Shoal Creek, in said county, in accordance with specifications to be exhibited by said commissioners, and concluding in these words: “Said L. W. Densmore to furnish all the material required for said bridge, and to receive, as full compensation therefor, the sum of three thousand six hundred dollars, payable in warrants on the county treasurer of said county--one-half of said amount due and payable on the delivery of the material for said bridge, and the remainder on the completion of said bridge, as hereinbefore set forth; and to turn over and surrender to the party of the first part said bridge, when completed, upon the receipt of payment therefor. And the party of the first part agrees to put the party of the second part in possession of the right of way at said crossing, so far as necessary for the purpose of construction, and to pay for said work, as above specified, and to receive from the said party of the second part the said bridge as soon as the same is completed, and certify the fact to the County Court of Livingston county, aforesaid.” It further appears that the contractor, on proceeding to the execution of the work, finding, upon diligent inquiry and search, that he could not purchase the requisite timber in the vicinity, procured the commissioner to go with him upon the adjoining lands of the plaintiff, where suitable timber was found, and with his special permission and authority proceeded to cut and carry away from thence the amount of timber trees which were required for the building of the bridge in question; and that this was the trespass complained of.

The court below instructed the jury for the plaintiff, upon the theory that the defendant's evidence did not bring his acts in the premises within the protection of the statute relating to bridges, which provided that the commissioner might take or cause to be taken from the adjoining or most convenient lands such quantities of rock and timber as might be necessary for the building or repairing of such bridge (ch. 53, § 20), but that, having contracted to furnish the materials, he was a trespasser upon the lands of another, without any authority of law. Treble damages were refused, on the ground that he supposed that he had a lawful right. On appeal by the defendant to the Fifth District Court, the plaintiff was held to be entitled to treble damages, and the judgment was therefore reversed, and the cause remanded for further proceedings in accordance with that opinion; and from this judgment the defendant appealed to this court.

It is not denied, on the part of the plaintiff, that if the defendant's justification brought his acts within those provisions of the statute concerning bridges which authorize the taking of timber necessary for building bridges, and provide a special remedy for the party aggrieved, the case would fall within the decision in Lindell's Adm'r v. The Hannibal and St. Joseph Railroad Company, 36 Mo. 543, and would be determined in defendant's favor by the principles therein enunciated. We have to consider, then, what is the proper construction of this statute in this regard, and whether it can be invoked in aid of this defense. By this act the County Court is to determine what bridges shall be built by the county, and to order the road commissioner to contract for the building of the same, upon an estimate and appropriation previously made. The commissioner is to let the work by contract; he cannot be the undertaker or contractor himself. The expense of building the bridge is to be paid out of the county treasury. The act makes provision, also, for the building of bridges, upon a petition of forty resident householders; for building bridges over water-courses which divide one county from another; for the building of bridges by road districts, and for the repair of any public bridge in the county; and whenever any such public bridge shall be repaired, the like preliminary steps are to be taken as in the case of building a bridge, and the commissioner is to have the same powers and proceed in like manner as a commissioner for building a bridge. No commissioner is to be an undertaker, nor a security for an undertaker, for building the bridge for which he is commissioner. The concluding sections (20-22) relate to the taking from the adjoining or most convenient lands the rock and timber necessary for building or repairing bridges, and they prescribe the mode in which a reasonable compensation is to be made to the owners therefor. This mode of compensation, on the authority of Lindell's Adm'r v. Hannibal and St. Joseph Railroad Company, must be held to be exclusive of the common law remedies in cases to which it has application. The words of the statute are, that “he, the commissioner, may take, or cause to be taken,” the necessary timber for the building or repairing of such bridge, and he is to build or repair a public county bridge by contract with some undertaker, and under the order of the County Court.

The several sections of the statute are to be construed together, and each section to be interpreted in view of the general object and intention of the whole act. There is the same necessity for taking private property for public use, in this manner, for the building or repairing of public bridges, in whichever of the cases provided for a county bridge is to be built or repaired. The authority given to take rock and timber on the adjoining private lands is not confined by any words to either case alone, but is broad enough in its terms to embrace all the specified cases of county bridges. The County Court, the commissioner, and the contractor or undertaker, were all alike the agents of the county, and derived their powers and authority from the provisions of the law. The commissioner was subordinate to the County Court, and the contractor was under the directions of the commissioner. They were all bound to pursue the authority given, and to act within the scope of the powers conferred. (Wolcott v. Lawrence Co., 26 Mo. 272.) In this case, the court said, in relation to the powers of the County Court and their subordinate agents in the erection of county buildings under a somewhat similar statute, that the court had no power over the subject but what was given by law; that every person who deals with the court, acting on behalf of the county, is bound to know the law that confers the authority; and that if the special and limited authority conferred by the statute is exceeded in a material matter, the county will not be bound. While they must derive all their power from the law, and keep within the scope of their authority, it is equally clear that they may exercise all the powers which are conferred upon them. When a commissioner is once lawfully appointed, he becomes vested with all the powers conferred by the act on such officer acting under the orders of the County Court. When an individual is employed as an undertaker, or becomes a contractor, under the commissioner, for the building or repairing of a public county...