Tebbs v. Platte County

• Decision Date: 03 June 1930
• Docket Number: No. 28803.,28803.
• Citation: 28 S.W.2d 656
• Parties: W.H. TEBBS ET AL., Appellants, v. PLATTE COUNTY.
• Court: Missouri Supreme Court

28 S.W.2d 656

W.H. TEBBS ET AL., Appellants, v. PLATTE COUNTY.

No. 28803.

Supreme Court of Missouri, Division One.

June 3, 1930.

Appeal from Platte Circuit Court. — Hon. Guy B. Park, Judge.

AFFIRMED.

Andrew D. Gresham and Walter J. Gresham for appellants.

(1) The court erred in sustaining the demurrer to plaintiffs' evidence and in instructing the jury to find for defendant. Plaintiffs' action is based on the constitutional right to compensation for property taken for public use without compensation, and the legal duty of the county to pay therefor. Rogers v. St. Charles, 3 Mo. App. 41; Miller v. Railway, 162 Mo. 424; Art. II, Sec. 21, Constitution of Missouri; Galbraith v. Prentice, 109 Mo. App. 498; Forsyth v. Heege, 61 Mo. App. 277; 20 C.J. 845, 1160; Sec. 10630, R.S. 1919; Thurston v. St. Joseph, 51 Mo. 510; Chapman v. Douglas Co., 107 U.S. 357, 28 L.R.A. (N.S.) 968, 975; Muhlenberg Co. v. Ray, 284 S.W. (Ky.) 1074; Harlan Co. v. Cole, 292 S.W. (Ky.) 501; Metcalf v. Lyttle, 293 S.W. (Ky.) 977. (2) The county is estopped to deny liability. Simpson v. Stoddard Co., 173 Mo. 421; Cole Co. v. Trust Co., 302 Mo. 222; Imler v. Springfield, 30 Mo. App. 669; Foncannon v. Kirksville, 88 Mo. App. 279; Windle v. Springfield, 6 S.W. (2d) 61.

J.B. Wilson, J.W. Coots, Jr., and Terrence Riley for respondent.

(1) If a road is opened and used but not authorized or ratified by court order, it was the acts of individuals and not of the county and the county is not liable. Bigelow v. Springfield, 178 Mo. App. 463; Ketchum v. Monett, 193 Mo. App. 529; Kroffe v. Springfield, 86 Mo. App. 530; Mandlin v. Trenton, 67 Mo. App. 452; Beatty v. St. Joseph, 57 Mo. App. 251; Gehling v. St. Joseph, 49 Mo. App. 430; Thompson v. Boonville, 61 Mo. 282; Werth v. Springfield, 78 Mo. 107; Hilsdorf v. St. Louis, 45 Mo. 94; Hunt v. Boonville, 65 Mo. 620; Stewart v. Trenton, 79 Mo. 603; Thrush v. Cameron, 21 Mo. App. 394; Rowland v. Gallatin, 75 Mo. 134; Jones v. Caruthersville, 186 Mo. App. 404; Windle v. Springfield, 275 S.W. 585; Windle v. Springfield, 8 S.W. (2d) 61. (2) A county only becomes bound when it orders a road opened, and then only for amount assessed by commissioners. Galbraith v. Prentice, 109 Mo. App. 498. (3) A county speaks only by its record and is liable only for the authorized acts of its officers. State ex rel. Campbell v. Heege, 37 Mo. App. 338; State ex rel. v. Seibert, 97 Mo. App. 212; Decker v. Deimer, 229 Mo. 296. (4) A county cannot be held liable in any proceedings unless the statutes so provide. Reardon v. St. Louis County, 36 Mo. 555; Mitchel v. Clinton, 99 Mo. 153; Stealey v. Kansas City, 179 Mo. 400; Duckworth v. Springfield, 194 Mo. App. 51. (5) The county court is not the agent or servant of the county. Swinelfor v. Franklin County, 282 Mo. 279; Bayless v. Gibbs, 251 Mo. 492; Sturgeon v. Hampton, 88 Mo. 213. (6) Estoppel does not apply to counties. Phillips v. Butler County, 187 Mo. 698; Heidelberg v. St. Francois County, 100 Mo. 72; Snyder v. Railroad Co., 112 Mo. 527; Wolcott v. Lawrence Co., 26 Mo. 272; Johnson v. District, 67 Mo. 319; Maupin v. County, 67 Mo. 327; Mullins v. Kansas City, 268 Mo. 444.

RAGLAND, J.

Plaintiffs are, and since March 24, 1921, have been, the owners in fee of approximately 190 acres of land in Platte County. They were, and are, non-residents of the State. In 1923, without their knowledge or consent, a road across their land was surveyed, marked out and graded — following which the public assumed to, and did, use it as a public highway. Plaintiffs bring this action against Platte County to recover the value of the land taken for the road and the damages to the remainder of the tract resulting from such taking. For a statement of the proceedings had with reference thereto in the circuit court, we adopt that of appellants (plaintiffs), as follows:

"Plaintiffs' evidence showed the filing, in 1923, of the petition by certain landowners to change a public road so as to run across plaintiffs' land; that the county court acted upon the petition by ordering the county highway engineer to survey the road and report; that there is no record that the court made a finding that notices had been posted; that the engineer reported favorably to the court on the change of road petitioned for; that the county court entered of record an order that the change be made, and appointed commissioners to assess damages; the order appointing commissioners recites that the court found that the road be established at the expense of the county; that the highway engineer in his report to the county court listed the names of the owners of plaintiffs' land as `Tibbs Bros.,' and endorsed upon his report an erroneous statement that the tenant of the land stated that `Tibbs Bros.' would give the right of way free of charge; that the name of plaintiffs is not `Tibbs Bros.;' that the road runs across plaintiffs' land a distance of 2495 feet, thirty feet wide, taking approximately two acres of the value of $200; that it made necessary the building of fences on both sides of the road, with gates, at a cost of $400; that it cuts off a small tract of twenty acres from the rest of the farm, causing damage of $1,000; that the records showed no order to open the road subsequent to the report of the commissioners; that it paid damages assessed to other owners as reported by the commissioners, but paid nothing to plaintiffs; that the county highway engineer built the road and a large concrete culvert thereon, all at the cost of and paid for by the county; that the road is now open to public use as a highway and is being maintained by the county; that plaintiffs, being non-residents of the State, knew nothing of the road until February, 1926.

"At the close of plaintiffs' evidence, defendant demurred to the evidence and requested a peremptory instruction, which the court gave, directing the jury to find for defendant, which the jury accordingly did."

Judgment was entered on the verdict for defendant, and plaintiffs appealed.

The record does not disclose the precise ground or grounds upon which the circuit court sustained the demurrer, but that it was well ruled we have no doubt. The proceedings for the establishment of a public road across appellants' land were had, or purported to be had, under and pursuant to the provisions of Sections 10625 to 10630, inclusive, Revised Statutes 1919. Under the provisions of these sections the county court and the county officers, who are required to exercise certain powers and perform certain duties, in connection with the establishment of public roads, with respect to such powers and duties, are agents of the State and not the county. Their relation to the county in that respect, and particularly that of the county court, was clearly defined by this court at an early date in Reardon v. St. Louis County, 36 Mo. 560. It is there said:

"A county is a territorial subdivision, a quasi corporation, and is invested with corporate powers for certain purposes. The statute laws of the State establish county courts, and prescribe their powers and duties, giving to them, among other things, the control and management of the county property, the power to levy taxes to defray the expenses of their respective counties, and also certain specific powers in respect to opening and repairing roads and highways.

"The powers of the county court, and what precise relation it bears to the county, we are to ascertain from the numerous acts which have been passed from time to time by the Legislature, conferring jurisdiction upon it. It is nowhere declared that the county court is the general agent or representative of the county; it is a part of the State government with specific powers, duties and functions, generally local to the county, it is true, but derived from the State and not from the county, and subject to be altered or changed at the will of the Legislature, without regard to the will of the county. It acts independently of the county in obedience to State laws. Duties imposed upon the county court by the Legislature,...