Missouri Pacific Railway Co. v. Carter

Black, J. This proceeding was commenced in the Cole circuit court to condemn the property of the defendants for a sidetrack. On the return of service of notice, three commissioners were appointed to assess damages, who made their reports. The defendant, Heinen, filed separate exceptions to the report, appearing for no other purpose. The other defendants, except Carter, as to whom the proceedings were dismissed, also filed exceptions. The exceptions were sustained, and the court being of the opinion that the petition did not state facts sufficient to authorize the appointment of commissioners, dismissed the proceedings. 1. The land lies in Cole county, and the proceedings could not be carried on in any other county, but inasmuch as Heinen did not reside in that county, or in that judicial circuit, under the authority of Ry. Co. v. Kellogg et al., 54 Mo. 334, he should not have been joined in the same petition. But that did not justify the court in dismissing the whole cause. The misjoinder could have no further effect than to call for a dismissal as to him. 2. Three of the defendants were minors. If these defendants had guardians, then such guardians should have been made defendants according to the plain terms of section 892, Revised Statutes. If they were not under guardianship, then, when served with process, guardians for the purpose of the suit, should have been appointed. While the act with respect to the condemnation of lands, makes no special provision for thé appointment of guardians for the purpose of the suit, still the1 practice act does, and it would be against all reason to permit these proceedings to go on to a condemnation of the minors’ property without a guardian to look to their interest. [451] 3. Section 894, Eevised Statutes, requires that the report of the commissioners shall contain a specific description of the property for which such damages are assessed. The object of this requirement is obvious. The report is to be recorded, and becomes a muniment of title, and it ought to be made with care. The report, even as amended, is in this respect deficient. It must give a description of the property condemned. 4. The evidence shows quite satisfactorily that the company and Schoenen could not and did not come to any agreement with respect to the compensation to be paid, and that an effort so to do was duly made. No such question as this is made by the exceptions with regard to any of the other defendants, and the petition is sufficient in that respect. It clearly asserts that no agreement could be made as to compensation, though an effort so to do had been made. This statement must be taken as true until controverted. H. & St. Jo. Ry. Co. v. Muder, 49 Mo. 165. It follows from what has been said that the report of the commissioners was properly set aside, but the court erred in dismissing the entire proceedings, because of which the final judgment in that respect is reversed and the cause remanded for further disposition in accordance herewith. The other judges concur.