
    WILKERSON vs. BUCHANAN COUNTY.
    1. When the owner of land upon which a State load is located, executes a grant, as required by the statute, the-public then requires a right of way over it.
    2, Upon the report of the commissioners or jury of the damage assessed in favor of the owner of land upon which a State road is located, he acquires a vested right to the amount, and is entitled to a warrant therefor, whether the road ever be actually opened or not.
    APPEAL FROM BUCHANAN CIRCUIT COURT,
    STATEMENT OF THE CASE.
    By an act of the general assembly of the State of Missouri, approved January 14th, 1845, a State road was established from Weston, in PWte count, to St. Joseph, in Buchanan couuty, the route of which passed over the land of the appellant.
    The commissioners, who marked out the road, awarded the appellant no damages, and at the next term of the county court, to which the report of the commissioners was made, he filed his objections to their assessment, and the county court thereupon ordeied the sheriff to summon a jury of six disinterested householders of the county to examine the ground and reassess the damages. At the next term of the county court, the jury reported that the amoun t assessed by them in favor of the appellant, was two hundred and thirty-seven dollars and fifty cents, whereupon the appellant moved the county court to issue their warrant upon the county treasurer, for the amount of his damages and costs. The county court refused to do so ; the appellant filed a petition in the circuit court for a mandamus, and a writ issued commanding the county court to issue the warrant, or show cause why they would not. The causes shown by the county court in their return to the writ, were “ that the road had never been opened, or ordered to be opened ; that the same was vacated by an act of the legislature at its last session ; that all the proceedings of the county court for the assessment of the damages, and the proceedings of the sheriff and jury in relation to the same were illegal and void, and that the said Ross Wilkerson had never sustained any injury by reason of the location of said road.” To this return the appellant demurred, which was sustained as to the petition, and overruled as to the return. To this opinion of the court the appellant excepted, and to reverse the judgment has appealed to this court.
    Gardenhire, for appellant.
    1st. The facts disclosed in the petition give the appellant a right to the amount issued in his favor by the jury.
    1st. The settled and fundamental doctrine is, that government has no right to take private property for public purposes, without giving a just compensation. 2 Kent 339; 2 Johns Ch. Rep., 416 ; Henderson vs. Mayor &c. of New Orleans, 5 Miller Louis Rep,,416 ; Thompson vs. Grand Gulf, R. R., and Banking Company, 3 Howard, 240; Lyon vs. Jerome, 26 Wendell, 497 ; 12 Serg. §■ Rawles, 366, 372 ; 20 John’s Rep., 745.
    2d. The act establishing the road, provides that the “ commissioners, the county courts, and those who may be liable to work on said road, shall in all respects be governed by the general road law now (then) in existence prescribing the mode of opening State roads, approved February 12, 1839. ” Private acts of 1845, 320,
    3d. The 17th, 18th, and 19th sections of the act af 1839, provide for the assessment of damages, and prescribe the course to be pursued by the .owner of land, in case he feels himself agrieved by the assessment of the commissioners. Acts 1838-’9 107, 108.
    2d. The remedy of the appellant is by mandamus. Treat vs. Middleton, 8 Conn- Rep., 243; Bloodgood vs. Mohawk and Hudson Railroad Company, 18 Wendell, p. 18 ; Davis Carpenter vs. the county commissioners of the county of Bristol, 21 Pick., 258 ; Harrington vs. county commissioners of Berkshire, 22 Pick. 268.
    3d. The redress to which the appellant is entitled, consists in a just compensation for his property, independent of the advantages or disadvantages of the road.
    
    1st. The just compensation to the owner for taking his property for public use, without his consent, means the actual value of the property in money, without any detention for estimated profit or advantage accruing to the owner from the public use of his property, speculative advantages or disadvantages, independent of the intrinsic value of the property, from the improvement, are a matter of set-off against each other, and do not effect the dry claim for the intrinsic value of the property taken. ” 2 Kent 339, 40, 41, and notes 9 Dana Rep., 114.
    4th, The demurrer ought to have been sustained as to the return.
    
      1st. When a highway is once completely established, and the damages of the land once settled by the modes pointed out by law, the right of the land owner to his damages becomes vested, and is not. effected by the subsequent discontinuance before the land is entered upon. Harrington vs. county commissioners of Berkshire, 22 Pick. 263 ; Westbrooke vs. North, 2 Green, 179 ; Thompson vs. Coffin, 4 N. Hamp., 517 ; 2 Metcalfe, 559.
    2d. The third cause for not issuing the warrant is too general. It should have pointed out in what particular the proceedings in assessing the damages were “ illegal and void. ”
    3d. Whether the appellant was injured wa3 fox the jury, not the county court to determine. Acts of 1838-’9, sections 17,18 and 19.
    Stringfellow, for appellee.
    1st. The answer of the defendant shows that the road was never opened ; that thus the plaintiff was never injured, and that the road had been vacated by an act of the legislature, so that he could never be injured, and therefore had no right to the damages assessed by the jury. Private acts 1844, p. 310 ; 1846-’7, p, 337-’8.
    2d. The report of the jury is illegal, and their finding void. It was their duty to find the advantages as well as the damages to the plaintiff. They however enquired only info the disadvantages and damages. 9 Mass. R. 388 ; 2 Mass, 489 ; 1 Pick. 418.
    3d The county court hasr exclusive power to audit and settle demands against their county, and if at the time a demand is presented, the same ought not to be allowed, it is their duly to reject the same. Revised Code, title courts.
   Napton, judge,

delivered the opinion of the court.

One of the objections taken in the return to the conditional mandamus, is, that the jury did not take into consideration the advantages of the road to the petitioner Wilkerson, as well as its disadvantages. The order of the county court upon Wilkerson’s complaining of the assessment by the commissioners, was “that a jury of six disinterested householders of Buchanan county, be summoned by the sheriff of said county, to assess the damages or advantages of said road to the said Ross Wilkerson, and make a report according to law,” The jury reported “that after taking into consideration the damages and disadvantages of said road to the said complainant, and find the damages and disadvantages of said road on the said Ross Wilkerson’s land, to be $237 50, ” The statute requires the commissioners or the jury, in assessing the damages, to take into consideration the advantages as well as the disadvantages of the road to the person objecting. It was the duty of the sheriff to have the jury sworn, and we will presume that the law was complied with in this particular. It was the duty of the jury, in complying with the order of the county court, to consider both the advantages and the disadvantages of the road to Wilkerson. The return of the jury in this '¡case, like the order of the court, is not drawn up with technical formality ; but it does not lead to an inference that they disregarded their oaths, or failed to comply with the law. They do not say that they took into consideration the advantages of the road to Wilkerson, nor that they failed to do so, and the presumption is that they did their duty. If the return was considered equivocal on this point, the county court had it in their power to ascertain the fact and correct the mistake, if any had been committed. The proceedings could have been set aside, and the jury again charged with the duty of ascertaining the damages. It was not Wilkerson’s duty to object to the sufficiency of the return, if he was satisfied. But the return was received, and no objections are made to it on this ground.

It is highly probable that the term disadvantages, which the jury use in their report, was a clerical blunder. But whether this was so or not could have been easily ascertained by the court to whom the return was made.

The question comes up, it will be observed on a demurrer to the answer of the county court. The answer does not specifically point out any such objection as the one we have just noticed, but merely states that the proceedings in relation to this road, including the assessment and report of the jury, were all illegal ard void. In what respects they were illegal, is not stated. This aseertion would seem to be merely formal, and not deserving any particular examination. It is obvious that the real defence of the county court, and the only one relied upon, was !<that the said road mentioned in said petition, had never been opened, or ordered to be opened, and that the same was vacated by an act of the legislature of this State, passed at the last session. ” This answer was filed on the first day of October, 1847. The report of the commissioners was received, and the road ordered to be opened on the 8th of July, 1845, as appears from the exhibits accompanying the petition for a mandamus. At the August term, 1845, of the county court, a jury was ordered to assess the damages done Wilkerson. Their report waa made at the November term following. So much of this answer as relates to the act of the legislature, passed in the winter of 1846-7, nearly two years after the assessment of the damages, may be considered ag totally irrelevant to the ease. It will not be contended that if the road had been established and opened, the proprietor of the land over which the way passed, would have lost his right to damages by reason of the discontinuance of the highway. If a discontinuance at the end of two years would have this effect, then a discontinuance at the end of fifty years would have the same effect, and this cannot be.

The only portion of the defence of the county court which presents any real difficulty, is the fact relied on by them that the road never was opened, and consequently that Wilkerson has not sustained any actual damage. This presents the question, as to the period of time, when the right to damages vests in the proprietor of the land. Does this right vest when the damages are assessed by the commissioners, and -reported to the county court, or when the jury return their report, and that report is received or not set aside for informality or illegality, or must the proprietor wait until the road is actually opened ? The act requires that the commissioners shall take a grant of the right of way from every owner through whose land the route of the road is located, and then provides that such grants shall vest in the public a right of way over a quantity of land on each side of the centre of the road, at least thirty feet in width. The commissioners are also directed to report the damages, and when any person is dissatisfied with their report, the county court is authorized to have a jury summoned to re-assess such damages, and if the damages found by the jury exceed those found by the commissioners, the court are directed “ to issue a warrant on the county treasury for the amount of damages and costs. It would seem to be quite clear that the legislature intended the right of way to vest in the public, upon the execution of the grant directed to be taken by the commissioners, and the right to the damages to be vested in the proprietor whenever reported by the commissioners or by the jury. For the court upon this event is directed to issue a warrant. There is no direction that the court shall defer the warrant until the road is opened. The legislature evidently did not contemplate a case of this kind. They did not anticipate that the people of a district would apply to them for a road, have commissioners appointed to lay out the same, and after this had been done and juries summoned to assess the damages, the courts of the counties would then decline any further action, and wait until a succeeding legislature would repeal the law. The claim of the petitioner is certainly founded on summum jus, and it looks hard that the county should be compelled to pay for a thing which is of no use to them ; a right of way which they do not intend to use. But this is like the case of any other person who purchases an anticle for which he discovers, after he has bought, that he has no use whatever. It is an in-discrete bargain, but I do not know that the courts have any power to relieve him from it. He is thrown upon the generosity of the person with whom the contract has been made. Upon the return or report of the jury in favor of the petioner, Wilkerson, the public acquired a right of way over his land, and he acquired a vested right to the compensation agreed upon ; but if the public did not see fit to avail themselves of this right, but their agents concluded itbest to discontinue the highway, this does not effect the rights of the petitioner. When he demanded a jury, and the court ordered one, the statute made him responsible for the costs in the event that the jury gave him less damages than had been awarded by the commissioners. Would he have been relieved from the payment of these costs had this been the result of their finding in this case, because the county court saw fit not to have the road opened ? Would such a defence have availed him, when an execution.was levied on his property to collect these costs ? Clearly not. If, then, the verdict fixes his responsibility in case it is against him, the county must be equally bound when the verdict is in his favor.

We observe that this question has been repeatedly decided by the courts of New Hampshire and Massachusetts. The proceedings in those States, preparatory to the establishment of a public highway, may be somewhat different from those prescribed in our statutes. But the cases distinctly recognise the principle that “by the judgment establishing and locating the highway, before any act done towards fitting it for use, the rights of the parties are fixed and vested,55 and the public acquire a right to the public casement as long as it shall be their pleasure to use it. And the right of the owner of the land over which it passes, to his compensation, is complete. ” 2 Met. 519 ; Hampton vs. Coffin, 4 N. H. 517.

The judgment of the circuit court will be reversed, and a mandamus awarded.  