Johnson v. Rasmus
| Decision Date | 29 November 1911 |
| Citation | 141 S.W. 590,237 Mo. 586 |
| Parties | WILLIAM F. JOHNSON et al. v. CHRIS RASMUS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cooper Circuit Court. -- Hon. Samuel Davis, Special Judge.
Reversed.
John Cosgrove and Daniel W. Cosgrove for appellant.
Williams & Williams for respondent.
The Statute of Limitations has no application. It does not run against the State and gives no title to the occupier of a public road, no matter how long the occupation may be continued. Section 9432, R. S. 1899, has no reference to a regularly and legally established road, but only to roads where there were irregularities in the proceedings to establish and open them and where the rights of the public are acquired by user. Such roads and the section may be lost by nonuser. Otherwise as to roads the title to which has been acquired by the public through condemnation or other regular proceedings. State ex rel. v. Busse, 152 Mo.App 466. (2) There is no estoppel in this case. Nothing said or done by Baker caused the defendant to close up the road. He undertook, by legal proceedings, to obtain the right to do so and was not influenced in his action by the conduct of the present or former owners of the land. Acton v Dolley, 74 Mo. 63; Elliott on Roads and Streets (2 Ed.) sec. 884.
This is an action in equity to enjoin defendant from the alleged obstruction of a public road, known as the Boonville and Pisgah road, which it is claimed is necessary for ingress and egress to the farm now owned by complainants, in Cooper county, Missouri. Defendant's answer admits the former existence of the road, but sets up, that on the 2d of February, 1891, the county court of Cooper county ordered it vacated from its beginning point to the place of its junction with the Boonville and Tipton road, and in lieu thereof ordered another road to be constructed so as to connect the beginning point of the old road in a straight line, running east and west, with the Boonville and Tipton road. The answer further states, that from said date until the filing of this suit the old Boonville and Pisgah road had been entirely abandoned by the county and the traveling public, except a short stub running south from the farm now owned by plaintiffs and the common beginning point of the old and new road; that at the time of the vacation of the old road and the construction of the new, defendant was a tenant on the farm now owned by plaintiffs; that the then owner of that farm acquiesced in the action of the county court in changing the road as above stated; that defendant had spent a large sum of money in enclosing, improving and cultivating his lands over which the old road ran, and had erected improvements near its former site; that the county had wholly abandoned the old road and had continuously worked and improved the substituted road; that plaintiffs purchased their farm in 1903 with full knowledge of all of said proceedings and of the abandonment of said highway, and after a lapse of more than ten years, and were guilty of laches by setting up the claim made in their present suit.
On the trial the proceedings of the county court in reference to the change of this road were introduced in evidence, showing that the change had been made by order of that tribunal, and that the old road had been declared to be vacated. There was also oral testimony showing that thereafter the old road had been entirely abandoned by the traveling public as well as the county authorities, and in lieu thereof the substituted road had been recognized and used as a public highway continuously; that it was a much better road-bed for traveling purposes and furnished a closer connection between the common beginning point of the two roads and the Boonville and Tipton road; that subsequent to the vacation of the old road, this defendant erected feed pens and wells so near the portion of the old road on his lands that they would have to be removed in case it was reopened; that he made the application to the county court to turn the old road into the new road; that he and the consenting property-owner who signed the application owned all of the land over which the old road ran, except about forty acres near its former junction with the Boonville and Tipton road, and except the farm now owned by plaintiffs but then owned by the lessor of defendant; that said lessor was informed by defendant of his action in procuring the new road and acquiesced therein. There was evidence tending to show that the rental value of the farm now owned by plaintiffs might be 75 cents an acre less than it would have been if the old road had not been changed.
There was a decree awarding plaintiffs nominal damages and perpetually enjoining defendant from the maintenance of fences and other improvements with which he had enclosed the road after its vacation and abandonment by the public. From this judgment defendant appealed.
OPINION.I. The theory on which the learned trial judge rendered his decree perpetually enjoining defendant was, that the entire proceedings in the county court looking to the change of the old Boonville and Pisgah road into the new road and the partial vacation of the old road were absolutely void, and hence no bar to this suit; and, further, that the defense of the abandonment of said road by the county authorities and by the traveling public from the time of said proceedings up to the filing of this suit could not be interposed.
Without stopping to determine the efficacy of the proceedings in the county court instituted by defendant under the special statute permitting land owners who desired to cultivate a portion of their land over which a road runs to turn the course of that road to another road to be established over the land of the petitioner and a consenting land owner (R. S. 1909, sec. 10,444; R. S. 1899, sec. 9447; R. S. 1889, sec. 7818; Howe v. Callaway, 119 Mo.App 251, 256, 95 S.W. 974), we will...
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