Seafield v. Bohne

• Decision Date: 14 October 1902
• Citation: 169 Mo. 537,69 S.W. 1051
• Parties: SEAFIELD v. BOHNE, Road Com'r, et al.
• Court: Missouri Supreme Court

69 S.W. 1051

169 Mo. 537

SEAFIELD v. BOHNE, Road Com'r, et al.

Supreme Court of Missouri, Division No. 1.

October 14, 1902.

COUNTIES — HIGHWAYS — OPENING — JURISDICTION — EXCEPTION — TRIAL — RECEIVING EVIDENCE SUBJECT TO EXCEPTION.

1. It is bad practice to hear evidence "subject to objection," and it is reversible error, where the matter is properly saved by exception.

2. Rev. St. 1899, § 9416, relative to opening highways, provides that, if the county court be of the opinion that the facts justify the location or change of the road at the expense of the county, they shall make an order of record requiring the county road commissioner to survey the road, or otherwise such proceeding shall be dismissed. The statute further provides that if the petitioners pay into the county treasury, for the use of the landowners, the probable amount of the damages, which shall be fixed at the time the order to the commissioner shall issue. Held that, where the petitioners pay the damages into the treasury, it is not requisite that the order should find a public necessity justifying its being opened at the expense of the county.

3. An order of the county court on an application to it under Rev. St. 1899, § 9416, providing for the opening of a road on the theory that the petitioners were to pay the damages, and that the court was satisfied that the damages would amount to nothing, and thereupon made an order for the road commissioners to view and mark out the road at the expense of petitioners, and report their proceedings, such an order was not a condemnation of the land of the parties through which the road would run, but only preliminary to other steps that might or might not result in a final judgment of condemnation, an error in such proceeding was only an error in judgment on a subject of which the court had full jurisdiction.

4. Rev. St. 1899, § 9417, relative to the opening of roads, provides that any party interested may file exceptions to the report of the commissioners appointed to assess damages. Held that, when no exceptions were filed, a landowner could not thereafter object that the commissioners were not disinterested freeholders, as required by statute.

5. Section 9416, relative to opening of roads, requires the road commissioners to estimate the cost of bridges, culverts, and grading, and make a survey and plat of the proposed road, and return it to the court. Held that, where the commissioners gave no estimate of the cost of the grading and culverts, but it was stated that the cost would be paid by petitioners, the failure to give the cost of the grading and culverts did not invalidate the proceedings.

6. Rev. St. 1899, § 9512, provides that all proceedings as to roads in a township shall be carried on under the general law up to such time as the county court shall declare the road opened, when all further matters relative to the road shall be under the control of the township. Held, that the fact that a township has adopted township organization and has a board of road commissioners does not affect the jurisdiction of the county court to establish a new road.

7. The fact that there was a crop of timothy growing on land in May, 1897, which was harvested in August of that year, should have had no influence in a proceeding for a perpetual injunction against an opening of a road through the land in November following.

Appeal from circuit court, Dade county; D. P. Stratton, Judge.

Suit by C. A. Seafield against Christ Bohne and others, as road commissioner of Lockwood township and justices of the county court, to restrain the opening of a road. From a judgment for plaintiff, defendants appeal. Reversed.

This is a suit in equity to enjoin the defendants, who are the judges of the county court of Dade county, and the road commissioner of Lockwood township, of that county, from opening a public road through plaintiff's land. The material statements in the petition are to the effect that the county court made an order to open a public road through plaintiff's land, and the defendant road commissioner is proceeding to execute the order; that the court was without jurisdiction, and the order void, for several reasons: (1) The notice required by law of the intended application for the opening was not given; (2) the court failed to assess the probable damages to plaintiff, refusing to consider the disadvantages to him, but assessed against him benefits that were common to the public; (3) the court did not find the fact that the road would be of such public necessity as to justify its being opened at the expense of the county; (4) the road commissioner appointed to view, survey, and mark out the road made his report, but failed to estimate the cost of bridges, culverts, and grading, and failed to report the amount of damages claimed by plaintiff, and failed to procure the right of way from two other owners of land through which the road was proposed; (5) the court appointed commissioners to assess plaintiff's damages, but had no jurisdiction to do so, for the reasons above given, and the commissioners assessed plaintiff's damages at $50, but the same had never been paid or tendered to plaintiff, or paid into court for him; (6) that at the date of the order for opening the road there was a crop growing on plaintiff's land, and no time was given him to harvest the same, and the crop at the time the suit was filed was still growing; (7) Lockwood township was organized as a municipal township at the time of these proceedings, and had a board of road commissioners, who alone had jurisdiction to open the road. The answer joined issue as to the facts on which the jurisdiction of the county court was challenged. It is conceded by the plaintiff that the petition for the opening of the road, which was the foundation of the proceeding in the county court, was sufficient and in conformity with the statute, and that it was duly filed. This petition the plaintiff introduced in evidence, and then offered the notice that was given, which was objected to by defendant, and the court ruled that it would be admitted subject to the objection. Plaintiff then introduced the order of the county court, of date November 16, 1896, which recited the filing of the petition and the notice thereof, which was in conformity to law. The order concludes as follows: "There being no remonstrance presented, the court heard all the testimony presented, and the court, after hearing the testimony, are of the opinion from the evidence that said proposed road is of public necessity and practicability, and the probable damages to landowners through which said proposed road shall run is nothing, the advantages and disadvantages to said owners being equal, and the expense of locating said road and opening the same, grading and bridging, is to be paid by the petitioners; and the court is of the opinion from the evidence that the facts justify the location of said public road at the expense of the petitioners; and there being no probable damages found by the court, and none required to be paid by the petitioners, it is therefore ordered by the court that the county road commissioner view, survey, and mark out such road at the expense of the said petitioners, according to law, and report his proceedings at the next regular term of said court." The next order of the county court was at the February term, 1897: "Now, at this day comes J. C. Hedgecock, county surveyor and ex officio road and bridge commissioner for Dade county, and makes report of his survey on the public road petitioned for by J. A. Higgins et al. Said surveyor reports that all the rights of way have been secured, except that of C. A. Seafield, which report is received by the court; and, it appearing from the report that C. A. Seafield has not given the right of way, it is therefore ordered by the court that Ewing Morris, Sam McMillin, and Bob West be, and they are hereby, appointed commissioners to hear complaints and assess damages that the said C. A. Seafield may sustain by reason of the establishing of said road over or through his lands. And it is further ordered that commissioners make report thereof at the next regular term of this court." Then followed in evidence the report of the commissioners, to which was attached a duly certified order of the county court, as follows: "In the Matter of the Petition for a Public Road. And now, the above cause coming on to be heard, and ___, road commissioner, having filed herein his report, and it appearing from said report that C. A. Seafield, through whose lands the proposed new road runs, has failed or refused to relinquish the right of way for the same, it is therefore ordered by the court that Ewing Morris, Sam McMillin, and Bob West, three disinterested freeholders of the county be, and they are hereby, appointed to act as commissioners to view the premises, hear complaints, and assess the damages which the said ___ may severally sustain by reason of the location of said new road, and make due report of their proceedings herein according to law." The report was in due form, and to the effect that the commissioners first notified all the parties in interest, except C. A. Seafield, who could not be found on his premises, and proceeded to view the premises and hear all the testimony offered, and assessed the damages of Seafield at $50. The report was returned into court April 3, 1897. At the May term the final order in the matter was made, as follows: "In the Matter of the Public Road Petitioned for by J. A. Higgins et al. Now, at this day, the 6th of May, 1897, it being the fourth day of term of this court, and the commissioners' report in the matter of the assessment of damages having been filed on the first day of the term of this court, allowing C. A. Seafield the sum of fifty dollars for damages to his said tract of land over which said road ran, and there being no written exceptions filed by said Seafield or any other interested par...