Shively v. Lankford

• Decision Date: 31 March 1903
• Citation: 174 Mo. 535,74 S.W. 835
• Court: Missouri Supreme Court
• Parties: SHIVELY v. LANKFORD et al.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 835

174 Mo. 535

SHIVELY v. LANKFORD et al.^*

Supreme Court of Missouri, Division No. 2.

March 31, 1903.

HIGHWAYS — ALTERATION — TOWNSHIP ROAD LAW — CONSTITUTIONALITY — COMMISSIONERS TO ASSESS DAMAGES — PAYMENT OF DAMAGES — JUDICIAL NOTICE — APPEAL — STATUTES — TITLE.

1. There was a difference in many material respects between the general road law and the township organization road law in force when Act 1893 (Laws 1893, p. 222) was passed. This act was entitled an act to amend and repeal certain named sections of the general road law, no references being made to the township organization law; and this was done in the first four sections (pages 222-224) of the act, while a fifth section (page 224) made the provisions of the act apply to counties under township organization. Held, that this fifth section was in violation of Const. art. 4, § 28, providing that no bill shall contain more than one subject, which shall be clearly expressed in its title.

2. Under Rev. St. 1889, § 8549, providing that, if it appears to the township board that those petitioning for the establishment or changing of a road cannot agree with a property owner who has refused to grant a right of way as to the damages he is entitled to, the board shall appoint commissioners to appraise the damages, a statement in the record that "it appeared to the board" that the petitioners could not agree with a property owner as to his damages sufficiently showed that the board had acquired jurisdiction to appoint commissioners.

3. While the township organization law is a general law, of which all the courts of the state take judicial notice, they will not take notice that it exists in, or has been adopted by, a particular county.

4. In proceedings to change a road under the township organization road law, neither the township board nor the county court made a finding as to whether the county had adopted township organization, and thus given legal existence to township boards, and no question of the adoption of the law was raised until by a motion to dismiss made in the circuit court on appeal. The returning board's finding that the law had been adopted was on record in the county court. Held, that evidence of the adoption of the law was admissible on the hearing of the motion in the circuit court.

5. Where, in proceedings for the change of a road under the township organization road law, it was shown on the hearing of an appeal in the circuit court that the county had adopted township organization, the presumption that the general road law was in force in the county was rebutted.

6. Though the township organization road law falls short of the requirement of Const. art. 2, § 21, in that it permits a commission of "householders" to ascertain the damages for property taken for a highway, while the Constitution requires such assessment to be made by "freeholders," this does not render the whole act invalid, and it can be enforced by requiring the commissioners to be freeholders.

7. Under Const. art. 2, § 21, providing that compensation for property taken for public use shall be ascertained by a jury of not less than three freeholders, the Legislature has authority to provide for the assessment of damages caused by the location of a highway by a commission of three householders; the law permitting an appeal to the county court, and giving the owner the right to have his damages ascertained by a jury in such court.

8. Under Const. art. 2, § 21, providing that private property shall not be taken for public use until just compensation has been paid to the owner, or into court for him, the Legislature has the right to provide that, in counties under township organization, damages assessed for the taking of land for a highway shall be paid to the township trustee if the owner refuses to receive them.

9. Where an order of court in proceedings for the alteration of a highway in a county under township organization provided that the change should not be made until the assessed damages had been paid to the owner of the property to be taken, or, if he refused to accept, then to the township trustee for him, the order complied with the requirements of the Constitution.

10. Under Rev. St. 1889, § 8556, restricting the circuit court to a consideration of questions of law in an appeal in proceedings for the assessment of damages for the taking of land for highways, a finding by the township board and county court that all the other property owners have relinquished the right of way for the proposed road is binding on the circuit court on appeal.

11. Where, in proceedings for the assessment of damages for the right of way for a road in a county under township organization, the township board and county court had found that all the other property owners had relinquished their right of way, and no objection was made, till in the circuit court, that the holder of the legal title to certain land had not relinquished his right of way, the objection will not be considered, especially as it appears that the equitable owner in possession of the land had relinquished his right.

Appeal from Circuit Court, Daviess County; E. J. Broaddus, Judge.

Petition by E. S. Lankford and others for the change of a highway. From the award of damages made by the commissioners, John W. Shively, a property owner, appealed to the county court, where judgment was rendered in his favor, and then to the circuit court, which affirmed the judgment of the county court, and he again appeals. Affirmed.

Crosby, Johnson & Son and Sleby & Given, for appellant. Jas. E. Goodrich and Henry K. Allen, for respondents.

GANTT, P. J.

This proceeding was commenced by filing with the township board of Monroe township, in Daviess county, a petition to vacate a part of an old road, and in lieu thereof establish a new road; the purpose of the alteration being, apparently, to have the road conform to government lines, and thus accommodate more people in the neighborhood. The petition stated all the necessary jurisdictional facts, and the requisite notice was posted for more than 20 days. The proof of notice was made, and the township board ordered the survey to be made by the county surveyor, and that relinquishments of right of way should be taken, and the names of those who refused to relinquish, and an estimate of the cost of all bridges that might be needed. In due time the surveyor made report of his survey, and of the amount of land required to be taken from each owner, and filed a plat. The cost of culverts he estimated at $20. The report was spread on the records of the board, and it appearing that John W. Shively refused to relinquish right of way, and that he and the petitioners could not agree as to the damages he would sustain, three disinterested commissioners, freeholders and householders of the township, were appointed to assess his damages by reason of the appropriation of his land for said new road, and ordered to report their assessment under oath, which they did on May 20, 1899. They assessed Mr. Shively's damages at $68, and thereupon the board approved the report, and ordered that the petitioners pay to him the said sum, and, in the event he refused to accept it, to pay the same to the trustee of said township for his use. And thereupon the board made its order discontinuing the old road and establishing the new road. Mr. Shively thereupon filed his affidavit and bond for appeal to the county court, which was granted. At the August term, 1899, the appeal was heard in the county court, and a jury of twelve good and lawful men, all freeholders of said county, three of whom were from Union township, which township adjoined Monroe township, were duly impaneled, and assessed Shively's damages at $165; and judgment was rendered that the petitioners pay him that sum, and, if he refused to accept it, to pay it to the trustee of Monroe township to his use, and upon the payment thereof the new road was ordered established, and the old road vacated. Shively again appealed to the circuit court, and in that court moved to dismiss the proceeding for 21 different reasons, which motion was overruled, and the judgment of the county court in all things affirmed. A motion for new trial was filed and overruled, and Shively appealed to this court.

1. An exceedingly important question arises out of this appeal. It is insisted that when this proceeding was instituted there was no law of this state, in force in counties organized under the township organization act, authorizing a township board to entertain a petition to condemn lands for road purposes. Prior to 1893, sections 8547-8550, Rev. St. 1889, which were enacted in 1883 (Laws 1883, pp. 206, 207), conferred jurisdiction on township boards, in counties organized under the township organization law, to hear and determine applications for the establishment of new roads and alteration of old roads, and to appoint commissioners for that purpose to assess the damages arising from the appropriation of real estate for such new roads, and to establish the same. But the insistence is that in 1893 the General Assembly repealed said sections by implication, and conferred the power solely on the county courts to establish roads, and then, by Act 1897 (Laws Mo. 1897, pp. 217, 218), repealed the amending statute in so far as it applied to counties acting under township organization, without re-enacting any law in lieu thereof, and hence since 1893 township boards have had no authority to establish new roads, and since 1897 there has been no law permitting county courts to establish roads in counties acting under township organization. The proposition that the General Assembly for a number of years has left the county authorities of 17 large and populous counties without the power to establish or vacate a public road is somewhat starting. This contention is based upon the several acts already noted. In 1893 the General Assembly passed an act entitled "An...