Main v. Nash

• Citation: 212 Mo. App. 689,245 S.W. 581
• Decision Date: 06 December 1922
• Docket Number: No. 3144.,3144.
• Parties: MAIN v. NASH et al.
• Court: Court of Appeal of Missouri (US)

245 S.W. 581

212 Mo. App. 689

MAIN v. NASH et al.

No. 3144.

Springfield Court of Appeals. Missouri.

December 6, 1922.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Action for injunction by Lewis P. Main against Addle G. Nash and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

Lewis P. Main, of St. Joseph, for appellant.

COX, P. J.

Action by injunction to prevent the closing of an alleged public road. Issues found for defendants, and appellant's bill dismissed, and he has appellant's

The Plaintiff is the owner of the E. ½ of the N. E. ¼ Sec. 33, Tp. 31, R. 18, in Webster county. Defendant Addie Nash is the owner and defendant Graves the tenant in possession of the N. W. ¼ Sec. 34, Tp. 21 E. 18. The two 40-acre tracts now owned by defendant Nash adjoin the land of plaintiff on the east, and plaintiff contends that a public road runs cast from his land between the two 40-acre tracts of defendant, a part being on each 40, and connected with a north and south public road on the east side of defendants' land known as the Lebanon road, and that defendants are attempting to close this road leading from plaintiff's land to the Lebanon road, and seeks to enjoin them from doter so.

This road is a cul-de-sac. At the closed end of this road is a gate through which the travelers upon this road pass, and then go on across plaintiff's land and over it to another road, called the Buffalo road. The road in question and plaintiff's farm are a short distance from the town of Marshfield., and, if the road in question is closed, plaintiff will have no practical way to roach Marshfield. It is conceded that file road in question was not established by the county court, but if it is now a nubile road its establishment as such must depend upon dedication and user. There is very little conflict in the testimony, and we find the facto to be as follows:

Until a short time ago the two 40-acre tracts between which the road in controversy runs was owned by different parties, and were unenclosed until 15 or 18 years ago. The land now owned by plaintiff was Improved, and there was a neighborhood road that ran from the house on plaintiff's land across a part of each of the two 40-acre tracts aforesaid by which plaintiff had access to the Lebanon road and thence to Marshfield. Some 15 or 18 years ago, the then owners of the two 40-acre tracts fenced them, and in doing so left a lane on the line between them 25 to 30 feet wide. The man who owned and fenced the north 40 testified that at that time his father owned the land now owned by plaintiff, and that he left his part of the lane so his father could have an outlet. The man that fenced the south 40 testified that he just set his fence back 7 or 8 feet from the line to be sire he did not get over the line. The lane has remained there to the present time, and has been traveled and used as a road by plaintiff and by all persons who had occasion to come to his place. The public, when desirous of passing from the Lebanon road across to the Buffalo road, would lass through Ibis lane and through the gates on plaintiff's farm to reach the Buffalo read. Persons hauling sand and gravel...