State ex rel. State Highway Com'n v. Moore

• Decision Date: 27 March 1929
• Parties: The State ex rel. State Highway Commission v. R. A. Moore and Flora Moore et al., Appellants
• Court: Missouri Supreme Court

18 S.W.2d 892

322 Mo. 329

The State ex rel. State Highway Commission v. R. A. Moore and Flora Moore et al., Appellants

Supreme Court of Missouri

March 27, 1929

Rehearing Overruled June 29, 1929.

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Affirmed.

John P McCammon for appellants.

Aside from other questions very briefly noticed hereafter, there are two principal and outstanding propositions which, we suggest, determine the result. (1) The 1889 condemnation judgment was void, for want of jurisdiction, and the validity of the present proceeding falls with it. (a) Private property can be taken for public use only in the manner prescribed by law and every essential prerequisite must be strictly followed to give the court jurisdiction. The jurisdiction obtained is only a jurisdiction to take the next step as so provided, and may be lost at any time, and all the necessary facts must appear on the face of the record. Bill of Rights, sec. 21; Lewis on Em. Dom., sec. 603; Cooley, Const. Lim. (6 Ed.) 648, 649; Whitely v. Platte Co., 73 Mo. 30; Ry. Co. v. Young, 96 Mo. 39; In re Grading Bledsoe Hill, 200 Mo. 642; City v. Glasgow, 254 Mo. 262. (b) It was necessary for it to appear on the face of the record, what did not appear, that the court found that the requisite number of properly qualified signers had signed the petition and that the road petitioned for was a public necessity, and the court lost jurisdiction to proceed further, and its further proceeding is a nullity. Laws 1887, 245, 247; Ry. Co. v. Young, 96 Mo. 39; Glenn v. Co. Court, 280 Mo. 637; Fisher v. Davis, 27 Mo.App. 326. (c) It was necessary for it to appear on the face of the record -- what did not so appear -- that the court found as a fact that the commissioners appointed possessed the requisite qualifications to act as commissioners and assess damages and by such failure the court, if it had jurisdiction, lost it. Laws 1887, p. 246; In re Grading Bledsoe Hill, 200 Mo. 636; Jones v. Zink, 65 Mo.App. 413. (d) The authority of the Commissioners to act had expired long before they made report. Anderson v. Pemberton, 89 Mo. 64; Rose v. Garrett, 91 Mo. 65. (e) The county court had ignored in every particular the plain and essential prerequisites to condemn private property for the road in question, its judgment was void, and no rights were thereby acquired by the public, and the only right the public had was the right by user -- to a forty-foot road -- extending to the fence of defendants. The rights of the public based on user cannot be extended beyond the land actually used by the public. (f) Plaintiff having tried the case on the theory that the State had duly condemned for a public road the east ten feet of the east twenty feet of defendants' land and was the owner of it, is bound on appeal by that theory. Commission Co v. Richter, 286 Mo. 691. (2) The plaintiff's description of the land sought herein to be condemned is insufficient to give the court jurisdiction. Forty feet west of and along the section line was described of which only ten feet was sought to be condemned. There is nothing in the petition fixing inside the forty feet wide limits the location of that ten feet. 2 Dillon, Munic. Corp., sec. 453; Sec. 1791, R. S. 1919; 2 Nichols, Em. Dom. Secs. 394, 399; Ry. Co. v. Fowler, 113 Mo. 464. (3) The effort to agree with the owner and failure to do so is jurisdictional and must be alleged and proven. Sec. 1791, R. S. 1919; City of St. Louis v. Glasgow, 254 Mo. 262. The burden of showing the jurisdictional facts was on the plaintiff. Leslie v. City, 47 Mo. 479.

Willard Hamlin, Edgar Shook and Wilkie B. Cunningham for respondent.

(1) Appellants cannot complain because their motion to make petition more definite and certain was overruled. (a) The petition was sufficient. State ex rel. Siegel v. Grimm, 314 Mo. 242. (b) Appellants waived any error in overruling their motion by pleading over. Wolz v. Venard, 253 Mo. 84; Shaffer v. Rock Island Ry., 300 Mo. 501; Martin v. Kansas City, 224 S.W. 141. (c) Appellants waived any error by not objecting to the admission of evidence on this ground, by introducing evidence themselves and trying the case as though the petition contained a description just as definite as that sought in their motion. (d) If necessary, this court will consider the petition as if amended to conform with the proof in the court below where no injury will result to either party. 21 R. C. L. sec. 130, n. 4; Sawyer v. Wabash, 156 Mo. 468; Rock v. Keller, 312 Mo. 480; State ex inf. Simrell v. Clardy, 267 Mo. 381; Solomon v. L. & P. Co., 303 Mo. 633; Ehrlich v. Mittelberg, 299 Mo. 301; Ford v. Wabash Ry., 300 S.W. 769. (e) If a more definite description was needed, defendants supplied it under the doctrine of "express aider" by describing the particular ten feet sought to be condemned by metes and bounds. 21 R. C. L., sec. 56, n. 11, 12; Tucker v. Wadlow, 184 S.W. 70; State ex inf. Brummall v. Gromer, 252 S.W. 705; Geros v. Harries, 39 A. L. R. 1302; Preiss v. St. Louis County, 231 Mo. 332; Maysville v. Truex, 235 Mo. 619; Richards v. Johnson, 261 S.W. 53; Wolff v. Fire Ins. Co., 223 S.W. 810; Springgate v. United Rys. Co., 253 S.W. 478; Fledderman v. Ry. Co., 254 S.W. 717; Mayhew v. Mutual Life, 217 Mo.App. 439; Schebach v. McDonald, 179 Mo. 163. (2) There was no error in overruling defendants' motion to dismiss the petition for lack of jurisdiction. (a) There was no such motion as appellants' second assignment of errors would imply. (b) The motion defendants really made could not have been sustained without assuming facts not in evidence at that stage of the proceedings and not admitted by plaintiff's pleadings. (3) A sixty-foot right of way already belonged to the State under the condemnation proceedings of 1889. The court had jurisdiction over this class of proceedings and of the parties and every presumption as to the jurisdiction of the court and regularity of the proceedings should be indulged in a collateral attack, at least until the lack of jurisdiction is made to affirmatively appear. Leonard v. Sparks, 117 Mo. 114; Connors v. St. Joseph, 237 Mo. 622; Belk v. Hamilton, 130 Mo. 300; State ex rel. Brown v. Wilson, 216 Mo. 215; Snoddy v. Pettis Co., 45 Mo. 361; Ex parte Gounis, 304 Mo. 441; Bingham v. Kollman, 256 Mo. 589; Sisk v. Wilkinson, 305 Mo. 328; Holt County v. Cannon, 114 Mo. 316; Butler v. Barr, 18 Mo. 361; Scanland v. Walters, 305 Mo. 430; Cobe v. Ricketts, 111 Mo.App. 113; State ex rel. Kersey v. Simms, 286 S.W. 835; Cannady v. Beaumont, 213 S.W. 829; St. Louis v. Schuttenberg, 212 S.W. 864; Summers v. Cordell, 187 S.W. 5.

Atwood, J. All concur, except Ragland, J., not sitting.

OPINION

ATWOOD

The State Highway Commission of Missouri brought suit in the Circuit Court of Greene County against R. A. Moore and Flora L. Moore, appellants herein, and others impleaded with them as defendants, the purpose alleged being "to condemn and establish the right of way for a state highway from a point at or near the intersection of Glenstone and Division Street roads east of the city of Springfield, Missouri, through the County of Greene and through the several parcels of land hereinafter mentioned and described, to a point at or near the intersection of Glenstone and Cherry Street roads in said Greene County, Missouri." The land sought to be taken for right of way purposes and here involved is alleged, in said petition to be situated in Greene County, Missouri, and described as follows:

"Tracts or parcels of land belonging to Robert A. Moore and Flora L. Moore right of way for Federal road eighty feet wide -- that part of the Northeast quarter of the Northeast quarter and also of Southeast quarter of the Northeast quarter of Section 19, Township 29 North, Range 21 West, known also as part of Bigbee's Subdivision, lying within a tract of land eighty feet wide, forty feet thereof being on both sides of, parallel to and measured from a surveyed center line which is described as follows: Beginning at a point on the East line of and 635 feet South of the Northeast Corner of Section 19, Township 29 North, Range 21 West, thence South 8 degrees 01' East with forty feet on the West side of the said center line a distance of 146.3 feet, thence South 8 degrees 31' East a distance of 955.7 feet to a point on the East line of and 405 feet South of the Northeast corner of the Southeast quarter of the Northeast quarter of Section 19, Township 29 North, Range 21 West, at the center of Walnut Street, containing new right of way .25 acres being off the east side of Lot 5, W. T. Bigbee's Addition to Springfield, Greene County, Missouri."

In accordance with the prayer of the petition commissioners were appointed to assess damages, and in the latter part of July, 1927, their report was filed awarding the above-named defendants damages in the sum of five hundred dollars. On August 4, 1927, defendants filed motion to require plaintiff to make its petition more definite and certain, which motion was overruled. On August 6, 1927, and within ten days after the commissioners' report was filed, defendants filed exceptions thereto. On February 27, 1928, defendants filed a motion to dismiss the condemnation proceeding for want of jurisdiction, which motion was overruled. The case was thereupon tried to a jury and a verdict for four hundred dollars was returned in favor of said defendants who have appealed from the judgment rendered thereon.

Appellants insist that the trial court was without jurisdiction to entertain the condemnation suit because the land sought to be taken was insufficiently described in plaintiff's petition. Section 1791, Revised Statutes 1919, provides that the petition in a condemnation suit shall set forth "a description of the real...