In re Gardner
Missouri Court of Appeals
M'ror to the Marion Circuit Court. — Hon. Thos. H. Bacon, Judge. (1) The court erred in overruling the motion to quash and dismiss the proceeding, because the road is not a public necessity. Laws, 1887, sec. 7, p. 246 ; Leslie ®. Railroad, 2 Mo. App. 115; Leslie ®. St. Louis, 47 Mo. 474. It is not enough to justify a court in exercising the right of eminent domain, that the use is convenient, useful or even essential. x It can only be done on grounds of absolute necessity.
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M'ror to the Marion Circuit Court. — Hon. Thos. H. Bacon, Judge. (1) The court erred in overruling the motion to quash and dismiss the proceeding, because the road is not a public necessity. Laws, 1887, sec. 7, p. 246 ; Leslie ®. Railroad, 2 Mo. App. 115; Leslie ®. St. Louis, 47 Mo. 474. It is not enough to justify a court in exercising the right of eminent domain, that the use is convenient, useful or even essential. x It can only be done on grounds of absolute necessity. Leslie ®. St. Louis, supra; County Court v. Griswold, 58 Mo. 175, 193; Mills on Eminent Domain, secs. 10, 12, pp. 94-96.…
1Opinion of the CourtThompson, J.
This was a proceeding in the county court of Marion county to open a public road. An appeal was taken to the circuit court where the appellants filed a motion to quash the proceedings, which motion the court overruled. . This motion, and the ruling of the court thereon, are shown by a bill of exceptions. The court tried the cause without a jury, and rendered final judgment therein. No motion for new trial and no motion in arrest of judgment were filed. The cause is now brought to this court by a writ of error, and the error assigned is the overruling of the motion to quash the proceedings.
Alth…
2Cases cited22 opinions
- Ells v. Pacific RailroadSupreme Court of Missouri · 1873
- Kansas City, St. Joseph & Council Bluffs R. R. v. Campbell, Nelson & Co.Supreme Court of Missouri · 1876
- DeKalb County v. HixonSupreme Court of Missouri · 1869
- Chicago, Rock Island & Pacific Railway Co. v. YoungSupreme Court of Missouri · 1888
- Whitely v. Platte CountySupreme Court of Missouri · 1880
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3Cited by5 opinions
- Lingo v. BurfordSupreme Court of Missouri · 1892
- Kansas City v. SmartSupreme Court of Missouri · 1895
- Fore v. HokeMissouri Court of Appeals · 1892
- Hughes v. MermodSupreme Court of Missouri · 1894
- State ex rel. Winsor v. TaylorMissouri Court of Appeals · 1908