Lind v. Clemens

Wagner, Judge,

delivered the opinion of the court.

When this case was before this court on a previous occasion, it was decided that the appeal from the County Court to the Circuit Court did not authorize a trial in the latter court de novo, but *541 that still it was the duty of the Circuit Court to ascertain from the record whether the County Court exceeded its jurisdiction or proceeded illegally in reference to the subject-matter before it. (St. Louis v. Lind et al., 42 Mo. 348 .)

After the case Ayas remanded, the Circuit Court, upon an inspection of the record, Ayas of opinion that no error was committed in the County Court, and therefore affirmed its judgment, and the case is again here by appeal.

The proceeding Ayas had under the thirteenth section of the laAV “ about roads in St. Louis county,” approved March 10, 1849. (Sess. Acts 1849, p. 593.) The section provides that if, in the construction of any of the public roads of the county, it shall become necessary to use stone, timber, or earth belonging to individuals, and no private bargain carr be made on fair terms for the purchase of the same, it shall be laAvful for the County Court to order the marshal of the county to summon a jury of six citizens not OAvning property on the road to be improved, Avho shall assess the damages to the freehold, and the value of the material wanted for public use; and if, upon the return of the verdict, the County Court shall assume to pay the damages and the value of'the material thus to be taken, then it shall be lawful for the County Court, by its servants, agents, or contractors, to take and carry away, for the use of the public, such stone, timber, and earth as may be Avanted.

Lind contracted to do certain work on the Olive street road, and he represented in his petition to the County Court that no quarry could be opened within a reasonable distance of the Avork whence he could obtain material, except the quarry which Ayas already opened on the lands of Clemens. He also stated, that he could not get permission from Clemens for the procurement of rock out of the quarry, although it would do very little or no injury to Clemens’ property.

Upon this petition and representation, the County Court ordered the marshal to summon a jury to assess the damage, which was done. Clemens objected to the amount awarded, and moved the court to set the award aside, Ayhich motion was overruled, and this is the grievance complained of. Clemens was notified to *542 appear before the jury when the assessment was made, but the record does not show whether he was present or paid any attention to the notice.

The well-established and firmly-settled principle of law, founded in justice and reason, is that, whenever in the pursuance of any law the property of an individual is to be divested against his will, there must be a strict compliance with all the provisions of the law authorizing such a proceeding. So, if the statute only authorized proceedings in invitum after an effort had been made to agree with the owner on the compensation to be made, the fact of such effort and its failure must appear. (Reitenbaugh v. Chester Val. R.R. Co., 21 Penn. St. 100.)

The proceeding here was only authorized “when no private bargain could be made on fair terms.” There is nothing to show that any attempt was ever made to make a bargain, or that any compensation was ever offered for the materials. The owner might well have refused to give permission to part with his property, when he would have been entirely willing to have sold it for a fair remuneration.

The opinion of Lind, when he was trying to wrest and appropriate Clemens’ property, that it would do him very little or no injury, can not be regarded as of any great weight, nor can it help out the defective compliance with the law.

In my opinion, the judgment should be reversed and the cause remanded for further proceedings, etc.' The other judges concur.