Kansas City, St. Joseph & Council Bluffs R. R. v. Campbell, Nelson & Co.

Sherwood, Judge,

delivered the opinion of the court.

The proceeding, originally instituted by the Missouri Talley Railroad Co., of which the present plaintiff is the sncces *587 soi', had for its object the appropriation of a certain strip of land, to make what is known as a “Y,” and to connect the road of the petitioner with the bridge at Kansas City, and the- road then leading to the bridge, on the north side of the Missouri river.

The subjoined plat more fully illustrates my meaning.

*588 We may remark at the outset, that there is a fatal defect observable in the record before us. It is this, that record does not show that the parties to this suit “cannot agree upon the proper compensation to be paid ” for the land sought to be condemned. (Wagn. Stat., 326, § 1.)

This is a jurisdictional fact, and without it is apparent on the record, the court whose aid is sought, whether possessing special or general jurisdiction, is powerless to take any valid step in the premises. For, when the superior courts are engaged in the exercise of special and limited statutory powers, as in the present instance, they and their records occupy the same footing, and are subject to the same rules and tests, as courts whose jurisdiction is special and limited.

This point Was so ruled in Ellis vs. Pacific R. R. ( 51 Mo., 200 .) And the rulings of this court have been uniform, wherever it has been attempted by summary proceedings to divest the owner of his property, that the record must affirmatively show that the conditions precedent to the exercise of such extraordinary powers have been fully complied with. (Cunningham vs. Pacific R. R., 61 Mo., 33 , and cases cited.)

As a matter of fact, the motion for a new trial and the one in arrest, both urged on the attention of the lower court the jurisdictional question on which we have been commenting ; but this was quite immaterial, so far as concerns our action, whether this course was pursued or not, as this objection is a fundamental one, goes to the very foundation of the whole proceeding, and may be raised at any time and by any party.

There is another error patent of record, which is also sufficient to accomplish the reversal of the judgment of condemnation. I refer to the lack of service on the infant, William Campbell. Service of summons on a minor is to be had precisely as it must on an adult. (Wagn. Stat., 1007, § 7.) The provisions of section 9 of the same article, which permit a defendant to “acknowledge, in writing, indorsed on the writ, signed by his own proper signature, the service of such writ, and waive the necessity of the service thereof by an officer,” are applicable only to adults, or those capable of acting for *589 themselves. Eov this reason it was incompetent, either for the infant to acknowledge service for himself, or for his guardian to make such acknowledgment for him. Nor is there any change effected in the ordinary manner of service of process on an infant in consequence of the statute in relation to appropriation of lands, providing, that where “the proceedings seek to affect the lands of persons under guardianship, the guardians must be made parties defendant.” The only object of the provision was, doubtless, to obviate the necessity of appointing a guardian ad litem, the legislature probably regarding the interests of the minor safer in the hands of the general guardian, conversant as such person must be with the rights and interests of the infant, than in the hands of one appointed only for the occasion.

There is yet another error in this record, which should not escape severe animadversion. I speak of the damages assessed for the condemnation of the right of way. The damages thus assessed were $10,666. Eeference has been made by defendant’s counsel to the case of St. L. & St. Jo. R. R. Co. vs. Richardson ( 45 Mo., 466 ), where it is said with respect to the conduct of commissioners, “that unless the court is clearly satisfied that they have erred in the principles upon which they have made their appraisal, there is nothing for review, and their report should not be disturbed.”

That language was never intended to apply to a case of this kind — a case conspicuous for the utter disregard displayed.by the commissioners for the important trust that devolved upon them in consequence of their appointment.

It appears that the amount of damages was fixed by each of the three commissioners putting down an amount and then dividing the sum total by three. The land taken was thus estimated at $1,000 per acre, when one of the commissioners, as he states, did not know anything of the value of the land, did not think it was very valuable, did not determine in his own mind what it was worth, and did not put any special value on it in making his estimate.

*590 The second commissioner says the land taken was in a wet place; that adjacent lands were selling at $100 per aerej and that, in his opinion, was what they were worth; but, still, from the best information he could obtain, he valued the land taken by plaintiff at $1,000 peí' acre. He erroneously assumed, as the evidence shows, that the land taken constituted a part of the Harlem town-site, and acting on this sheer assumption, he took that into consideration. The third commissioner stated, that he regarded the land along the plaintiff’s road worth from $100 to $200 per acre ; that the highest value of that land was the latter sum.

In addition to that the commissioners gave $1,600 additional damages for injury done to the other land of the defendants (chough it does not specially appear in what that injury consisted), and, in estimating the amount of land taken, there was included in the estimate the land embraced within the “Y” and also a strip of land eight hundred feet long by fifty feet wide, runningparallel with the Harm. & St. Jo. R. R., for neither of which pieces had plaintiff asked. The amount actually asked for was not quite four and a half acres ; so that, in its practical effect, the estimate of the value of the land was really $2,000 per acre, in addition to which the commissioners gave, as before stated, what might be termed a bonus of $1,600 more.

The testimony of other witnesses, who were introduced, taken as a whole, does not materially vary as to value per acre from that of the two commissioners who testified on that point.

In an ordinary case, where opinions as to value might very well be variant, we would not closely scrutinize the report of the commissioners on that score; but where, as in the present instance, the damages assessed by them are so flagrantly excessive; where there are such manifest indications on their part of an entire lack of appreciation of the duties and responsibilities of their position ; such obliviousness of the rudimentary principles of fairness and impartiality, *591 we cannot, consistently with our ideas of duty, hesitate to interfere.

. The judgment is reversed, and the cause remanded. Judge Vories absent; the other judges concur.