Spurlock v. Dornan

• Decision Date: 31 May 1904
• Citation: 182 Mo. 242,81 S.W. 412
• Parties: SPURLOCK v. DORNAN et al.
• Court: Missouri Supreme Court

81 S.W. 412

182 Mo. 242

SPURLOCK v. DORNAN et al.

Supreme Court of Missouri, Division No. 2.

May 31, 1904.

MARRIED WOMEN—AGENT AS TO REAL ESTATE— HIGHWAYS—PROCEEDINGS TO OPEN—JURISDICTION —RECORD—INJUNCTION.

1. A married woman cannot have an agent, though he be her husband, as to land owned by her in fee.

2. Under Rev. St. 1899, § 9416, providing that in proceedings to open a public road the court shall hear remonstrances, and shall appoint a commissioner, who shall take the names of resident owners of land through which the road runs who have not or will not give the right of way, the commissioner not having taken the names of such owners, the court is without jurisdiction to establish the road.

3. The taking of private land for a highway without tender of compensation or assessment of damages, there being no relinquishment of right of way, and no waiver, and jurisdiction not being obtained in the proceedings to open the road, is ground for equitable relief.

4. In eminent domain proceedings every jurisdictional fact must appear on the face of the record.

Appeal from Circuit Court, Morgan County; James E. Hazell, Judge.

Injunction proceedings by Nannie Spurlock against R. E. Dornan and others. Judgment for defendants. Plaintiff appeals. Reversed.

Wm. Forman, for appellant. J. W. Jamison, D. E. Wray, and Amos A. Knoop, for respondents.

BURGESS, J.

This is an injunctive proceeding, the purpose of which is to restrain and enjoin the judges of the county court and the road commissioners of Haw Creek township, of Morgan county, from proceeding to open a public road through plaintiff's land in conformity with an order and judgment of said court made and entered of record on the 14th day of November, 1900. The grounds upon which the injunction is sought are that the defendants have in no way complied with the statutes providing for the opening of public roads. Upon the presentation of the petition to the circuit court a temporary injunction was granted as prayed for in plaintiff's petition. Thereafter, at the April term, 1901, of said circuit court, at the trial of the cause, the circuit court dissolved the temporary injunction, dismissed the bill, and rendered judgment against plaintiff for cost; hence plaintiff's appeal.

The facts, briefly stated, are about as follows: At the time of the commencement of the proceedings to open the road, and for many years prior thereto, plaintiff was the owner in fee of the land through which it was proposed to locate said road, having inherited a part of it and acquired the balance by purchase in 1878 and 1886, at which times she was the wife of Haywood Spurlock, to whom she had been married for 25 years at the time of the trial, and by whom she had borne nine children. Plaintiff was not a party to the proceedings in the county court, except to a remonstrance against the location and opening of the road and as one of a number whose interest would be affected by it. She testified that she was not interviewed by the road commissioner; that she had never relinquished her right of way for said road; that she had not received a single dollar by way of damages for the injury done to her lands. The road commissioner, D. W. Eaton, was permitted by the court, over the objections of plaintiff, to testify that she had told him to see Mr. Spurlock (her husband), and whatever he did would be all right. This was denied by her. The court also, over the objections of plaintiff, permitted the introduction in evidence of a county warrant delivered to Haywood Spurlock (plaintiff's husband), and by him collected, in the sum of $140. The commissioners appointed by the county court to assess damages of parties failing to relinquish the right of way over their lands had assessed the damages of Haywood Spurlock at that sum. Plaintiff's contention is that her husband, Haywood Spurlock, was entitled to damages by reason of his curtesy and other marital rights in his wife's real estate; and that the damages resulting to the lands through which the proposed road was to be run by way of lessening the value of said lands belonged to her. The commissioners assessed no damages for plaintiff. The commissioners appointed by the county court to assess the damages were Conway Jones, T. M. Hunter, and J. W. Cooper. The report of the commissioners is only signed by two, viz., T. M. Hunter and Conway Jones. Conway Jones, one of the commissioners who was appointted to assess the damages, is the same Conway Jones who was at the time one of the road commissioners of the district. Plaintiff insists that Conway Jones, being one of the road commissioners of the district, was not disinterested, and therefore the report of himself and T. M. Hunter is void. She also insists that by reason of the action on the part of the petitioners for said proposed new road, the county court, road commissioners, and the commissioners appointed by the county court to assess damages, in ignoring the rights of plaintiff, the temporary injunction should have been made permanent.

The first point presented on this appeal is with respect to the action of the court in admitting in evidence on the part of defendants, over the objection of plaintiff, evidence tending to show the agency of her husband, Haywood Spurlock, in regard to the location and opening of the road through her land, and the receipt by and collection by him of a county warrant for the sum of $100 in payment of damages awarded him for taking her land. The title to the land was held by plaintiff in fee, and not as her separate equitable estate; and it was held in ...