Howell v. Jackson County.

ther concluded, since he made no move, that silence showed consent and that the finding of the commissioners became conclusive on him, hence their client, the county, was in no danger of being mulcted thereafter in damages for the appropriation of his land. There is no escape from this conclusion, because, being learned in the law, they permitted the judgment of the county court to go establishing and opening the road. Having done that, does it lie in the mouth of the county at this late day, when new hands have come to the bellows, to face about and change its view on that question on appeal to this court?

Moreover, if learned counsel now appearing for the county are right in their contention, then the county has the road without paying Webb's damages. If, peradventure, the conscience of the county be pricked in that behalf, a ready remedy is at its door. It can ease its conscience by paying them at any time without our meddling with Howell's judgment for his separate damages, inasmuch as a reversal will not pay Webb. If, as we fear is the case, it is not conscience, but supposed danger from that angle that is behind the point and puts life and mettle into its heels, then, how will that danger be lessened by reversing Howell's judgment? Will reversal here parry the menace? Can the county make Webb interpose, or does it want to make Webb come into the circuit court on Howell's appeal, willy nilly, and claim his own separate damages? Or, absent Webb, are his damages to be awarded him without his having a finger in the pie, a day in court? All those things, we opine, would be new wrinkles in road litigation for which there are no precedents known to us. If he was a bold man who first ate an oyster, as Swift tells, what should we say of a court that added new terrors to road litigation?

(4) Finally, no such point was made below during the trial, or in the motion for a new trial. The circuit court ruled on no such question; ergo we may not.

Howell v. Jackson County.

Attend to the lawmaker's mandate in that behalf: "No exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court." [R. S. 1909, sec. 2081.]

II. Of the failure of the circuit court to find jurisdictional facts and to incorporate an order establishing the road in the judgment.

Although appellant has its road in full and undisputed possession, yet it suggests that it ought not to pay Howell's damages because it fears its title to the road is bad for that the judgment in the circuit court is a straight award of money damages and makes no finding of jurisdictional facts and does not in terms establish a public road. Is that assignment of error well taken? Decidedly not, because:

(1) In the first place, it cannot be contended that the circuit court has no jurisdiction at all in the premises. It must be conceded it had jurisdiction to try the issue of damages and enter judgment thereon. If, now, it also had jurisdiction on Howell's appeal, as appellant contends, to find jurisdictional facts upon which a road could be established and had jurisdiction to establish the road, its jurisdiction to do those additional things would depend on the form of the appeal, as pointed out in the former paragraph and as ordained in Revised Statutes 1909, section 10440, supra. That section provides for two kinds of appeals-one from the damages, the other from the order establishing the road. Let us also concede, only pro hac vice, that Howell's appeal brought up to the circuit court the issues of establishing and opening a road (i. e., the question of road or no road) and for the same turn let it be admitted it was error to make no finding on those issues. With such concessions, made by way of argument, the questions obtrude at once: Was there any exception taken below? Was the question raised to

Howell v. Jackson County.

be ruled nisi? The answer must be, no. This appellant as the record shows got all it wanted from the court below on those scores. Howell was not opposing the road, nor was he seeking to establish the road. He was asking damages for the actual appropriation of his land. That was the sole issue interesting him. In that view of it, the burden was on appellant to show these jurisdictional facts, if on any one. This burden appellant lightly cast off. Moreover, when the judgment was rendered did appellant file a motion in arrest because on the whole record the judgment was erroneous as not responsive to the issues? No. Contra, it rested content with the form of the judgment, took its exception on other questions and raises the point in hand for the first time in this court. If the question here was whether the circuit court had jurisdiction to render any judgment at all, we would have a question of different quality; but unless we are to rule that a motion in arrest no longer serves any purpose in practice whatever, we must hold one was necessary in this case. [Murphy v. Railroad, 228 Mo. 1. c. 85; Stid v. Railroad, 211 Mo. 411, and cases cited; vide, State ex rel. v. Fisher, 230 Mo. 325, arguendo.] And that its absence is fatal to the point.

(2) In the next place, if it be conceded that no motion in arrest was necessary to preserve the point, yet on this record we are forbidden by the statute to reverse the judgment on the point. This is so because the circuit court did not rule on any such question, and, absent its decision, we can make none. [Vide the statute quoted supra, R. S. 1909, sec. 2081.]

(3) In the next place, this record shows conclusively that no appeal was taken on the issue of road or no road but only on the issue of damages. [Bennett v. Woody, 137 Mo. 377.] Therefore the judgment of the county court establishing and opening the road was in no sense drawn in question or put in jeopardy by the appeal, but was left behind a final, operative,

Howell v. Jackson County.

self-enforcing judgment, free from the vicissitudes of the event of the appeal and not a whit depending on the circuit court's finding jurisdictional facts on which the location of a public road depends. Why should the circuit court go out of its way to do over again, by a side stroke, what had already been well and finally done in the county court? The maxim is: A court has nothing to do with what is not before it.

Moreover, not only was such the trial theory and therefore the preclusive theory on appeal, according to the settled doctrine of this court, but the affidavit for appeal clearly shows, when fairly read, that the appeal was taken only from the verdict and judgment for damages and costs. That the word "merits" was used in the affidavit of appeal is due to the statutory relation between appeals from justices' courts and from county court, and the context shows the merits meant were those on the issue of damages. It results that when the county court found the road was of sufficient public utility to warrant its establishment and opening at the expense of the county and (closer home) when it went on and opened it and took possession and when (still closer home) Howell's appeal did not bring up the issues of road or no road, but only that of his damages-we say, when all these things happened, as they did, then the county by its own election became irrevocably bound to pay the damages whenever they were set at rest by being legally awarded by an adjudication on his appeal. [Forsyth v. Heege, 61 Mo. App. 277.] The point is disallowed to appellant as without substance.

III. Of instruction A.

With foregoing questions at rest, we confront the main contention in the case, viz., that instruction A overlapped on the elements of damage and permitted recovery for the cost of fencing as a separate and spe

262M027

Howell v. Jackson County.

cific item. We are of opinion this assignment is well laid, because:

(1) While a strained construction of the language of an instruction is not a sensible device for administering justice, neither is a loose or illogical construction. As put by Professor Gray: "A loose vocabulary is the fruitful mother of evils;" and, we may add that a loose construction of loose language is the nursing father of many more. Giving the language of the instruction a sensible interpretation, it is plain that the jury were told to consider the cost of building the necessary fences along the road and the damage to the whole tract of land of which that taken for the road forms a part, and they were told that from the "sum" of these, together with the value of the land taken, they were to deduct the benefits, if any, peculiar, etc. That meaning is a fair and legitimate one, nay, the only one shining on the very face of the instruction itself. There can be no two ways about that. If now, it be the law (as we shall presently see it is) that necessary fencing is an element, to be sure, but is only an integral element of the damages to the land, and submerges itself into such damages, then the instruction was erroneous; for the jury under instruction A would assess as damages (1) the value of the land taken and improvements, (2) next, the cost of building the necessary fence, (3) next, the damage, if any, to the whole tract by reason of the road running through it, and would add one item to the other, thereby making a "sum," and from that sum it would deduct the benefits peculiar to the tract, etc.

The general rule for assessing damages for taking lands for a public highway and railroads is not in doubt. It is (put in small compass) the value of the land taken and the damage, if any, to the tract of which it forms a part, from which must be deducted the benefits, if any, peculiar to such tract arising from establishing the road. [McReynolds v. Railroad, 110 Mo.