Seafield v. Bohne
| Decision Date | 14 October 1902 |
| Parties | SEAFIELD v. BOHNE et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Dade Circuit Court. -- Hon. D. P. Stratton, Judge.
Reversed and remanded (with directions).
J. M Hoskinson and William B. Skinner for appellants.
(1) In this case, respondent in his petition makes the simple general averment, "that he will be irreparably damaged" if the proposed road is opened up through his lands; he neither pleads nor did he offer any evidence at the trial, tending to show "how, in what way, and for what reason the threatened damages were irreparable;" and the request of appellants for judgment on the law, pleadings and evidence, at the close of the evidence in the trial court should have been granted. McKinzie v. Mathews, 59 Mo. 99; McPike v. West, 71 Mo. 199. (2) It is well settled in the jurisprudence of this State that county courts have original and exclusive jurisdiction to hear and determine, upon proper petition and due notice, whether a new road should be established over the route described in the petition; and when it appears upon the face of the proceedings that these jurisdictional facts have been ascertained and determined by the decision of such court then such decision is conclusive against a collateral attack. Lingo v. Buford, 112 Mo. 155; Ziebold v. Foster, 118 Mo. 354; Baubie v. Ossman, 142 Mo. 499. (3) A county court having become possessed of jurisdiction of the subject-matter and of the parties, by the filing of a proper petition and the giving of proper notice, a mere erroneous exercise of such jurisdiction would not render the entire proceedings open to successful collateral attack; the remedy in such case would be by certiorari or appeal. Southerland v. Holmes, 78 Mo. 399; Transportation Company v. Sims, 28 Mo.App. 64; United States v. Arrendo, 6 Pet. 691; Windsor v. McVeigh, 93 U.S. 278; Baubie v. Ossman, supra. (4) The road proceedings referred to in this record are geverned by sections 7796, 7797, 7798, 7799, 7800 and 7805, Revised Statutes 1889, except as amended by the Act of March 23, 1893 (Laws 1893, pp. 222-4, and Laws 1895, p. 248). These different sections of the statutes of 1889, amended as above stated, appear in the revision of 1899, and are therein enumerated as sections 9414, 9415, 9416, 9417 and 9423, respectively.
Edgar P. Mann for respondent.
(1) The right of eminent domain is in effect nothing more than a power to oblige the citizen to sell and convey his land when the public necessity requires it. Elliott on Roads and Streets (2 Ed.), sec. 234; Carson v. Coleman, 11 N.J.Eq. 106; Weekly v. Chicago, 61 Ill. 147. (2) The power to take private property for public use without the consent of the owner is in derogation of the rights of the citizen, and can only be justified on the ground of absolute necessity. Leslie v. St. Louis, 47 Mo. 477; Anderson v. Pemberton, 89 Mo. 65; Bill of Rights, sec. 21, Constitution. (3) The power to take private property for public use without the consent of the owner is a summary proceeding in derogation of common law and common right, and the utmost strictness is required in order to give it validity, and unless it affirmatively appears upon the face of the proceedings that every prerequisite of the statute conferring the authority has been complied with such proceeding will be void. Anderson v. Pemberton, 89 Mo. 61; Leslie v. St. Louis, supra; Whitley v. Platte Co., 73 Mo. 30. (4) It is no answer to say that certain things in a given enactment of the Legislature conferring the authority on county courts to open public roads do not appear to be essential. Everything is essential which the law has said should be done before this high prerogative right can be carried out and enforced. Anderson v. Pemberton, supra. (5) And unless upon the face of the proceedings had it affirmatively appears that every essential prerequisite of the statute conferring the authority has been complied with, every step from inception to termination will be coram non judice. Ellis v. Railroad, 51 Mo. 200. (6) It is a jurisdictional fact, which must affirmatively appear, that such road is a public necessity. Colville v. Judy, 73 Mo. 654; Jefferson v. Cowan, 54 Mo. 234; Railroad v. Campbell, 62 Mo. 585. (7) Injunction is the proper remedy in this case, and the question of insolvency or irreparable damage does not enter into it. McPike v. West, 71 Mo. 199; Carpenter v. Gresham, 59 Mo. 247; Jones v. Zink, 65 Mo.App. 415; Anderson v. Hamilton, 12 Ohio St. 635; Lakenon v. Railroad, 36 Mo.App. 372; Church v. School Dist., 55 Wis. 399. (8) In ordering the road opened at the expense of the petitioners, and in finding that petitioners would pay the expenses of bridging, making culverts and grading the county court exceeded its authority, and the order was void. Bell v. County Court, 61 Mo.App. 181. It was in violation of the Constitution and, hence, the act void in the county court to order the road opened, or for the road commissioner to proceed to open it until respondent's damages had been paid or deposited in court, not with the county treasurer, for his benefit. Bill of Rights, sec. 21; Elliott's Roads and Streets, sec. 234. (9) The county court is required, at every stage of the proceedings, as a condition precedent to its right to make any order upon the hearing of the petition for a public road, to find that the road petitioned for is a public necessity, and of such great public necessity as to justify its opening, bridging and grading at the expense of the county. R. S. 1899, secs. 9416 to 9418. (10) The failure of the court to find and recite in its record that the three commissioners appointed to assess respondent's damages were disinterested freeholders of the county, not of kin to either party, rendered their appointment and all subsequent proceedings void. Jones v. Zink, 65 Mo.App. 413; Fore v. Hoke, 48 Mo.App. 254; R. S. 1899, sec. 9417; Bill of Rights, sec. 21.
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: first, the notice required by law of the intended application for the opening was not given; second, 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; third, 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; fourth, 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; fifth, 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; sixth, 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; seventh, 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: ...
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