Zeibold v. Foster

• Decision Date: 27 November 1893
• Citation: 24 S.W. 155,118 Mo. 349
• Parties: ZEIBOLD et al. v. FOSTER.
• Court: Missouri Supreme Court

24 S.W. 155

118 Mo. 349

ZEIBOLD et al. v. FOSTER.

Supreme Court of Missouri, Division No. 1.

November 27, 1893.

HIGHWAYS — ALTERATION — NOTICE — DESCRIPTION — DAMAGES — BOUNDARIES — TRIAL.

1. In proceedings to change a public road, the description of the proposed road in the petition and notice is sufficient if it can be readily and certainly located.

2. Though known and fixed monuments control where they conflict with the courses and distances, yet where there are two conflicting monuments, one of which corresponds with the courses and distances, that one should be taken, and the other rejected as surplusage.

3. Whether notice of presentation of a petition to change a public road was given being a matter for the finding of the county court, and the statute not requiring evidence thereof to be of any particular character or to be preserved, where the court has found that written notices were posted, it is immaterial that the affidavits of service of notices failed to state that they were written.

4. The statute does not require that the petition to change a public road shall designate the width of the proposed road, but Rev. St. § 7793, fixes the maximum and minimum width, and leaves the rest to the discretion of the county court.

5. Where a public road is changed, both the old and the new road being on the same person's land, an instruction that his damages are the value of the land actually taken, — that is, what it is worth for sale with reference to the uses to which it might be put, — together with the expense of moving and putting his fence on the new line, but that the estimate must not be based on matters purely speculative or fanciful, which may or may not happen, is proper.

6. It cannot be objected for the first time after verdict that the jury were permitted to take papers with them on retiring, where counsel knew of it at the time.

Appeal from circuit court, Moniteau county; E. L. Edwards, Judge.

Proceedings by John Zeibold and others to change a public road. Lashla Foster filed objections. From the judgment assessing his damages, Foster appeals. Affirmed.

The other facts fully appear in the following statement by MACFARLANE, J.:

This is a proceeding under the statutes to change a public road in Moreau township, Moniteau county. It was commenced in the county court by petition and notice. The desired change was entirely on the land of appellant, Foster. The county road commissioner was ordered by the county court to view, survey, and mark out the change. He reported the road practicable and of public utility, and that Foster refused to relinquish the right of way. Commissioners appointed by the county court assessed Foster's damages at $10. At the next term, Foster filed objections to the report of commissioners, and upon a trial by jury his damages were again assessed at $10, and he appealed to the circuit court, where, upon retrial, his damages were assessed by a jury at $7, and he appealed to this court. Objections were made in the county court, and again in the circuit court, to the sufficiency of the proceedings to give jurisdiction to the court to order the change. The petition recites that it is signed by 20 freeholders of the township of Moreau, Moniteau county; that they desired a change at the south end of the public road known as the "Sappington Road," on the land of L. Foster. The proposed change was described in the petition as follows: "Commencing at a point on said G. W. Sappington road 105 feet north of the southwest corner of the northeast quarter of the southwest quarter of section 24, township 45, range 16; running thence south, 46 degrees east, 92½ feet; thence 42 feet south, to the line of the quarter section aforesaid, to a point 66 feet east of the southwest corner of said quarter section; thence south to a distance about 16 feet, to the Moreau church road. This change is necessary to save the expense of building an expensive bridge, and to make the road passable." The petitioners prayed the change according to that description. A notice that the petition would be presented was executed, as appeared by affidavit, by posting "three copies of the same," one at each end of the proposed change, and one at a public place in Moreau township, at least 20 days before the first day of the term of the county court at which it would be presented. This notice described the proposed change as in the petition. Upon presentation of the petition the court made the following finding: "Now, at this day, the petition of the above-named parties for a change of road in said township coming on to be heard, it is found by the court that said petition is signed by at least 12 freeholders of said Moreau township, three of whom...