Wilhite v. Wolf

• Decision Date: 10 February 1904
• Citation: 179 Mo. 472,78 S.W. 793
• Parties: WILHITE et al. v. WOLF et al.
• Court: Missouri Supreme Court

78 S.W. 793

179 Mo. 472

WILHITE et al. v. WOLF et al.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

WIDENING HIGHWAY—PROCEEDINGS—JURISDICTION —PETITION—REPORT OF COMMISSIONERS.

1. A petition to a county court stated that the undersigned freeholders, "three of whom reside within the immediate neighborhood of the following described proposed widening of public road, pray that said public road be widened from its present width," etc. Following the description it stated "that said public road has been an established highway for more than twenty years," and prayed "for the widening of said road," etc., and that "a survey of such proposed widening" might be ordered. Held to definitely disclose a purpose to widen an existing road.

2. A statement in the report of commissioners in proceedings to widen a road that a landowner asked a specified sum as damages sufficiently showed that he had refused to relinquish his land.

3. The jurisdiction of a county court to widen a road depends on a petition therefor, and notice of its presentation, as provided by Rev. St. 1899, §§ 9414, 9415, and it cannot be affected by any subsequent irregularity in the proceedings.

Appeal from Circuit Court, Boone County; Jno. A. Hockaday, Judge.

Proceedings on petition of J. L. Wilhite and others to widen a road. From a judgment of the circuit court affirming a judgment of the county court as to an assessment of damages, L. S. Wolf and others, remonstrators, appeal. Affirmed.

W. H. Truitt, Jr., and N. T. Gentry, for appellants. Webster Gordon, for respondents.

ROBINSON, J.

This is a proceeding under the statutes, begun in the county court of Boone county by petition and notice, to have widened an old road of that county to the uniform width of 40 feet, a part of said road up to that time being 35 feet wide, and the remaining portion thereof being only 25 feet wide. The proposed change in the road sought by the petition resulted in the taking of about 1½ acres of the appellant's land. In due course the commissioners appointed by the court to assess damages to the landowners who refused to give the right of way for the purpose of widening said road made their report, and the appellant, among others, filed objections thereto, and upon a trial by a jury in the county court his damages for the land taken was assessed the same as by the commissioners at $16.33. Thereupon the court ordered the road opened and widened as prayed for in the petition, and the appellant here alone took an appeal to the circuit court of Boone county, where, upon a new trial therein, his damages were assessed by a jury in that court at $18.33, and the judgment of the county court in all things else was by the circuit court approved and affirmed. From the judgment of the circuit court, the case has been brought to this court on appellant's appeal.

Appellant's contention here is that the proceeding before the county court was insufficient to give that court jurisdiction to act in the premises to order the change in the road sought, and the particulars in which he claims that want of authority in the county court are: First, that the petition filed with the court failed to disclose definitely whether the purpose of the petitioners was to have opened up a new road, or to have changed the width of an old existing road; and, second, that in the road commissioners' report to the county court it was not stated that the appellant herein had refused to relinquish the right of way sought for said purposes, for so much of the land to be taken as was owned by him, and until this fact was set out and shown in the road commissioners' report, the county court had no authority to proceed further in the premises.

Appellant's first contention is utterly without support in the facts of the case, and why it has been suggested, in the face of the plain language of the petition filed with the county court, we are unable to understand. The petition reads, "To the Honorable, the County Court of Boone County, Missouri: We, the undersigned twelve freeholders of the townships hereinafter named, three of whom reside within the immediate neighborhood of the following described proposed widening of public road, pray that said public road be widened from its present width, which is from twenty-five to thirty-five feet in width, to a width of forty feet, having its points of beginning and termination, course and intermediate points as follows, to wit. [Here follows a description of the road.]" Following...