Big Hollow Road v. Bailey

Sherwood, P. J. England and others, acting under the provisions of the road law (Laws, 1887, p. 245), presented their petition for vacating a portion of the Big Hollow road in Plattin township, Jefferson county, Missouri. All the necessary steps were regularly taken, and, at the November term, 1888, of the county court, a remonstrance signed by more than twelve freeholders of the township was presented to that court resisting the vacation of said portion of the road in question. The hearing of the cause before the county court resulted in the court vacating the portion of the road sought to be vacated, and, on appeal, the St. Louis circuit court to which the cause went on change of venue heard the cause de novo, found the issues for the remonstrants, and dismissed the petition. Thereupon the petitioners filed their motion in arrest, based upon the theory that the circuit court had no jurisdiction to hear and determine the cause. This motion was denied, and, on appeal to the St. Louis court of appeals, that court was of opinion that the circuit court had jurisdiction; but inasmuch as the Kansas City court of appeals was supposed to have taken a different view of the matter in Aldridge v. Spears, 40 Mo. App. [328] 527, to that taken by the'St. Louis court of appeals in Cox v. Dake, 34 Mo. App. 80, the cause has been certified to this court. The case of Aldridge v. Spears has also been certified to this court, and is reported in 101 Mo. 400. In that case it was determined that under statutory provisions no appeal lay from an order of the county court refusing to make an order opening or changing a road. Section 10 of the act of 1887, aforesaid, provides that: “In all cases of appeals being allowed from the judgment of the county court, assessing damages, or for opening, changing or vacating any road, the circuit court shall be possessed of the cause, and shall proceed to hear and determine the same anew; but no commissioner shall be appointed by the circuit court, nor shall any appeal prior to the determination thereof in the circuit court operate as a supersedeas of the proceedings of the county court.” I. This case differs from the one just mentioned in that here the county court of Jefferson county did make an order vacating a portion'of the public road in question; and-, for an appeal in such cases, the section just quoted gives express permission, though it was hold in Aldridge’s case to deny the right of appeal by necessary implication in cases other than those specified in the section'quoted. We hold then that the order of the county court vacating a portion of the road was appealable. II. Section 29 of the act already quoted from clearly recognizes the right of remonstrants, possessing the qualifications already stated, to contest the right of the petitioners to have the road vacated. Their right to remonstrate and to contest the vacation of the road by the express terms of section 29 is only based on two conditions, first, that they be freeholders; second, that [329] they are residents of the township. These two conditions conceded, the right of the remonstrants to appeal is undeniably granted by section 10 aforesaid. If the county court had refused to vacate the road, then, under the ruling in Aldridge’s case, no appeal would lie; but this case is wholly unlike that one for the reasons stated. III. The cause then being properly appealable and appealed, the authority of the circuit court to hear and determine the same anew cannot be doubted, seeing that it is expressly conferred by section 10. The result is that the judgment of the St. Louis court •of appeals is affirmed, and this cause remanded to that court for further proceedings. All concur, except Barclay, J., absent.