Whitely v. Platte Cnty.

• Decision Date: 31 October 1880
• Citation: 73 Mo. 30
• Parties: WHITELY, Appellant, v. PLATTE COUNTY.
• Court: Missouri Supreme Court

73 Mo. 30

WHITELY, Appellant,

v.PLATTE COUNTY.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Platte Circuit Court.--HON. GEO. W. DUNN, Judge.

REVERSED.

J. E. Merryman for appellant.

NORTON, J.

The controversy in this case grows out of the action of the township board of directors of Weston township, Platte county, in locating a new road over the land of plaintiff in said township. Plaintiff appealed from the action of said board to the county court of said county, in which court he filed his motion to set aside the order establishing said road, because it was made without notice to plaintiff, and because the said board had no jurisdiction to make it. The court overruled the motion, whereupon plaintiff appealed to the circuit court, and renewed his motion to set aside said order because the township board had acquired no jurisdiction to establish said road, and because the order establishing it was made without notice to him. This motion being overruled, plaintiff appeals to this court. The only question which the record presents is, whether or not the township board in the various steps taken had acquired jurisdiction. This being a statutory proceeding in invitum to appropriate to the use of the public the land of plaintiff, and being in derogation of common law and common right, “the utmost strictness is required in order to give it validity; and unless upon the face of the proceeding it affirmatively appear that every essential prerequisite of the statute conferring the authority has been fully complied with, every step, from inception to termination, is coram non judice.” Ells v. Pacific R. R. Co., 51 Mo. 200. The township board could only acquire jurisdiction to lay out a new road and assess damages as is provided in sections 24, 25 and 27 of the act of 1873, page 110, that being the act under which the proceeding was had. These sections are as follows: 24. “The township board of directors may lay out or discontinue or alter any road, or lay out any new road, when petitioned for by any number of legal voters, who shall be householders of said township, not less than twelve, residing within three miles of the road so to be altered, discontinued or laid out; said petition shall set forth in writing a description of the road and what part is to be altered or discontinued; and if for a new road, the names of owners of land, if known, over which the road is to pass, the point at which it is to commence, its general course, and the place at or...