Sikes v. St. Louis & S. F. R. Co.

• Decision Date: 19 November 1907
• Citation: 127 Mo. App. 326,105 S.W. 700
• Court: Missouri Court of Appeals
• Parties: SIKES et al. v. ST. LOUIS & S. F. R. CO. et al.

105 S.W. 700

127 Mo. A. 326

SIKES et al. v. ST. LOUIS & S. F. R. CO. et al.

St. Louis Court of Appeals. Missouri.

November 19, 1907.

1. RAILROADS — HIGHWAYS — DUTY TO FENCE CROSSINGS.

Railroads are not required to fence across public highways de facto or de jure.

2. HIGHWAYS—ESTABLISHMENT BY PRESCRIPTION—EVIDENCE.

In the absence of statutory provision, evidence that a wagon road 1½ miles in length, running from an ancient highway to the woods, was traveled by the public for all purposes, one portion having been used for 50 years and another portion for 15 years, and on which a residence had been built, is sufficient to constitute a road by prescription, though the adjoining landowners had built gates across the road where it crossed a railroad to prevent stock from wandering onto the track.

3. STATUTES—CONSTRUCTION—INTENT.

In the passage of laws the Legislature is presumed to know the existing state of the laws relating to subjects with which they deal at the time they act on a given question, and therefore are deemed to have dealt with the matter in the light of the state of the laws then existing.

4. HIGHWAYS—ESTABLISHMENT BY PRESCRIPTION—EFFECT OF SUBSEQUENT STATUTE.

On an issue as to whether a road was a public highway, the fact that it had never been worked by the county, as required by section 9694, Rev. St. 1899 [Ann. St. 1906, p. 4421], was immaterial where the road had been established by prescription before the passage of such act.

5. RAILROADS — OPERATION — FENCES — CHARACTER OF HIGHWAY.

Rev. St. 1899, § 9694 [Ann. St. 1906, p. 4421], provides that no lapse of time shall divest the owner of his title to the land, unless, in addition to the use of the road by the public for 10 years, public money or labor has been expended thereon for such period. Held, on the issue whether a railroad should fence a wagon road which the evidence showed had been used for more than 10 years, but no money or labor expended thereon, that the main purpose of the statute being the prevention of criminal prosecutions for obstructing such roads, a railroad company, notwithstanding the statute, had a right to consider the road a public one, and hence was not liable for injuries to animals caused by not fencing across such road.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by F. M. Sikes and others against the St. Louis & San Francisco Railroad Company and others for double damages for killing animals. From a judgment for plaintiffs, defendants appeal. Reversed.

Moses Whybark and L. F. Parker, for appellants. Russell & Deal, for respondents.

NORTONI, J.

This is a suit for double damages under the railroad fence statute. Section 1105, Rev. St. 1899 [Ann. St. 1906, p. 945]. The statute referred to requires the companies to erect and maintain lawful fences along the sides of their road for the purpose of preventing animals from going upon the tracks. It is provided therein that double the value of the animals killed by reason of the railroad's failure to fence may be recovered. Plaintiffs suffered the loss of several horses and mules, all of which entered upon the track and were killed by defendant's locomotive engine where a wagon road crosses the railroad tracks. In the circuit court the plaintiffs prevailed, and recovered a verdict assessing their damages at $450. This amount being doubled by the court on motion, as is the practice, judgment was entered in their favor for $900 and defendant appealed. The defendant insists this judgment should be reversed for the reason the animals entered upon the track and were killed upon the crossing of a public road within the meaning of the adjudicated law, and therefore no liability attaches to it on account of such killing, for the reason the defendant is neither required nor permitted to erect fences at the crossing of public roads. Plaintiffs' counsel concedes the familiar law proposition invoked by defendant, but insists it has no application to the facts in proof for the reason the wagon road on the crossing of which the animals entered and were killed, was not a public road within the meaning of the law. Plaintiffs maintained in the circuit court, and argue here, that the road in question is nothing more than a private way, subserving the convenience of a few farmers, and therefore the defendants were not justified in leaving the space occupied by it unfenced as the crossing of a public highway. The sole question presented for decision therefore is: Was the road involved a public road either de jure or de facto? If it was either of these, the defendant was under no obligation to fence the same, and plaintiffs cannot recover. All of the proof disclosed, in fact, it is conceded for that matter, that the animals entered upon defendants' track and were killed upon the road crossing. In order to ascertain the truth with respect to whether or not this road is a highway, either de jure or de facto, it is necessary to examine the evidence in that behalf.

The relevant facts are as follows: The road in question, as it now stands, is about 1½ miles in length. About one mile of this, the portion east of the railroad, has been a road for about 50 years. About one-half mile of it, that portion west of the railroad, has been used as a road for about 15 years. The road runs from Kingshighway on the east, due west, through a lane about 25 feet wide, to the woods in what was formerly swamps. Kingshighway above referred to is a public road running from the city of Cape Girardeau to the city of New Madrid. It is said to be an ancient thoroughfare established during the period when the king of Spain exercised sovereignty here. It seems to be about 1½ miles west of Kingshighway to the timber and what was probably a swamp before the country was drained. This territory on the west of Kingshighway and east of the timber was settled and converted into farms many years ago. The country occupied by the farms was prairie land known as "Big Prairie," and it was important that the adjacent proprietors and others should have a way of ingress and egress to and from the timber lands mentioned for the purpose of hauling wood, rails, etc., as well as a way for stock to pass back and forth from the range located there. In view of these facts, about 50 years ago the adjacent proprietors opened the lane mentioned from Kingshighway west to the woods, which woods were then about where the railroad now runs. That portion of the road as far west as the railroad has been used by the public about 50 years. The senior Mr. Sikes testified that he passed over the same to school more than 40 years ago. One of his witnesses testified to having aided his father haul lumber over the road nearly 50 years ago. The evidence shows that the road or lane is one-half on the lands of one of the adjoining proprietors and one-half on the lands of the other; or, in other words, the land line dividing the neighboring farms is the center of the lane or road. At the point where the animals entered and were killed, one-half of the road traverses the lands and adjacent to the line of one of the plaintiffs, the elder Mr. Sikes, who is the father of his coplaintiff, and the other one-half of the road is adjacent to the line and on the lands of his neighbor, Mr. Hunter. There has never been any public money expended by the county upon the road, nor has the road overseer ever expended any public labor thereon. Nevertheless the road has at all times since its origin been open to the public travel, as given in evidence by Mr. Sikes and all of the witnesses who had occasion to speak on the subject. The neighbors one and all, members of the general public, and every person who so desired passed over the road leading from Kingshighway to the timber, on foot, horseback, or in wagons, whenever occasion required. Cattle, horses, and other animals passed back and forth and were driven to and fro over the same for 50 years without let or hindrance or without question from any source, and, in fact, one residence, at least, the one on the Hunter farm nearest the railroad and now occupied by Mr. Cook, was built many years ago facing this road, and within about 50 feet of it. The defendant company constructed its railroad about four or five years since. The railroad runs north and south, parallel with and about one mile west of Kingshighway, at which point it crosses the wagon road at right angles. When the railroad was built, a regular public road crossing was constructed where the road crosses, and the usual printed sign of "Railroad Crossing" put up thereat. Cattle guards and the usual wing fences were placed at either side of the crossing, and the people, one and all, continued to use the road without interruption as before, except the plaintiff and a neighbor soon thereafter erected a gate across the wagon road about two feet west of the west line of the railroad right of way. The purpose of this gate was to prevent stock, running at large in the timber, from passing upon the railroad track. The gate was not locked, and persons passing over the road could open and close the same if they so desired. The result was it stood open a large part of the time, as it was when the plaintiffs' animals were killed. As said above, that portion of the road from the railroad east to Kingshighway has been used by the public for about 50 years. The evidence shows that portion of the road from the railroad west to the woods, about one-half mile in length, to have been placed there about 15 years since; the proof being that, as the adjacent proprietors cleared up the woodland westward from about where the railroad now runs and converted it into fields, they extended the lane and the road therein further west. Precisely as above stated with respect to the portion east of the railroad this extension was at all times open to public travel, and no public money or labor was expended thereon. Plaintiffs' animals came upon the...