Seafield v. Bohne

VALLIANT, J.- — This is a suit in equity to enjoin tbe defendants, who are the judges of the county court of Dade county and the road commissioner of Lockwood township of that county, from opening a public road through plaintiff’s, land. Tbe material statements in tbe petition are to tbe effect: Tbat tbe county corn’t made an order to open a public road through plaintiff’s land and tbe defendant road commissioner is proceeding to- execute the order. That the court was without- jurisdiction and tbe order void for several reasons : first, tbe notice- required by law of tbe intended application for tbe opening was not given; second, tbe court failed — 542 — to assess the probable damages to plaintiff, refusing to consider the disadvantages to him, but assessed against him benefits that were common to the public; third, the court did not find the fact that the road would be of such public necessity as to justify its being opened at the expense of the •county; fourth,- the road commissioner appointed to view, survey and mark out the road made his report, but failed to estimate the cost of bridges, culverts and grading, and failed to report the amount of damages claimed by plaintiff, and failed to procure the right of way from two other owners of land through which the road was proposed; fifth, the court appointed commissioners to assess plaintiff’s damages, but had no jurisdiction to do so for the reasons above given, and the commissioners assessed plaintiff’s damages at $50, but the same had never been paid or tendered to plaintiff or paid into court for him; sixth, that at the date of the order for ■opening the road there was a crop growing on plaintiff’s land and no time was given him to harvest the same, and the crop at the time the suit was filed was. still growing; seventh, Lockwood township was organized as a municipal township at the time of these proceedings, and had a board of road commissioners who alone had jurisdiction to open .the road. The answer joined issue as to the facts on which the jurisdiction of the county court was challenged. It is conceded by the plaintiff that the petition for the opening of the road, which was the foundation of the proceeding in the county court, was sufficient and in conformity with the statute, and that it was duly filed. This petition the plaintiff introduced in evidence, and then offered the notice that was given, which was objected to by defendant, and the court ruled that it would be admitted subject to the objection. Plaintiff then introduced the order of the county -court of date November 16, 1896, which recited the filing of the petition and the notice thereof, which was in conformity to laAv. The order concludes as follows: — 543 — “There being no remonstrance presented, the court heard all the testimony presented, and the court after hearing the testimony are of the opinion from the evidence, that said pro•posed road is of public necessity and practicability, and the probable damages to landowners through which said proposed road shall run is nothing, the advantages and disadvantages to said owners being equal, and the expense of locating said road and opening the same, grading and bridging, is to be paid by the petitioners; and the court is of the opinion from the evidence that the facts justify the location of said public road at the expehse of the petitioners, and there being no probable damages found by the court, and none required to be paid by the petitioners, it is therefore ordered by the court that the county road commissioner view, survey and mark out such road at the expense of the said petitioners according to law, and report his proceedings at the next regular term of said court.” The next order of the county court was at the February term, 1897: “Now at this day comes J. G. Hedgecoek, county surveyor and ex-officio road and bridge commissioner for Dade county, and makes report of his survey on the public road petitioned for by J. A. Higgins et al. Said surveyor reports that all the rights of way have been secured except that of C. A. Seafield, which report is received by the court, and it appearing from the report that C. A. Seafield has not given the right of way, it is therefore ordered by the court that Ewing Morris, Sam MclVIillin and Bob West be and they are hereby appointed commissioners to hear complaints and assess damages that the said C. A. Seafield may sustain by reason of the establishing of said road over or through his lands. And it is further ordered that commissioners make report thereof at the next regular term of this court.” Then followed in evidence the report of the commissioner, to which was attached a duly certified order of the county court, as follows: “In the matter, of the petition for — 544 — a public road. And now the above causo coming on to be beard and....................road commissioner, having filed herein his report, and it appearing from said report that O. A. Seafield, through whose lands the proposed new road runs, has failed or refused to relinquish the right of way for the same; it is therefore ordered by the court that Ewing-Morris, Sam McMillen and Bob West, three disinterested freeholders of the county, be and they are hereby appointed to-act as commissioners to view the premises, hear complaints and assess the damages which the said..........may severally sustain by reason of the location of said new road, and make due report of their proceedings'herein according to-law.” The report was in due form and to the effect that the commissioners first notified all the parties in interest except C. A. Seafield who could not be found on his premises and proceeded to view the premises and hear all the testimony offered and assessed the damages of Seafield at $50. The-report was returned into court April 3, 1891. At. the May term the' final order in the matter was made as follows: “In the- matter of the public road petitioned for by J.. A. Higgins, et al.: Now at this day, the sixth of May,. Í89Y, it being the fourth day of term of this court, and the-commissioners’ report in the matter of the assessment of damages having been filed on the first day of the term of this-court allowing C. A. Seafield the sum of fifty dollars for damages to- his said tract of land over which said road ran and there being no written exceptions filed by said Seafield, or any other interested parties, to said report of commissioners assessing damages, and this being the fourth day of the-term, said report is taken up by the court, examined, accepted and approved and the court further finds that said damages-have been paid by the petitioners. It is therefore ordered by the court that said road be established and opened as-prayed for in the petition, and that the same be opened — 545 — thirty feet wide, and that the land so condemned and relinquished shall be forever considered and adjudged to be a public highway and until changed or annulled by law, and it is further ordered and adjudged that the owners of the land along said road have thirty days from the date of this order in which to give possession thereof to the road overseer of the district, and the county clerk shall record the reports of the road commissioner and commissioners to assess damages.” Plaintiff then offered evidence to show that there was at the time a crop growing on the land. Defendant objected and the court ruled that the testimony would be heard subject to the objection. The testimony was to the effect that in May, 18 9 Y, there was a crop of timothy growing on the land which was harvested in August of that year. Plaintiff then offered testimony tending to show that he had never been paid nor tendered pay for his damages. The testimony was objected to by defendant and the court ruled that it would be received subject to the objection. The defendants introduced the report of the county commissioner of roads of his proceeding, under the order of November 16, 1896, which was to the effect that he had viewed the route and seen the parties and that all- the owners of the land to be taken, except C. A. Seafield, to-wit, J. A. Higgins, J. C. Spain and C. Ladd, had given the right of way, but that Seafield had refused and claimed damages, the amount of damages “not knownthat he had estimated the cost of the work -required to be: “bridges $125, to be built by the parties; culverts to be done by the petitioners; and grading $-.” A survey and plat of the proposed road was made a part of the report. Defendant then offered evidence tending to show, that one of the petitioners, Higgins, after the report of the commissioners assessing plaintiff’s damages had been returned, came into the county clerk’s-office and offered to deposit $50 — 546 — to pay the damages, the clerk referred him to one of the judges of the county court, the court not being then in session, the judge consulted the clerk, who advised that it be paid to the county treasurer, who took it on condition to be paid to O. A. Seafield on order of the clerk. To that testimony plaintiff objected and the court received it subject to the objection. Plaintiff then offered evidence to show that in 1891 Lockwood township had duly elected to come under township organization and had done so. The court entered a final decree enjoining the defendants from taking the plaintiff’s land for the public road as threatened. From which judgment the defendants appeal. I. It will be noticed that during the progress of the trial evidence was offered 1» which objections were -interposed and the court made no ruling but heard the evidence, “subject to the objection.” That is a very unsatisfactory course. In this case the abstract does not show that the court ruled on these reserved questions at all, so we do not know whether the evidence was finally weighed or rejected. But even if the rulings are announced before or at the time of announcing the findings, the practice is still very unsatisfactory ; we never know in such case what influence the evidence may have had while it was retained, even though it was in the end adjudged to be incompetent. A party whose objection is thus held in suspense does not know whether he is to introduce evidence on his part tq combat that so offered or to trust to the final rejection of the evidence of his adversary. It is bad practice and would be reversible error if the point were properly preserved by exception. II. The county court is the only tribunal which, under, our law, has original jurisdiction of a proceeding to open a public road; from its judgment an appeal lies to- the circuit court where the trial is de novo (sec. 9419, R. S. 1899), and thence to the Supreme Court. There is no doubt but — 547 — that the county court had jurisdiction of the proceeding now under review; the filing of the petition and the giving of the notice put the court in full rightful possession of the case and' authority to proceed. It had jurisdiction to enter final judgment in the case either dismissing the proceeding or sustaining the petition. In order to render its judgment valid the court must proceed in the manner pointed out by the statute. But not every error the court may commit in the course of the procedure will render its judgment void or subject to a collateral attach. There may be errors that can be corrected only on appeal or certiorari and if in such case there be no appeal or certiorari prosecuted, the judgment1 must stand unimpeached. It is only when the county court acquires no jurisdiction of the case in the first instance, or when after having acquired jurisdiction' it goes beyond its limits, that its action is to be> treated as a nullity. The distinction must be preserved in this as in other eases between the committing of an error by the court and going beyond the boundaries of its jurisdiction. And the distinction must also be observed between a mere error of t judgment in the court and a jurisdictional fact existing outside of the court’s procedure. Eor example, in some eases it is essential to the exercise of the right of eminent domain that ah attempt first be made to agree with the owner of the land, upon a price to be paid him for it. The failure to do that will render the whole condemnation proceedings void and liable' to a collateral attack. [Leslie v. St Louis, 47 Mo. 477; Railroad v. Young, 96 Mo. 39.] But that is a fact existr ing outside of the court’s procedure and whilst it must appear on the face of the record, yet it is as a fact independent of the court’s rulings, and is not to be classed with a mere error committed by the court in the course of its proceedings. The law is as the learned counsel for respondent insists, that, the taking of private property for public use is the exercise of a power that is limited to be used in a particular — 548 — manner and all the requirements of the law must be satisfied before the property can be taken. That is as true of proceedings in the circuit court as of those in the county court, yet it is not every error that the circuit court may commit in a condemnation suit that will render its judgment subject to a collateral attack. Now, what does the evidence in this ease show that the-county court has done to- render its .proceedings void? Section 9416, Revised Statutes 189i9, directs that upon hearing the evidence “in regard to- the public necessity, practicability and probable damages,” etc., if the court “be of the opinion that the facts in the case justify the location ■ or change of the road at the expense of the county, they shall make an order of record requiring the county road commissioner to view, survey and mark out such road, or otherwise such proceeding shall be dismissed.” Respondent interprets this to mean that unless the county court causes to- be entered upon its record that the facts justify the location of the road at the expense of the county, the court has reached the end of its jurisdiction and must dismiss the case. The statute continues, however, with a proviso that if the petitioners pay into the county treasury for the_ use of the landowners, the probable amount of the damages, which shall be fixed at the time by the court, then the order to the road commissioners shall issue. Thus the statute contemplates that the order may, be based on either one of two conditions, namely: first, that the damages are to be paid by the county, in which event the court must first be satisfied that the facts justify tire opening of the road at the expense of the county, or, second, that the damages are to be paid by the petitioners, in which event the court is to name the probable amount and the petitioners are to pay it to the treasurer for the use of the landowners. The order of the court in this instance indicates that it was going on the theory that the petitioners were to pay — 549 — the damages, and that the court was satisfied from the evidence that, taking into consideration the advantages and the •disadvantages, the damages would amount to nothing and that therefore the petitioners were required to pay nothing into the treasury, and thereupon made the order to the road commissioner to view, survey and mart out the road at the expense of the petitioners and report his proceedings to the next term of the court. That order was not a condemnation of the plaintiff's land, it was only preliminary to other steps to' be taken that might or might not, as the court would in due time decide, result in a final judgment of condemnation, but in all of which the plaintiff would be entitled.to be heard. The court in all this was acting in accordance with the requirements ■of the statute as it construed the statute to mean. Let it be conceded that its construction of the statute was wrongs that it had no right to condemn the plaintiff’s land for the public use otherwise than at the expense of the county; that, in estimating the probable damages that plaintiff would sustain the court improperly set off against his damages advantages not peculiar to plaintiff but such as were shared .also by the public; let all this be conceded (concerning which however we express no opinion), still it is only an error in judgment on the subject of which the court had full jurisdiction. The statute, section 9416, also requires.the road commissioners to whom the order is given to procure relinquishments of the right of way from those who will give it and .see that the same are filed with the clerk and report the names of those who will not give the right of way and the .amount of damages claimed by each and estimate the cost •of bridges, culverts and grading and make a survey and plat of the proposed road and return it all to the court on or before the second day of the next term. Then the statute proceeds: “And if it appears from said report that the — 550 — right of way bas been secured and filed as aforesaid, or that the damages claimed does not exceed the amount offered by the court, or deposited by the petitioners as aforesaid, the court shall order the road established or changed as the case may be.” The proposed road was to run through lands of four persons, three of whom were petitioners for the road and relinquished the right of way; the fourth was the plaintiff who declined to relinquish. The report of the road commissioner showed that the three relinquishments had been obtained and -filed, that the plaintiff claimed damages but the amount was not known, an estimate of the cost of the bridges was given but that of the culverts and grading was not given, but it was stated that the cost of the bridges and culverts was to be paid by the petitioners. Upon the coming in of this report the court appointed three commissioners to assess the plaintiff’s damages, who assessed the damages at $50 and made' their report in due form. The point is made- in the brief of respondent that the order of court does not show that the three commissioners were disinterested freeholder's not related to- either of the parties. The plaintiff introduced in evidence what purported to be two- orders of the court, one read from the record and one attached to the report of tire commissioners and duly certified by the clerk; in the one no mention is' made of the qualification of the commissioners, in the other they are described as “three disinterested freeholders of the county.” But there was no- such issue as that tendered in the petition, and the question was not before the trial court. The statute provides (sec. 9417) that any party interested may file exceptions to- the report of the commissioners, whereupon the court is required to cause a jury to come to make the assessment. No exceptions were filed to this report and after the time for filing the same had expired the court took up the case and made the final order, reciting that the dam — 551 — ages bad been paid by the petitioners. The plaintiff insists that the failure of the road commissioner to estimate the cost of the culverts and grading was the failure of a jurisdictional fact without which the court could go. no further. His argument on this point comes bach to his original proposition that the county court could not lawfully decree that the road be opened until it found as a fact and so entered it on the record that the proposed road was of sufficient public necessity to justify its being opened at the expense of the county. The county court did find that it was a public necessity and practicable, but they did not. say that it was of sufficient necessity to' justify its being opened at the expense of the county, but aa the petitioners offered to pay the expense, the order was that the road be opened and established at their expense. The order recites that the damages assessed were paid by the petitioners. If the payment to 'the plaintiff is a jurisdictional, fact, as is insisted, the recital of the fact in the order of the court is conclusive. [Lingo v. Buford, 112 Mo. 149.] This is one of the points, however, on which the court heard parol evidence “subject to-the objection.” The evidence on that point, whether admissible o-r not, shows that if the money was not paid to plaintiff it was only because he would not apply to the county treasurer for it; it is there for him. There is much force in the argument of learned counsel for plaintiff that a county court ought not to be allowed to take private property under the guise of taking it for public use, when in fact it is only for the convenience of private persons who are willing to pay for it. Such an act would be an abuse of power and would violate a constitutional property right. -But when private property rights are threatened it is the duty of the owner to avail himself of the process of law for his protection, and if he stands by and allows a court in the exercise of its rightful jurisdiction' to decide questions of — 552 — law or of fact contrary to the correct interpretation of the one or to the weight of the evidence as to the other, and neglects the means at hand to correct the error he can not afterwards treat the whole proceedings of the court as a nullity. These views are not in conflict with the decisions of this court relied on by the learned counsel for respondent. Anderson v. Pemberton, 89 Mo. 61, was an appeal from a judgment in proceedings begun in the county court. That is the regular course to correct such errors. Leslie v. St. Louis, supra, was a collateral assault by injunction on the validity of the judgment, but the case, as above pointed out, was founded on the fact that no 'attempt had been made to obtain the consent of the owner of the land sought to be condemned. Whitely v. Platte County, 73 Mo. 30, was an appeal from a judgment in a proceeding that originated in the county court. McPike v. West, 71 Mo. 199, only holds that in a case in which the petition for an injunction to- restrain road overseers from trespassing on the plaintiff’s premises states otherwise a good cause of action, it is not necessary to state that the defendants are insolvent. The views expressed in this opinion are in harmony with the former rulings of this court on this subject. [Sutherland v. Holmes, 78 Mo. 399; Zeibold v. Foster, 118 Mo. 349; Baubie v. Ossman, 142 Mo. 499.] The fact that Lockwood township had adopted township organization and had a board of road commissioners, did not affect the jurisdiction of the county court to- establish a new road.' [Sec. 9512, R. S. 1899.] The fact that there was a crop of timothy growing on the land in May, 1897, but which was harvested in August of that year, should have had no influence in decreeing a perpetual injunction in November following. Our conclusion is that if the county court made any mistake in its judgment touching any of the matters in issue in — 553 — tbe proceeding to- open the road in question, it was an error of judgment which could have been reviewed and corrected in the manner provided by law for relief against such errors, but that it did not render the judgment void as one the court had no jurisdiction to render, nor subject it to collateral attack. The judgment is therefore reversed and the cause remanded to- the circuit court with directions to enter judgment for the defendants, dismissing the plaintiff’s bill. All concur.