author: VALLIANT, P. J.

text:
    TIMOTHY FITZMAURICE v. JOHN TURNEY et al.; JOHN TURNEY, Appellant.
    Division One,
    November 25, 1908.
    1. PRIVATE ROAD: Way of Necessity: Reserved in Deed: Pleading. A petition for a private roadway, charging it to be a road of necessity, does not fail to state a cause of action for that it states that a private roadway was reserved in the deed of 'one of the defendants for plaintiff’s and the defendants’ use along a certain forty acres, if that reservation does not begin at plaintiff’s land and ends before it reaches the lands of the complaining defendant.
    2. -: -: Defect in Petition: Shown by Evidence. A defect in the petition contended to be fatal to the jurisdiction of thé court, cannot be predicated upon what the evidence shows.
    3. -: Notice: On Railroad Company: Publication. Under the statute requiring that notice be given of the presentation of a petition for a private road and that if the owner of the land does not reside in the county the notice shall be given by publication, the notice to a foreign corporation which has a railroad running through the county, and a depot place of business, and an agent in charge thereof, need not be given by publication, but may be served by the sheriff on the agent. The railroad company in such case is a resident of the county.
    4. -: Former Suit: No Evidence. The filing of a motion to dismiss the proceeding for a private road, on the ’ground that a like suit had previously been brought and determined, does not prove that such suit was brought or determined. Such motion does not prove itself; and even if its allegations are proved in the county court, they must be proved again in the circuit court. They can be proved only by the records of such proceedings, and if those were not offered in evidence in the circuit court, or if offered are not preserved in the abstract, the motion cannot.on appeal be sustained.
    5. -: Payment of Damages. ■ Where the judgment of the county court establishing the private road also contains an order directing petitioner to pay the awards of damages into the county treasury for the respective defendants, it complies with the statute, and is not to be set aside on appeal to the circuit court on the ground that the damages assessed were not paid before the judgment was rendered. That part of it establishing the road could not be enforced until payment was made.

      6. -: Judgment: Not Describing Land. Where the petition described the road, and the commissioners in their report described it as the petition did, and the decree of the court so recites, and “ordered and adjudged that the said way be and the same is hereby established according to the report of the commissioners in this cause, to-wit,” the clerk ought to have copied the description of the road into the judgment, but the judgment is not void, because it can be corrected by mmc pro tuno entries.
    7. -: Appeal by One Defendant. Because'some of the defendants did not appeal, one defendant cannot nullify the whole proceedings establishing a private road by taking an appeal, whether the damages to the other defendants were or were not paid.
    8. -: Of Necessity: Question of Fact. Whether or not the proposed private road was one of necessity is a question of fact, and where there is evidence pro and con and the trial court sitting as a jury found that it was one of necessity the appellate court will not interfere with that finding.
    9. EVIDENCE: Contents of Deed. The contents of a deed not shown to be lost or out of reach of the party, cannot be proven by oral evidence.
    Appeal from Holt Circuit Court. — Eon. Wm. G. Ellison, Judge.
    Affirmed.

      T. G. Dungan and John W. Stokes for appellant.
    (1) The petitioner’s application for the private way is insufficient and does not contain a statement of facts authorizing the court to exercise jurisdiction. It shows upon its face that the object of petitioner was to increase and enhance the value of the petitioner’s lands; that said way was not a private way of necessity, as petitioner already had a private way reserved for himself by deed, to himself and other persons, children of Patrick Eitzmaurice, and their grantees and assigns forever. A way of strict necessity must not only be alleged, but it must be proven. Colville v. Judy, 73 Mo. 621; Cox v. Tipton, 18 Mo. App. 450; Barr v. Flynn, 20 Mo. App. 383. It also appears- from the statements and admission that a part of defendant Turney’s land formerly belonged to Patrick Fitzmáurice, and that he sold same to said Turney, reserving a right of way across it to this same public road, but that the deed misdescribed the location of the said reserved roadway across same, so that it appears petitioner has a reserved right of way over the same forty acres of Turney mentioned in his petition. Cox v. Tipton, supra. These proceedings, m invitum, against common law and common right, have always been strictly construed. Ells v. Railroad, 51 Mo. 200‘; Jefferson Co. v. Cowan, 54 Mo. 234; Railroad v. Campbell, 62 Mo-. 585 ; Coberly v. Butler, 63 Mo. 556. The way sought is not a public way but is a private one of convenience, but not a way of strict necessity, at all, as shown by the application as well as by the record and the proof in the case. (2) The private road sought was over the lands of three separate and different landowners, Requiring proper notice to each and all of such landowners, and until all were legally and properly notified, neither the county court, nor the circuit court on appeal, could render any judgment establishing such road or even appoint commissioners to assess damages. Humes v. Railroad, 82 Mo. 226; Hall v. Pettit (Mich.), 50 N. W. 117. The railroad company, being a foreign corporation and not a resident of Holt county, could be notified and brought into court by publication as provided in section 9460, Revised Statutes 1899', and any steps taken or judgment rendered were coram non judice and void. Hall v. Pettit, supra; Dick v. Tennison, 27 Mo. 373; Railroad v. Toung, 96 Mo. 42. The law empowering tribunals to establish private ways of necessity is strictissimi juris. Everything required to be done must be done. Colville v. Judy, supra; Morris v. Sallie (Ky.), 19 S. W. 527. (3) The court had no jurisdiction to render any judgment whatever against any of the defendants unless and until they were all duly notified, the damages of each and all ascertained and assessed, and the full amount thereof paid into the county treasury for each and all of them. This is a proceeding in entirety, if void as to one it is void as to all. Colville v. Judy, 73 Mo. 651; Anderson v. Pemberton, 89 Mo. 61. (4) The judgment was erroneous in that it did not specify and describe the private right of way sought to be established, either specifically or by reference to the petition, commissioners’ report or other proceedings of record.

      G. W. Murphy and G. F. Booher for respondent.
    • (1) The Chicago, Burlington & Quincy Railroad Company make no objection and have accepted their damages. This appellant cannot be heard to make such an objection in behalf of the railroad company when the company does not object. (2) For the purpose of bringing action, the residence of a railroad corporation is in any county through which its lines of road passes, and in which it has an agent upon whom process can be served. Railroad v. Nelson, 193 Mo. 297. A railroad which runs through a couuty and has been sued therein by service of process on its local agent is a resident of such county within the meaning of the law. Crustinger v. Railroad, 82 Mo. 64; Young v. Niles & Scott Co., 122 Mo. App. 399. (3) The report of the commissioners is not a judgment and does not limit the petitioner’s right to dismiss, and to bring his suit anew. It is only when the application has been contested and the commissioners have reported and their report has been confirmed and it is adjudged that the petitioner has complied with the statutory requirements that the judgment is final, and likewise where the court has confirmed the commissioners’ report, the judgment is final. 1 Black on Judgments, art. 40; Gibson v. Railroad, 40 Mo. App. 146; Gray v. Railroad, 81 Mo. 126; State ex rel. v. Fort, 180 Mo. 97. But in tbe case of a private road under the statute new commissioners can only be appointed in case the proceedings are irregular (sec. 9463), and in the nature of- the case this matter could not well be raised by the petitioner; and would not be raised by the defendants when the damages were excessive, as in the case of John Turney. The only persons who can' appeal in any way or object to the report of the commissioners are those through whose land the road passes. Sec. 9464. Therefore, no appeal lies in favor of petitioner, and in case of erroneous assessment his only remedy is in dismissing his proceeding. Otherwise he is without relief of any kind. (4) Petitioner was entitled to a statutory private road, if he was inclosed and no public road lead through or touched his land. That he might have had a partial way by private grant or easement, is not sufficient, especially when this did not give a practicable roadway, but only lead to' an impassable stream over which it became necessary to construct a large bridge, and when there was no provision made for building or keeping up the bridge. The roadway spoken of by appellant was not such a one as the law contemplates. (5) Where the viewers of a private road were required by statute to report whether the same was “necessary,” their report that there was “occasion” for the establishment of the road was sufficient. In re Polpson, 16 Pa. (4 Harris) 15. A private way laid out under the statute should be pleaded as a highway. A way laid out by selectmen for the accommodation of an individual, although subject to gates and bars, is still a public way. Metcalf v. Binghen, 3 N. H. 459; Proctor v. Anderson, 42 N. H. 348; Brown v. Brown, 50 N. H. 538. (6) Where a proceeding to acquire a “cart way” alleges that the plaintiff has no other way out, evidence that the way prayed for is shorter than others proposed is admissible to show the demand is reasonable. Warlick v. Lawrence, 10 S. E. 474. (7) A person has a right to have a private road established over the lands of his neighbor, though he may have access to the highway over his own lands, if snch route be especially difficult or burdensome. Mayo v. Thigpen, 11 S. E. 1052; Railroad v. Coal & Min. Co., 161 Mo. 317; Reynolds v. Reynolds, 15 Conn. 83.
   VALLIANT, P. J.

This suit was begun in the county court of Holt county to establish a private road across certain lands in that county belonging respectively to the three defendants John Turney, John Fitzmaurice and the Chicago, Burlington and Quincy Railroad Company. The cause was carried by appeal to the circuit court of that county, where final judgment was rendered in favor of the petitioner and against the three defendants, from which judgment one of the defendants, John Turney, alone has appealed. There is no question raised as to the amount of the damages awarded, but the judgment establishing the private road is assailed on several grounds.

Section 9460, Revised Statutes 1899, Mo. Ann. Stat. p. 4345, provides that a petitioner in such case must at least ten days before the petition is presented to the county court cause a copy of the. petition to be served on the defendants and a notice of the day on which the petition is to be presented to the county court. The record shows that the petitioner did cause a copy of the petition and notice that it would be presented to the county court on December 6, 1901, to be served on each of the defendants John Turney and John Fitzmaurice September 26, 1904, and on November 26, 1904, on Vine Hovey, the agent and officer of the O. B. & Q. R R. Co. in charge of its depot and place of business in Forest City in Holt county, the president or other officer not found in that county, the railroad company being a corporation organized under the laws of another State and doing business in this State.

The petition was presented to the county court December 6, 1904, being a day of the November term of that court. It stated that the plaintiff was the owner of two hundred and thirteen and two-thirds acres of land, describing it, in Holt county; that no public road passed through or touched it and that there was no established roadway connecting it with any public road, which fact greatly depreciated its value and impaired its usefulness; that in order to render the land of value and use, for farming or other purposes, it was necessary to establish the private road asked for in the petition; that the road sought to be established was a private way of necessity and would connect the petitioner’s land with a certain public road in the county at a convenient point; then the petition sets out by metes and bounds the proposed road twenty feet wide in a straight line across the land of defendant John Fitzmaurice, across the railroad right of way and across the land of defendant John Turney, the appellant. The petition also states “that there is a strip one rod wide across the north side of the said east half of the aforementioned tract belonging to John Fitzmaurice which has been reserved by the grantors of said lands (Patrick Fitzmaurice and wife) to John Fitzmaurice, which reservation is for roadway for use of this petitioner and others.” The prayer of the petitioner was for the appointment of three disinterested commissioners “to view the premises and mark out a roadway as herein prayed as a private way of necessity, assessing, as the law provides, to the owners of the land through which the said proposed road may run and in duty bound,” etc.

On the presentation of the petition to the county court, December 6th, 1904, defendants John Fitzmaurico and John Turney appeared by counsel and filed a motion to dismiss the petition for six reasons specified, viz.: 1st, The court had no jurisdiction of the matter; 2nd, The petition was defective and conferred no jurisdiction; 3rd, The notice served on the respective landowners was not as required by law; 4th, The railroad company was a foreign corporation, a nonresident, and could he served only by four weeks’ publication ; 5th, That at the preceding August term of the court the plaintiff had presented a similar petition for the same purpose, in pursuance of which commissioners had been appointed who viewed the premises and filed their report to the November term, assessing damages, and that upon the coming in of the report the plaintiff appeared and dismissed this suit because he was not willing to pay the damages awarded by the commissioners, and after dismissing that suit filed this petition which is substantially the same as the former, for the purpose of harassing defendants; 6th, That plaintiff is trifling with the court in dismissing and re-entering the .same suit.

The appellant’s abstract says: “On the same day the court took up said motion, heard argument of counsel and overruled the same, and heard evidence as to the legality of the proceedings, sufficiency of the petition and notice as well as argument of counsel and took the same under advisement until December 7, 1904.” Then on December 7th the record says the court found for the petitioner, appointed commissioners, etc. At the next February term the commissioners made their report, marking out the proposed road twenty feet wide, and assessing the damages, awarding to John Fitzmauriee $57, to the railroad company $41 and to John Turney $350'. On the coming in of that report defendant Turney filed objections to the amount of damages awarded Mm, setting out in detail the particulars in which his land was damaged and asking a jury to assess the damages. The court in accordance with that demand ordered a jury to be summoned to appear March 15, 1905, to assess Turney’s damages. But before the return of the venire facias, to-wit, on February 15th, Turney by his attorney by leave of court withdrew his objection to the amount of damages and filed a motion to quash the report of the commissioners and dismiss the proceedings; the ground of the motion being that the court had no jurisdiction to appoint this second set of commissioners, and they had no authority to act in the premises because of the former proceedings, begun at the August term, already mentioned.

The court overruled the motion, and on March 15th, a jury was empanelled to assess the damages; the jury assessed the damages at $350; whereupon the court rendered judgment in favor of Turney against plaintiff for $350 and costs up to the time of filing the objection, and a judgment against Turney for the costs after that date. It was adjudged that the plaintiff pay into the county treasury for John Fitzmauriee $57.10, for the C. B. & Q. railroad company $41, and for John Turney $350; and that the private road be established as prayed, giving the landowners until May 1, 1905, to build fences and give possession. That judgment was rendered March 15th, and the record shows that plaintiff on March 17th paid to the county treasurer the several sums of money required by the judgment. On March 17th, John Turney filed his affidavit for an appeal and his appeal bond, the appeal was allowed, and on March 28th the transcript was filed in the circuit court. At the April term of the circuit court appellant Turney appeared and filed a motion to dismiss the proceedings, assigning nineteen grounds. It is unnecessary to set out those grounds in full, it is sufficient now to say that they are chiefly the same grounds set out in the similar motion filed in the county court with changes rung in the form of the statement. We will follow the course marked out in the brief for appellant and consider the grounds as appellant has therein considered them. The appellant’s abstract shows that the motion to dismiss was heard and considered by the court and overruled, and in that connection the abstract says, “(See motion, ruling and exceptions in Bill of Exceptions).”

The bill of exceptions contains the motion in full and concerning the same, it says: “That afterwards on the same day and term the said motion being taken up and argued by counsel and considered by the court, was by the court overruled, and to which ruling of the court in overruling the said motion the defendant objector at the same time excepted and still excepts.” That is all there is in the bill of exceptions about the motion; if any evidence was introduced in support of it, it does not appear.

When the cause came on for trial in the circuit court a jury was waived and the cause submitted to the court, and thereupon it was agreed by the parties in open court that the question of damages should be waived, with the understanding that in the event the court should find for the plaintiff the damages assessed by the commissioners should be taken as the amount due defendant. .

The testimony on the part of the plaintiff was to the following effect:

The plaintiff’s tract of two- hundred and thirteen and two-thirds acres was originally a part of a larger tract owned by his father, who in 1902 executed deeds to his several children making partition of his land among them, conveying this two hundred and thirteen and two-thirds acres to the plaintiff. There is no public road through or touching plaintiff’s land. The route proposed is the shortest, most direct and accessible course from plaintiff’s land to the nearest public road. The public road which plaintiff seeks to reach runs from Mound City to Forest City. The latter is the nearest town to plaintiff, about one and a half miles distant, Mound City about ten miles. The length of the proposed road is about half a mile, more than half of which is on the land of John Fitzmaurice.

On the part of defendant the evidence tended to show that the plaintiff had another way which he had the right to travel leading from his land north to this same public road. The evidence of the defendant on this point was contained in certain alleged deeds from Patrick Fitzmaurice to his children and consisted in a reservation of a strip one rod wide off the east end of the land conveyed, “for the use of all grantor’s children and all their grantees and assigns.” The character of that evidence will be stated more particularly when its effect is discussed in the opinion. To rebut that evidence the plaintiff introduced testimony tending to show that that route 'was not only longer but also more inconvenient, involving among other hindrances the crossing of a creek, etc.

According to the plaintiff’s testimony, if he was going from his land to Forest City by way of that route he would travel three-quarters of a mile farther than by the proposed road; according to the defendant’s testimony, it would be only a half mile farther and that it was as convenient as the proposed road. The testimony for the plaintiff also tended to show that the road proposed had been in common use and he had travelled over it for eighteen or twenty years; one witness thought it had been so used for forty-five years; but it was closed when the plaintiff began this suit. A good deal of defendant’s evidence was directed to the question of the damages the proposed road would be to his land, cutting his best land in two; but as the amount of damages was covered by the agreement it is not necessary to set out that evidence here; it is sufficient to say that there was evidence to the effect that dividing the defendant’s farm by the proposed private road was a considerable damage to the land and a serious inconvenience to the defendant. There was evidence for the plaintiff to the effect that neither the damage to the land nor the inconvenience to the defendant was as great as he feared it would be.

Attached to appellant’s abstract is a diagram or plat showing the lay of the lands mentioned and the alleged private road reserved in the P'atrick Fitzmaurice deeds and also the proposed private road. Reference to that diagram will assist us in understanding the situation.

The court rendered the following findings and judgment to-wit:

“Now here at this time this matter coming on for hearing the question of damages being waived and all parties being present in court, Timothy Fitzmaurice in person and by his attorneys, Gr. W. "Murphy and Chas. Booher, and John Turney in person and by his attorneys, T. C. Dungan, and H. T. Alkire and J. W. Stokes, and the evidence being fully presented and arguments of counsel heard, the court finds that no public road passes through or touches the lands of the petitioner, Timothy Fitzmaurice, described in the petition in this case and that the private road asked to be established in said petition connects the said lands of the petitioner herein with the public road at a convenient point in Holt county, Missouri, and that said road is a way of necessity within the meaning of the law; and it further appeared to the court that all the proceedings had in this case in the county court of Holt county, Missouri, and all things allowed and found by the commissioners appointed by said county court have been and are legal and regular, that three disinterested freeholders of the county, A: H. Bailey, I. M. Minton and W. M. Terry, were duly appointed and qualified as commissioners as provided by law under the order of the county court in this cause, that they proceeded to view and did view the premises described in said petition and caused a road of the width of twenty feet to be marked out along the line described in'and including the strip of ground as set out, in the said petition, which road would cause as little injury as practicable to other persons, giving the beginning, course, ending, width and distance of said road, and made report thereof to the county court at its next term, said report also giving the cost of fences, it being necessary to erect fences, the lands being enclosed, with the kind of fences required, and also all of the items of damage to said John Turney, the report also giving all of said items and facts of description, costs and damages regarding the other lands sought to be condemned, belonging to John Fitzmaurice and the C. B. & Q. R. R. Co.; the court also finds that ten days’ notice was given as required by law, of the day on which and the term of the court to which said petition was to be presented, which notice was accompanied with a copy of the petition and served upon each of the defendants, to-wit, John Turney, John Fitzmaurice and the said C. B. & Q. R. R. Co.— it is therefore ordered and adjudged that all proceedings had in the county court in this behalf are hereby confirmed and approved.
“It is further ordered and adjudged that the said way be and the same is hereby established according’ to the report of the commissioners in this cause, to-wit: And that John Turney have and recover from the petitioner herein the sum of $350' and that the C. B. & Q. R. R. Co. have and recover the sum of $41 and that John Fitzmaurice have and recover the sum of $57; which said several sums are for the damages heretofore adjudged by the county court to be paid by Timothy P. Fitzmaurice to said parties as damages to the lands and for fencing and other purposes as adjudged by said county court, and it is further ordered and adjudged that the said petitioner pay said sums of money to the county treasurer of Holt county for the use of said defendants as herein adjudged, and that the petitioner pay all necessary costs in this cause except the costs arising from the trial had in the county court on the question of damages to lands of John Turney and objections made by him in that regard, and except all costs accruing in this appeal and incident thereto, which said costs are each and all adjudged against the said John Turney. It is further ordered and adjudged that the said John Turney, John Fitzmaurice and the C. B. & Q. R. R. Co., shall each surrender possession of said right of way within thirty days from this date and that each of them have until the expiration of said time to erect fences along the line of said way and otherwise open up said road as herein granted, and for said railroad company to put in proper crossings, grading and otherwise comply with this order. It is ordered and adjudged that the clerk of this court certify a copy of this judgment to the county court and to the objector, John Turney,”

Defendant Turney filed motions for a new trial and in arrest, which, were overruled and this appeal was taken.

I. Appellant contends that the county court had no jurisdiction of the cause and hence the circuit court could acquire none by appeal. This contention is based on two propositions, viz.: 1st, that the petition does not state facts authorizing the court to exercise jurisdiction; second, the notice was not sufficient.

(a). The first objection made to the petition is that it shows on the face that the proposed road was not a private road of necessity because the plaintiff already had a private way reserved in the deeds from Patrick Fitzmauriee to his children. That proposition is based on the statement in the petition “that there is a strip one rod wide across, the north side of the east half of the aforementioned tract belonging to, John Fitzmauriee which has been reserved by the grantors of said land [Patrick Fitzmauriee and his wife] to John Fitzmauriee, which reservation is for a roadway for the use of this petitioner and others.” The southwest quarter of the southwest quarter of section 19, township 60, range 38, forty acres, is the land of John Fitzmauriee lying east of and contiguous to the plaintiff’s land; east of that forty is the land of Turney. The proposed road begins at the northwest corner of this forty-acre tract- and runs east along' its northern line and continues on east through the land of Turney. Assuming that there is a private way reserved as stated, it does not begin until, going east from plaintiff’s land, you reach the east half of the north line of the tract, and it ends at the point where it touches defendant Turney’s land. It is of no use to plaintiff unless he can have it extended west to his own land and east through the land of appellant. There is nothing, therefore, in that statement that makes against the other statement in the petition that the proposed road “is a private way of necessity.” The petition complies with the requirement of the statute and of the Constitution on this point as interpreted in Colville v. Judy, 73 Mo. 651.

Under this head appellant in his brief also says “that it appears from the statements and admission that a part of defendant Turney’s land formerly belonged to Patrick Fitzmauriee and that he sold the same to Turney, reserving a right of way across it to this same public road, but that the deed misdescribed the location of the reservation,” etc. There is nothing to that effect in the petition and of course the ap1pellant cannot px-edicate what he calls a defect in the petition, fatal to the jurisdiction of the court, upon what he considers is shown by the evidence. But to save returning to that point again we will here say that there is nothing to that effect in the evidence. Defendant attempted to introduce oral evidence to show that there was such a deed and that it contained such a reservation, but on objection the evidence was ruled out and properly so. The contents of a deed not shown to be lost or out of reach of the party cannot be proven by oral evidence.

(b). As to the notice. It is not claimed by appellant that the notice to him or to John Fitzmauriee was not sufficient, but that the notice to the railroad company was not sufficient. Passing over the question of whether the appellant, who has had the full benefit of litigation of every point of merit in his case, can be heard to complain that another landowner whose land is to be taken has not had legal notice, we come to the question of the sufficiency of the notice to the railroad company. Section 9460, Revised Statutes 1899, Ann. Stat., p. 4345, provides that the petitioner, at least ten days before presenting his petition to the county court, shall cause a copy of it and a notice of the day on which it will be presented to be served on the owner or owners of the land through which it is proposed to pass; “but if the owner does not reside in the county notice shall be given by publication thereof in any newspaper published in the county, for four weeks prior to presentation to the county court.” The appellant contends that the railroad company being a foreign corporation is a non-resident of the county, and could be served only by publication. But the fact is the railroad company had a railroad running through the county and had a depot, a place of business there, and an agent or officer in charge of the depot, and the sheriff served the notice on that agent and gave him a copy of the petition. This service was in accordance with the requirements of section 570, Revised Statutes 1899, Ann. Stat., p. 597. We hold that that service was sufficient. It has several times been held in this State that a railroad company “is a resident of the county through which its line of road passes, and in which it has an agent upon whom process can be served, and where suits are authorized to be, commenced. ’ ’ [Slavens v. Railroad, 51 Mo. 308; Harding v. Railroad, 80 Mo. 659; Crutsinger v. Railroad, 82 Mo. 64.]

In each of those cases the defendant was a railroad company, sued in a justice’s court, summons served on its station agent in the county, judgment against defendant and appeal taken, but the appeal was not taken within ten days allowed by statute to a resident of the county though it was taken within the twenty days allowed to one who was not a resident of the county. The court held that the defendant was, in contemplation of law, a resident of the county. In one of those eases the defendant was a foreign corporation and in each of the two others,„ though it was a domestic corporation, it had its chief office and place of business in another county. Our St. Louis Court of Appeals applied the same rule in a case where the defendant was a foreign manufacturing corporation. [Young v. Niles & Scott Co., 122 Mo. App. 392.] The principles announced in those cases and the reasons on which they were founded apply to the case at bar. We hold that in contemplation of section 9460, for the purpose of serving the notice therein required, the railroad company operating its railroad in Holt county, having a place of business, to-wit, a depot or station house there and an agent in charge of it, was a resident of that county.

II. Appellant’s next point is that the plaintiff cannot maintain this proceeding because at a former term of the county court he presented a petition for the same proposed road, commissioners were appointed who made their report to which no objections were filed, but the plaintiff, deeming the damages awarded excessive, before any final judgment was rendered, dismissed that suit and began this one.

Whether or not the plaintiff by such alleged former proceeding would have been precluded from prosecuting this suit is not a question in this cáse, because there is no evidence in the record that there ever was any such former proceeding. The record of such a proceeding, if there was such, would not be a part of the record proper in this case and it could only come in here by being offered in evidence at the trial and embodied in the bill of exceptions. An appeal from a final judgment of the county court brings up only the record proper of that court; the trial in the circuit court is de novo. The record of the county court in this case shows that a motion to dismiss this proceeding was filed by defendant, heard by the court and overruled. No bill of exceptions can be taken in the county court, therefore we do not know upon what the motion was founded or what evidence if any was introduced to support it. The only thing that we know is what the record proper shows, to-wit, that there was a motion to dismiss filed, argued, heard and overruled. But when the ease came to the circuit court the defendant filed a motion to dismiss; that motion is properly preserved in the bill of exceptions, and the ruling of the court on the motion is properly shown in the record proper of the circuit court.

There is nothing difficult about this question; suppose defendant should be sued in an ordinary action of debt and in his answer should say in effect the plaintiff has no cause of action against defendant because at the last term of this court he sued defendant on this same alleged cause of action and, upon issue joined and trial had on the merits, the court rendered final judgment against him. That would unquestionably be a good plea in bar, but if issue was joined and defendant went to trial and failed to offer in evidence the record in the former suit his plea would avail him nothing.. Though the former suit had been in the same court yet it was not a part of the record in that case and could be brought to the notice of the court only by being introduced in evidence.

Appellant’s bill of exceptions sets out the motion in full, as it should do, and it shows that one of the grounds alleged was this former proceeding and the dismissal of it after the commissioners had made their report. But the bill of exceptions does not show that the appehant introduced the record of the county in the alleged former proceeding in evidence or any evidence at all in support of the motion. The record proper of the circuit court says: “And afterwards at the same term and on the same day the court having heard and considered defendant’s motion to dismiss proceedings, overruled the same and defendant excepted.” Turning to the bill of exceptions on this point we find this: ‘ ‘ Comes John Turney by his attorneys . . . and filed defendant’s motion to dismiss the petition and proceedings in said matter which, omitting the caption, is as follows: “Now comes,” etc. (setting out the motion and specifying nineteen causes in support of it); after which, and in reference to which, the bill of exception says: “That afterwards on the same day and term the said motion being taken up and argued by counsel and considered by the court was by the court overruled, and to which ruling of the court in overruling said motion the defendant, objector, at the time excepted and still excepts.” That is all there is in the bill of exceptions on the subject. It does not show that there was any evidence at all offered in support of the motion. In appellant’s abstract and brief there is what is claimed to be a transcript of the record of the county court in the alleged former proceedings, but there is nothing to show that it was ever shown to the trial court.

III. Appellant’s next point is that the county court had no- jurisdiction to render final judgment establishing the road until the damages assessed were all paid into the county treasury for the landowners. The record of the county court shows that on the filing of objections by appellant to the amount of damages awarded him and his demand for a jury to assess the same, the court ordered a jury and thereupon the jury came and assessed the damages, then the court entered judgment against the plaintiff in favor of the two defendants, who had not objected to the damages awarded them respectively by the commissioners, for the respective amounts of that award and against the plaintiff in favor of appellant for the amount of damages awarded him by the jury, and plaintiff was ordered to pay those several amounts to the county treasurer for the defendants respectively and it was adjudged that the private road be established, giving defendant until May 1st to build fences and give possession. That was on March 15th, and the record also shows that on March 17th, the plaintiff paid the several sums into the county treasury as ordered. The judgment against the plaintiff for' the several amounts awarded the several defendants and the order to him to pay the same into the county treasury and establishing the road is all one judgment, and of course that part of the judgment establishing the road could not be enforced until the preceding part, the payment of the money into the. county treasury, was complied with. The judgment in this form is exactly as prescribed in section 9462, Revised Statutes 1899, Ann. Stat. 4345.

IV. It is said that the judgment is erroneous because it does not specify and describe the private right of way sought to be established, either specifically, or by reference to the petition or the report of the commissioners. The petition describes exactly by metes and bounds the proposed road, specifying the part that is to go over the land of each defendant. In his abstract appellant abbreviates the report of the commissioners (and properly so) saying that they filed their report of assessment of daiirages and marking out said private road twenty feet wide over the lands of said John Fitzmauriee, John Turney and the O. B. & Q. R. R. Co. as described, over their said described lands, and allowing John Fitzmauriee damages, etc., setting out the damages allowed each.

The decree of the court recites as a finding, that the commissioners “proceeded to view and did view the premises described in said petition and caused a road of the width of twenty feet to be marked out along the line described in and including the strip of ground as set out in the petition, etc. Thus we see that the report of the commissioners described the road as described in the petition, the court finds that to be the fact, and then the court in its decree says: “It is further ordered and adjudged that the said way be and the same is hereby established according to the report of the commissioners in this cause, to-wit.” There the clerk ought to have copied the description into the decree, bnt he failed to do so. But the failure is not fatal because the decree makes specific reference to the petition and the report, both of which are on file, and are parts of the record in the case and can be referred to for the specification. It is not essential to the validity of the decree that this omission be supplied, but inasmuch as both the petition and the report are loose papers and liable to be misplaced the circuit court on motion of either party ought to have a corrected entry nunc pro tunc made supplying this omission, there being sufficient in the record to authorize such entry.

V. It is contended that the circuit court had no jurisdiction of the case because neither the railroad company nor John Fitzmaurice appealed and that there was no record or other evidence that the damages awarded then had been paid. If John Fitzmaurice and the railroad company were both satisfied with the judgment there was no occasion for them to appeal, in fact they could not with truth make the affidavit for an appeal, nor can the appellant nullify the whole proceeding by taking an appeal. As to the payment to them of the damages assessed, this appellant is not concerned, that is their affair, but the record proper of the county court shows that those amounts were paid into the county treasury.

VI. Lastly it is insisted that the proposed road is not a road of necessity but of convenience only. That point presents a question of fact only, and the • record shows that there was evidence pro and con and the court after hearing’ all the evidence found that it was a road of necessity.

There was an effort on the part of appellant to show that there was a road running north from plaintiff ’s land to the same public road that he seeks to reaeh by this proposed road, and which though longer was available to him and reduced the proposed road to one of convenience, only, not one of necessity. Appellant’s chief evidence on this point was claimed to be in certain deeds said to have been executed by the father of plaintiff to his children. The deed to the plaintiff was introduced in evidence containing this clause: “Grantors also reserve a roadway across the eastern end of the north half of the above-described land, one rod wide, for the use of all grantor’s children and all their grantees and assigns.” That was the only one of the deeds in evidence. In a colloquy between counsel it was admitted that there was a reservation of the same kind in all the deeds except one or two. In one of John’s there was no reservation; that the father afterwards bought back the land deeded to Edward and deeded it to John without any reservation. It was admitted that there was a deed to John conveying, besides other land, twenty acres off of the east side of the southwest quarter of the southwest quarter of section 19, “except a strip' one rod wide off the north end thereof for the use of all grantor’s children and ail their grantees for a roadway forever.” Reference to the diagram will show that the strip there reserved is not a part of the alleged road leading from plaintiff’s land north to the public road, but is a part of the now proposed road, the effect of which we have already above in paragraph one considered. The evidence therefore failed to show that the plaintiff had a right reserved by his father’s deeds reaching from his land north to the public road, but there was oral evidence tending to show that he had been in the habit of using that strip as a way out from his land; but on his part the evidence tended to show that it was three-quarters of a mile longer and was encumbered with impediments. We think the court was justified in finding that the proposed road was one of necessity.

We find no error in the record. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    GROVER COLEMAN, by his Guardian, P. P. BOGGAN, Appellant, v. MATTIE ROBERTS and DAL ROBERTS.
    Division One,
    November 25, 1908.
    APPEAL: Dismissal: Insufficient Abstract. However insufficient the abstract may be in other respects, if the petition, answer and reply are properly abstracted, and a certified copy of the judgment and order of appeal is in the office o'f the clerk of the appellate court, which is before the court and accessible, that much of the record proper is reviewable on appeal, and the appellant is entitled to have the appellate court determine whether or not the judgment is one that can be permitted to stand on the face of the pleadings, and the appeal will not be dismissed, but, there being no error in the record proper, the judgment will be affirmed.
    Appeal from Mississippi Circuit Court. — lion. II. G. Riley, Judge.
    Am?IR.MED.

      Boone & Lee for appellant. ■

      Russell & Deal for respondents.
   GRAVES, J.

In this case there is a motion to dismiss the appeal for failure to file a sufficient abstract of record as required by the rule of this court. That the abstract falls far short of this rule we are all agreed. The abstract is deficient in many respects as pointed out in the very recent cases of Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442; Pennowfsky v. Coerver, 205 Mo. 135. In these cases we have fully covered our rule and the requisites of an abstract and feel that what we have therein said is sufficient for the guidance of the bar. For that reason we do not take up in detail the deficiencies of this abstract. The motion, however, is to dismiss the appeal. The appeal was taken by the short form. In the abstract before us, the petition, answer and reply are properly abstracted. In our clerk’s office is a certified copy of the judgment and order granting' the appeal, which is likewise before us, and under such circumstances that much of the record proper is for consideration. If SO', the appellant is entitled to the judgment of the court upon the question as to whether or not the judgment entered is one which can be permitted to stand upon the face of the pleadings and judgment. In such case we will not dismiss the appeal, but will affirm or reverse the judgment as may be required by the record properly before us.

In Stark v. Zehnder, 204 Mo. l. c. 448, upon a similar condition of the record we said: “Upon that condition of the abstract respondents base a motion to dismiss the appeal. We should not dismiss the appeal in this case because we have, in sufficient form, the plea,dings, the judgment and the order allowing the appeal, and appellants are entitled to show if they can that the judgment is erroneous on the face of the pleadings, but in the absence of a sufficient showing by the abstract that on the face of the court record proper there are entries showing that the motion for a new trial was filed, that it was overruled and that the bill of exceptions was filed, we cannot consider any alleged error of the court contained in the bill of exceptions. [Hill v. Butler County, 195 Mo. 511, and other cases cited by respondents in their briefs on this motion.]”

The record before ns does not abstract the order granting the appeal, for the only thing said therein is in this language: “This motion being overruled plaintiff duly excepted and in due time filed his affidavit for appeal.” From this it will be observed that the only thing said about an appeal is the filing of an affidavit therefor. If it were a matter of first impression, we might feel constrained to say that because of the failure to abstract this record entry granting an appeal, we should merely dismiss the appeal. That to abstract such record, as indicated in other cases, is the better practice, and one really contemplated by the rule, cannot be questioned. But in the case of Pennowfsky v. Coerver, 205 Mo. 136, we seem to have considered it sufficient, if there was, as a matter of fact, a certified copy of the judgment and order granting the appeal on file, which of course would be with our clerk and the papers in the case, that such would be taken to cure the defect in the abstract. In that case, covering’ that point we said:

“At a trial to a jury, semble, the verdict was in favor of plaintiff, and defendant ostensibly appealed; but through inadvertence he has made it impossible for us to consider his appeal, and it must be dismissed for reasons. For instance:
“(1) Because (imprimis) there is here no certified copy of the record entry of the judgment appealed from, ‘showing the term and day of the .term, month and year upon which the same shall have been rendered, together with the order granting the appeal,’ as required by section 813, Revised Statutes 1899. Nor is there here, in lieu thereof, any perfect transcript or abstract showing’ any judgment whatever or order granting an appeal.”

Whilst this case does not in terms say that the filing of a certified copy of the judgment and order granting an appeal, would supply the deficiency in the abstract, yet it might be so construed, and perhaps upon principle such could be justified, and this for the reason that in a short transcript such paper is the basis of our jurisdiction, and is of easy access. So that considering all the eases, we are disposed to overrule the motion to dismiss the appeal, but in so doing, we cannot, for other deficiencies in the record, consider more than the pleadings and the judgment. Such has been the course taken by the Kansas City Court of Appeals, Wilds v. Ins. Co., 65 Mo. App. l. c. 80, wherein Gill, J., said: “ While, then, we shall overrule the motion to dismiss the appeal, the case will be retained simply to determine the one point sufficiently abstracted, to-wit: does the petition state facts sufficient to constitute a cause of action?”

Considering the pleadings and judgment in this case, we find an ordinary petition in ejectment. Answer, a general denial and plea of the ten-year Statute of Limitations. Reply, a general denial. Finding and judgment for defendant and against plaintiff for costs. Such a judgment can be consistently rendered upon the pleadings and upon the abstract before us. This is the only question for our determination.

The judgment of the circuit court will therefore be affirmed.

All concur.


author: LAMM, J.

text:
    CITY OF ST. LOUIS v. EAGLE PACKET COMPANY, Appellant.
    Division One,
    November 25, 1908.
    1. WHARFAGE FEES: Tonnage: Constitutional Ordinance. A city has authority to construct a wharf on the Mississippi river, and to collect fees and charges from boats using said wharf in landing, and to regulate and proportion such fees or charges to the number of tons of the vessel using the wharf. Such fees are not tonnage charges, and do not violate the provision of the Federal Constitution denying to a State the power to “lay any duty on tonnage.” ,
    2. -: Proof of Use: Slack Chains. If the defendant’s boat chains remained attached to the wharf by ring-stones and chains connecting therewith, the fact that the chains were slack in the water does not show no use of the wharf.
    3. -: -: Attached to Railroad Piers. If the wharf-boat chains were attached to the ring-stones of the wharf, the fact that, in time of extraordinary high water, the wharfboat to which was attached the steamboat, was also attached by other chains to the piers of an elevated railroad at the outward edge of the wharf, does not show that the steamboat did not use the wharf for landing purposes. The attachment to the piers was not the only attachment anchoring and keeping the wharfboat in position, and the ordinance provides for wharfage charges if the boat is made fast to the wharf by “anything thereto fastened,” and in a broad sense the piers of the railroad, being fastened to the wharf, were in a way a part of the wharf.
    4. -: -: Complete Use. In flood time complete use of the wharf is impossible, but complete use is not necessary to the right of the city to collect Wharfage fees.
    5. -: -: What Constitutes Use of a wharf, dock or pier, so as to create liability for wharfage, depends greatly upon the facts and circumstances of each particular case.
    Appeal from St. Louis City Circuit Court.— Hon. Jesse A. McDonald,' Judge.
    Affirmed,

      Guy A. Thompson for appellant.
    (1) The court erred in overruling defendant’s demurrer to plaintiff’s evidence. That evidence failed to establish that defendant in making the landings complained of, used the public wharf of the city of St. Louis. Indeed, that evidence affirmatively established that the city had no wharf when said landings were made, but that said wharf was entirely covered by the flood waters of the Mississippi river. Re Lucy E., 30 Fed. 867; Cannon v. New Orleans, 21 'Wall. 577; Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. Tobin, 100 IT. S. 430; Transportation Co. v. Parkersburg, 107 IT. S. 691; St. Louis v. Boeckler Lbr. Co., 13 Mo. App. 56; Cape Girardeau v. Campbell, 26 Mo. App. 12; Inman Steamship Co. v. Tinker, 94 IT. S. 238. (2) The court erred in giving plaintiff’s instruction 2. Authorities under point I: (3) The court erred in giving plaintiff’s instruction 3. Authorities under point I. (4) The court erred in refusing to give defendant’s peremptory instruction at the close of the entire case. Authorities cited under point I.

      Charles W. Bates and A. E. Roudebush for respondent.
    (1) The ordinance on which this action is based is valid, and has been so adjudged. Packet Co1, v. St. Louis, 100 IT. S. 423; St. Louis v. Transportation Co., 84 Mo. 159. (2) On the assignment that a demurrer to the evidence should have been sustained, the appellate court, in a law case, will not weigh the evidence, but will only examine the record to1 see if it contains evidence tending to support the verdict. Long v. Moon, 107 Mo. 334; Kennefick-Hammond Co. v. Ins. Co., 119 Mo. App. 308; Dowling v. Wheeler, 117 Mo. App. 308. (3) On the assignment that a demurrer to the evidence should have been sustained, the respondent may call to the support of the verdict every reasonable inference which may be drawn from the evidence. Wilson v. Board of Education, 63 Mo. 140; Buesehing v. Gas Light Co., 73 Mo. 231; Heether v. Huntsville, 121 Mo. App. 521. (4) If a wharfinger, at its own expense, provides any reasonable facilities for mooring, landing or transferring passengers or freight, and a vessel elects to use such facilities, the liability for wharfage is at once incurred. Vicksburg v. Tobin, 100 U. S. 430; The Whitburn, 7 Fed. 925; Farnam on Waters, sec. 122; 29 Am. and Eng. Ency. Law (1 Ed.), 89; Ex parte Easton, 95 U. S. 73. -(5) Instruction 2 for plaintiff was proper, under the pleadings and the evidence. Fearey v. O’Neil, 149 Mo-. 475; Alberger v. "White, 117 Mo. 363; Century Dictionary, “Connect;” “Attach.”
   LAMM, J.

St. Louis, as a wharfinger, charges wharfage to river craft using its improved wharf— the rate regulated by ordinance according to- tons burden, got at by customhouse, hull measurement.

The Eagle Packet Company, at the times in hand, owned and ran a fleet of steamboats plying in the carrying trade between the port of St. Louis and other ports on the navigable waters of the Mississippi and its tributaries. One of these ships was the “Spread Eagle;” another, the “Bald Eagle.”

On certain dates in June, 1903, these craft came into the harbor at St. Louis, discharged and took on freight, U. S. mail and passengers and, being charged wharfage ($194.79, in the aggregate) the Packet Company refused payment. In a suit in the circuit court of St. Louis to recover said wharfage-, plaintiff had judgment and defendant appeals.

The petition, counting on the ordinances regulating wharfs and wharfage- dues, avers that on dates-specified said steamboats came into- the harbor of St. Louis upon the waters, of the Mississippi river and made fast to a certain wharfboat, fastened to the improved public wharf of the city at or near the foot of Vine street, and thereby wharfage dues were incurred.

The answer denies the averments of the petition, except in certain particulars not important on review. It mext pleads that the Bald Eagle and the Spread Eagle were duly enrolled and licensed in the coasting trade of the United States and carried freight and passengers and United States mails in plying between St. Louis and other river towns. It then pleads certain provisions of the ordinances of St. Louis relating to wharfs and wharfage, and. avers that under these provisions it had the option of paying wharfage in advance and did so pay for six months, covering June, 1903, and by such payment obtained a license to land the Bald Eagle a certain number of times per week and to land the Spread Eagle a certain number of times .per week; that all the landings made were within the license privilege. By other averments, it alleges that the improved public wharf of defendant city was submerged by the flood waters of the Mississippi river so that it was impossible to land at said wharf or to use it in any way at said dates. It next alleged that in order to land during said flood, defendant constructed a bridge, moored its wharfboat to the steel supporting columns of the elevated railroad at the foot of Vine, and by means of said bridge and wharfboat, making no use whatever of the wharf, said steamboats took on and discharged freight, passengers and mail. As a further defense, it alleges that the demands in suit were not based upon the use of plaintiff’s wharf, but are (in effect) an attempt to lay an unconstitutional duty on tonnage. That a duty on tonnage violates article 1, section 10, clause 3, of the Constitution of the United States. Following that is an averment that the ordinances pleaded in the petition are null and void because violative of said clause 3 of section 10, article 1, of the Federal Constitution, in that the right of plaintiff to exact wharfage dues is not limited to the use of plaintiff’s improved public wharf, but is in truth and fact a duty on tonnage.

In reply, plaintiff admits defendant héld licenses paid for in advance for the landing- of the Bald Eagle and the Spread Eagle at its wharf in its harbor during Juiie, 1903, but avers that by express license terms the'landings were restricted to a certain specified number per week and that tbe wharfage dues for the landings in suit were in excess of the license number. Plaintiff denies it was impossible for defendant to land its steamboats at the improved public wharf of the city or use said wharf; denies that defendant moored its wharfboat to the columns supporting the elevated railroad. Avers to the contrary that the wharfboat was fastened to the wharf and that freight, passengers and mail were landed from said steamboats on and across said wharfboat so attached to the public wharf. Plaintiff pleads further provisions of the ordinances of the city •relating to wharfs and wharf-age dues, and, denying that its ordinances violate the Constitution of tbe United States, renews its prayer fox-judgment.

It will be seen that the paper issues were: (1) Are plaintiff’s wharf and wharfage ordinances violative of the Constitution of the- United States? (2) Did defendant’s license cover the landings for which wharfage is charged? (3) Did defendant use plaintiff’s property, to-wit, its improved public wharf, for landing its steamboats Bald Eagle and Spread Eagle so as to become liable for wharfage as compensation for such use?

Attending to the evidence: The charter of St. Louis provides (Art. 3, sec. 26, )that: “The Mayor and Assembly shall have power within the city by ordinances not inconsistent with the Constitution or any law of this State or of the charter, to construct all needful improvements in the harbor; to erect, repair and regulate public wharfs and docks,” etc., and “to regulate the stationing, anchoring and mooring of vessels and wharfboats within the city; to charge and collect wharfage and tonnage dues, levee rates,” etc.

Ordinances were introduced to the effect following:

(1) “Sec. 382 — Wharfage Dues. — The following wharfage dues shall be collected from each and every . boat of whatever kind or description, except such as are hereinafter exempt from paying wharfage, or which a rate of wharfage is hereinafter provided for, each and every time the same shall come within the harbor of the city and land at any public wharf or landing, or be made fast thereto or to anything thereto fastened, or shall bring a tow into or take a tow out . of the harbor or shall receive or discharge any freight or passengers in this city, to-wit: [Here follows a schedule of wharfage rates.] Provided, that during the low stages of water either in the Mississippi river or in the rivers tributary thereto' making it necessary to use barges as lighters to enable boats to carry freight equal to their tonnage capacity, wharfage shall be charged on the tonnage capacity of the boat, and not on the lighters.”

(2) Section 384. By that, provision was made for paying in advance at certain reductions from regular rates, also that: “If more trips are made during any week than authorized by the license. . . wharfage at the full rate specified in section 382 shall be collected for such extra trips . . but no deduction must be allowed for less trips during any, one week than those authorized by the license. ’ It further ordains that the license period on application to the harbor and wharfage commissioners might be pieced ont to cover a period during which the named vessels were prevented from running on account of low water or ice.

(3) Section 394, which ordains that wharfage is due and collectible as soon as the liability to pay accrues; that it is due and collectible on each boat at once on its arrival at any public landing in the harbor except in cases covered by license.

(4) Section 404, which exempts steamboats, and other water craft from wharfage when they land on portions of the wharf where no money has been expended by 'the ci ty to facilitate the landing of vessels or the loading or unloading of freight or passengers.

(5) Section 411, which provides for wharfboat privileges and ordains that a specified annual rental be paid for each front foot of wharf or landing occupied by a wharfboat. That section contains this provision: “The mooring of any wharfboat shall not affect in any manner the wharfage or State or city taxes, dues or levee rates assessed or levied on any steamboat or other water craft landing thereat, but such wharf-age tax, dues or rates shall be collected from each boat landing at any wharfboat as though said wharfboat was not there.”

Defendant introduced its licenses for the Spread Eagle and Bald Eagle covering the wharfage time. Said licenses refer in terms to a certain number of specified landings per week for each vessel and state that the license fee, in lieu of wharfage, relates to said landings.

There was testimony satisfactorily showing that defendant’s ships landed at the harbor in St. Louis in excess of the permit in the licenses and that the amount sued for was due for such excess, provided wharfage was due at all. *

The record shows that in the harbor of St. Louis on the west bank of the Mississippi river there are sis miles of improved wharf and fourteen miles of unimproved. At the locus the improved wharf is paved' with granite, from low water mark on the east, west 265 feet to the west building line of Front street or the levee. That portion of the wharf, known as Front street, lies on a horizontal plane. That portion between Front and low water mark is on a plane inclined to the river. On the west portion of the wharf is a superstructure referred to in the record as an elevated railroad built on piers or supporting steel columns. The western row of these piers is, say, thirty feet east of the west line of the wharf, the eastern row is still eighteen feet to the east. Yine is a paved public street of St. Louis running east and west at right angles to the wharf, with its foot at the wharf. As part of the wharf, the city has placed large blocks of stone, khown as ring-stones, with a face variation of from eighteen to forty square feet. Their upper surface is flush with the granite paving and the stones are imbedded from two to three feet. These stones have iron staples leaded in and in each staple are several large iron rings. • To these rings wharfboats are fastened by hawsers, iron chains and lines. Some of these ring-stones are closer to low water mark than others. They are put in at irregular intervals — one line of them being along the dividing line where the two planes of the wharf meet, that is, from seventy-five to eighty-five feet east of the west wharf-line'.

It seems that in the port of St. Louis vessels do not tie up directly to the ring-stones on the wharf, but connect wdth and fasten to what is known as “wharfboats.” Defendant company owned a wharf-boat moored in the river at the foot of Vine. It was three hundred feet in length and was tied to some of said ring-stones by three or more iron chains. Such chains, when three are used, are known as a head-chain, a breast-chain and a stern-chain. One of the chains (whether the head, breast or stern one is not disclosed) of defendant’s wharfboat was fastened to a ring-stone planted in the wharf by defendant, itself, some twenty years gone and we infer this particular ring-stone was nearer low water mark than the others used by the wharfboat.

In June, 1903, the Mississippi river was at flood-tide and the city wharf (at the locus) was wholly submerged. The depth of water on the wharf is not stated, nor do- we know how much water the wharf-boat or fiatboat (hereinafter mentioned) drew. In this condition of things, defendant’s wharfboat was pulled, or floated, broadside to inland. At high water times, the custom was to pull or float wharfboats up the levee by use of the fastening chains. In this instance, presumably by such use, the ring-stone placed by defendant itself was pulled up, but the wharfboat at the crest of flood-tide, as at its ebb, remained attached to the other ring-stones by its other chains. Defendant put in some testimony tending to show that these chains lay slack in the water. It is agreed, on all sides, however, that the chains were not visible under the turpid water. And plaintiff put in proof to the effect that in locating wharfboats during flood-tide their chains were usually shortened as the water rose; and that in this instance defendant’s wharfboat lay practically over the ring-stones to which its chains remained attached. According to defendant’s evidence it lay west of them so that if the chains were taut and drew they would have dragged the wharfboat towards the river instead of making it hug the shore. It stands admitted that with the aid of some harbor officials defendant threw out two lines or chains and lashed them to the steel columns of the elevated railroad, to hold or help hold the wharfboat in place. To use a wharf-boat in landing, devices, known in the St. Louis harbor as “stages,” were used. Stages were heavy platforms filling a like office to gangplanks over which passengers and freight wagons went on the wharfhoat and thence to the ship. The plan of landing during the rise was this: A little distance west of the. wharfhoat as pulled inland, a flatboat was stationed. Whether this flatboat was afloat or aground on the wharf is not clear. Connecting this flatboat with the wharfhoat were stages. West of the flatboat, to the dry foot of Vine, a temporary bridge was thrown over the water. Whether this bridge had intermediate supports is not disclosed. If so, presumably they rested on the wharf. Passengers and freight embarking went from Vine over this bridge to the flatboat, thence over it to the stages, thence over them to the' wharfhoat, thence over the wharfhoat to the Spread Eagle or Bald Eagle.

Defendant was refused a peremptory instruction.

Thereupon the court gave plaintiff an instruction on the measure of recovery and one, of its own motion, relating to the form of the verdict — neither of which concerns us.

The instruction on the merits on which the case was put to the jury on behalf of plaintiff follows:

“The court instructs the jury that under the pleadings if they believe from the evidence that defendant’s steamboats Bald Eagle and Spread Eagle, or either of them, made fast to or landed passengers or freight or mails at or over defendant’s wharfhoat riding upon the' waters of the Mississippi river at or near the foot of Vine street, in the city of St. Louis, Missouri, at any of the times mentioned in the petition and statement of account thereto attached, and that such landings or fastenings were in excess in number of two landings per week for the steamboat Bald Eagle and six landings per week for the steamboat Spread Eagle; and that at said times said wharfhoat was connected or attached by chains to iron ring bolts set in the levee, then the jury should find for the plaintiff in the sum of $8.39 for each time in excess of two times per week for each of the weeks beginning June 8th and June 15, 1903, the steamboat Bald Eagle did so make fast or land passengers or freight or mail at said wharfboat, and $8.53 for each time in excess of six times per week for each of the weeks beginning June 4th, June 11th and June 18, 1903, the steamboat Spread Eagle did so make fast or land passengers, freight or mail to, at or over said wharfboat.
“And you are further instructed that although you may believe and find that in making such landing aforesaid, the defendant attached its wharfboat, on and over which said landings were made, to the piers of the elevated railroad, and constructed stages, flatboats, or bridges for the carriage of its passengers, freight and mail over the waters into and upon the pavement of Vine street, yet the plaintiff would be entitled to recover as aforesaid if you further find from the evidence that in making all such landings the defendant made use of the city’s wharf by using a certain iron ring bolt or ring bolts set in said levee, for the purpose of holding and securing in position defendant’s said wharfboat for its use in making such landings.”

Defendant prayed and got two instructions, viz.:

“1. The court instructs the jury that the landings of the steamboats ‘Bald Eagle’ and ‘Spread Eagle,’ for which the city of St. Louis seeks to recover wharf-age, were all made from the 8th of June, 1903, to the 19th of June, 1903, both “inclusive; and if you find from the evidence that during all of said time the improved public wharf of the city of St. Louis was entirely covered by the water of the Mississippi river, and that in making said landings ■ said steamboats ‘Bald Eagle’ and ‘ Spread Eagle’ could not, and in fact did not, make any use of said improved public wharf on account of said high water, then and in such case your verdict must he for the defendant.
“2. The court instructs the jury that the landings of the steamboats ‘Bald Eagle’ and ‘Spread Eagle,’ for which the city of St. Louis seeks to recover wharfage, were all made from the 8th day of June, 1903, to the 19th of June, 1903, both inclusive, and you are further instructed that the only ground upon which the power of the city of St. Louis to exact what are known as wharfage dues can be upheld, is that said city furnishes an improved wharf for the convenience of vessels, and that the masters and owners of such vessels elect to use the improved wharf, and do in fact use it, in landing such vessels, or in receiving or discharging their cargoes or passengers; and if you find from the evidence that during all of the time when the landings complained of were made, the improved public wharf of the city of St. Louis was entirely covered by the flood waters of the Mississippi river, at the time and place where it appears from the evidence that the defendant’s said steamboats made said landings; so that the said improved wharf at said time and place could not, and in fact was not in any manner used by defendant in effecting said landings complained of, then and in such case your verdict must be for the defendant.”

Defendant was refused three instructions. Two of them put a construction on the license permits relating to landings, which, under the case stated, we deem without meritorious substance. The other singled out a fact in the case and gave it too much prominence. We shall set forth none of them, as we are of opinion they may be passed by without discussion. The case made was clearly outside the license permission, and that view of the case is put aside.

The material errors assigned cover the following questions: First, Do the ordinances of plaintiff city regulating wharfs and wharfage dues violate' the Federal Constitution? Second, Is the case made one to go to the jury on the facts ?

I. Of the constitutionality of the ordinances.

The clause of the Federal Constitution invoked reads: “No State shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into- any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.’’’

Defendant ¡contends, the ordinance is bad as violative of the foregoing clause. But that contention must be ruled against it; because the ordinance in question (or one of similar character) was. before the Supreme Court of the United States in Packet Co. v. St. Louis, 100 U. S. 423, and was sustained, against an assault broader and deeper than that delivered here. It was there argued that the ordinance violated not only the clause set forth but that clause of the Federal Constitution providing that: “No tax or duty shall be laid on articles exported from any State. No preference shall be given any regulation of commerce or revenue to the ports of any one State over those of another; nor shall any vessels bound to or from one State be obliged to enter, clear or pay duties in another;” and the other clause conferring upon Congress the right to regulate commerce among the several States. Not only so, but ■"that it violated the Treaty of Paris, 1783, which declares that “the navigation of the River Mississippi, from its source to the ocean, shall forever remain free and open to the subjects of Great Britain and the citizens of the United States;” and violated the Treaty of Spain concluded October 27, 1795, which declares: “. . . And his Catholic Majesty has likewise agreed that the navigation of the said river, in its whole breadth from its source to the ocean, shall be free to his subjects and the citizens of the United States;” and violated the historical Ordinance of 1787, which ordains that: ‘ The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common.highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, that may be admitted into the confederacy, without any tax, impost, or duty therefor.”

As said, the court, speaking through Mr. Justice Harlan, sustained the ordinances against an assault delivered along all the lines indicated. And this court in St. Louis v. Transportation Co., 84 Mo. 156, has construed the decision in Packet Co. v. St. Louis, supra, as adjudging the validity of those ordinances from a constitutional viewpoint. [P. 159.]

In Packet Co. v. Keokuk, 95 U. S. l. c. 84, et seq., the United States Supreme Court, through Mr. Justice Strong, pointed out the distinction to be observed between imposing an invalid tax upon tonnage and the' mere valid collection of wharfage, dues. The learned justice there said:

“To determine whether the charge prescribed by the ordinance in question is a duty on tonnage, within the meaning of the Constitution, it is necessary to observe carefully its object and essence. If the charge is clearly a duty, a tax, or-burden, which in its essence is a contribution claimed1 for the privilege of entering the port of Keokuk, or remaining in it, or departing from it, imposed, as it is, by authority of the State, and measured by the capacity of the vessel, it is doubtless embraced by the constitutional prohibition of such a duty. But a charge for services rendered or for conveniences provided is in no sense a tax or a duty. It is not a hindrance or impediment to free navigation. The prohibition to the State against the imposition of a duty of tonnage was designed to guard against local hindrances to trade and carriage by vessels, hot to relieve them from liability to claims for assistance rendered and facilities furnished for trade and commerce. It is a tax or a duty that is prohibited: something imposed by virtue of sovereignty, not claimed in right of proprietorship. Wharfage is of the latter character. Providing a Avharf to which vessels may make fast, or at which they may conveniently load or unload, is rendering them a service. The character of the service is the same whether the wharf is built and offered for use by a State, a municipal corporation, or a private individual; and, when compensation is demanded for the use of the wharf, the demand is an assertion, not of sovereignty, but a right of property. A passing vessel may use the wharf or not, at its election, and thus may incur liability for wharfage or not, at the choice of the master or owner. No one would claim that a demand of compensation for the use of a drydock for repairing a vessel, or a demand for towage in a harbor, would be a demand of a tonnage tax, no matter whether the dock was the property of a private individual or of a State, and no matter Avhether proportioned or not to the size or tonnage of the vessel. There is no essential difference between such a demand and one for the use of a wharf. It has always been held that wharfage dues may be exacted; and it is believed that they have been collected in ports where the wharves have belonged to the State or a municipal corporation ever since the adoption of the Constitution. In Cannon v. New Orleans, 20' Wall. 577, this court, while holding an ordinance void that fixed dues upon steamboats which should moor or land in any part of the port of New Orleans, measured by the number of tons of the boats, because substantially a tax for the privilege of stopping in the port, and, therefore, a duty or tonnage, carefully guarded the right to exact wharf-age. The language of the court -yas: ‘In saying this (namely, denying the validity of the ordinance then before it), we do not understand that this principle interposes any hindrance to the recovery from any vessel landing at a wharf or pier owned by an individual, or by a municipal or other corporation, a just compensation for the use of such property. It is a doctrine too' well settled, and a practice too common and too essential to the interests of commerce and navigation, to admit of a doubt, that for the use of such structures, erected by individual enterprise and recognized everywhere as private property, a reasonable compensation can be exacted. And it may be safely admitted, also-, that it is within the power of the State to regulate this compensation, so as to prevent extortion, a power which is often very properly delegated to the local municipal authority. Nor do we see any reason why, when a city or other municipality is the owner of such structures, built by its own money, to assist vessels landing within its limits in the pursuit of their business, the city should not be allowed to exact and receive this reasonable compensation as well as individuals.’
“No doubt, neither a State nor a municipal corporation can be permitted to impose a tax upon tonnage under cover of laws or ordinances ostensibly passed to collect wharfage. This has sometimes been attempted, but the ordinances will always be carefully scrutinized. In Cannon v. New Orleans, the ordinance was held invalid, not because the charge was for wharf-age, nor even because it was proportioned to the tonnage of the vessels, but because the charge was not for wharfage or any service rendered. It was for stopping-in the harbor, though no wharf was used. Such, also, was Northwestern Packet Co. v. St. Paul, 3 Dill. 454. So, in Steamship Company v. Portwardens, 6 Wall. 31, the statute held void imposed a tax upon every ship entering the port. This was held to he a like regulation of commerce and a duty of tonnage. It was a sovereign exaction, not a charge for compensation. Of the same character was the tax held prohibited in Peete v. Morgan, 19 id. 581.
“It is insisted, however, on behalf of the plaintiffs in error, that the charge prescribed by the ordinance must be considered as an imposition of a duty of tonnage, because it is regulated by and proportioned to the number of tons of the vessels using the wharf; and the argument is attempted to be supported by the ruling of this court in State Tonnage Tax Cases, 12 Wall. 204. But this is a misconception of those cases.”

We have quoted at large from Packet Co. v. Keokuk at some expense in brevity because that case was decided by the final arbiter on the matter in judgment, and because it exhausts the subject and renders further comment unfit. Taken together and fairly construed the ordinance provisions plainly pertain to wharfage and not to a duty on tonnage. In this view they aid and do not impede commerce. Being susceptible of a construction making them valid and constitutional we are bound to put that construction upon them, and shall do so.

The point is ruled against defendant..

II. Was there a case made for the jury? If not the peremptory instruction should have been given. If so, it was well overruled.

It is a trite rule of appellate procedure that in a law case, this court on appeal, on demurrer to the evidence, will only examine the record to see if the evidence supports the verdict. So, on demurrer every reasonable inference to be deduced from the evidence may be invoked against demurrant. So, in respondent’s favor, all his contradicted testimony is taken as true. The trial theory of both parties litigant, as outlined in the pleadings and instructions, was that in order to exact wharfage the Bald Eagle and Spread Eagle must have made some appreciable use of the-wharf. Such, too, is the ordinance theory. [Secs. 382 and 404, supra.] Indeed, the idea of use of the private property of the wharfinger lies at the root and is of the essence of a legal charge of wharfage. [See authorities, supra; St. Louis v. Lumber Co., 13 Mo. App. 56.] This ease, then, has come to narrow itself to one single question of fact, viz.: Did defendant make use of the improved wharf of St. Louis in landing its boats on the dates alleged during the flood of 1903?

That defendant’s boats remained attached to the wharf by ring-stones and connecting chains is shown. It is argued these chains were slack in the water. If that were so, we cannot allow to that fact alone the significance insisted on by defendant in argument, vis.'. that it shows it made no use of the wharf. It is shown that the wharfboat was attached also by chains to the piers of the elevated railroad and it is argued this was the only attachment anchoring and keeping it in position. But we cannot adopt that view. The jury might well infer from the use of both attachments that they were both deemed necessary to safe anchorage in a time of extraordinary peril. Besides, the ordinance provides for wharfage if the boat is made fast to the wharf by “anything thereto fastened.” In a broad sense the piers of the elevated railroad, being fastened to the wharf, became in a way. part of the wharf. They were certainly fastened to it and when defendant’s wharfboat was fastened to the piers it came surely within the letter and, possibly, the spirit' of the ordinance. But our decision need not rest on that ground. If defendant in its emergency had cut loose from the wharf and had used no portion of it and none of its appliances or conveniences to hold its wharf-boat in landing, the case would stand on another foot. True it is .that during the flood complete use of the wharf was impossible, but complete use was not necessary. Such a construction would he highly inconvenient; for it would be quite impracticable, as suggested by plaintiff’s counsel, to adjust wharfage dues on a flexible sliding scale with the rise and fall of the Mississippi river.

The question is: Use or no use? “What constitutes such a use of a wharf, dock, or pier as to attach a liability for wharfage depends greatly upon the facts and circumstances of each particular case.” [30 Am. and Eng. Ency. Law (2 Ed.), 497, and see authorities collated in note 6 to the text.]

Take a homely case to illustrate: If A own a stake pin and lariat and if B agree to pay a shilling for the use of the stake pin and lariat in staking out his mustang, and if B fasten his mustang to' the stake pin and lariat, could he escape liability to' A by showing that the tether was slack while the mustang was feeding? or by showing that the beast was hobbled?

The testimony supports the verdict, and the point is ruled against defendant.

Let the judgment be affirmed. It is so ordered.

All concur.