Patten v. Weightman

• Decision Date: 31 January 1873
• Citation: 51 Mo. 432
• Parties: PATTEN and DUNBAR Respondents, v. JNO. WEIGHTMAN, Appellant.
• Court: Missouri Supreme Court

51 Mo. 432

PATTEN and DUNBAR Respondents,

v.JNO. WEIGHTMAN, Appellant.

Supreme Court of Missouri.

January Term, 1873.

Appeal from the Henry Court of Common Pleas.

Pickerell & Blackford, and McBeth & Price, for Appellant.

I. It was only necessary for the defendant to look to the order of the County Court directing him to open said road. (Butler vs. Barr, et al., 18 Mo., 357; Walker vs. Likens, et al., 24 Mo., 298.)

II. The instructions are inconsistent, and this inconsistency is error. (Wood vs. St. Bt. Fleetwood, 19 Mo., 529; Schneer vs. Lemp, 17 Mo., 142.)

F. P. Wright, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

This was an action of trespass in which it was alleged that defendant wrongfully and without leave entered upon lands in which plaintiffs were jointly interested, and upon which were growing crops belonging to them, and tore down and took away a portion of the fence enclosing the premises, by which, stock grazing and herding on the unenclosed lands adjoining, entered upon and destroyed the crops growing thereon, to the plaintiffs damage, &c.

Defendant justified on the ground that he was acting as road overseer, and averred that he entered and tore away the fence in obedience to an order of the County Court, which directed him to open the road running through the plaintiff's premises and remove obstructions which might be found in the same.

There was a trial before a jury, and verdict for plaintiffs. The evidence contained in the bill of exceptions shows that the road ran diagonally across the plaintiff's field, that in the field were about thirty acres of corn, several acres of oats cut and shocked, and one acre of potatoes besides garden vegetables. That plaintiffs were away from home at the time the fence was removed, that no notice was ever given them of an intention to make such removal, and that in consequence thereof, when the fence was torn down and removed on each side of the field, the stock running at large went in the field and destroyed nearly the whole crop.

The instructions given by the court, when taken together, do not appear objectionable. The substance of plaintiff's instructions was that before defendant could justify his act it must be shown that there was an order of the County Court establishing the road and directing the defendant to open the same; and that defendant had no legal right to throw down the fences of plaintiffs and expose their growing crops, unless plaintiffs had been duly notified that the road had been established, and had a reasonable time, not to exceed six months, within which to remove their crops, &c.

For the defendant the Court instructed the jury that an order of the County Court directing the road overseer to open any road in his road district, will protect him from an action of trespass and damages instituted by any one through whose land said road may be located, and the jury cannot inquire into the regularity of the County Court's proceedings in locating said road.

And of its own motion the Court declared the law to be, that if the County Court had by an order duly entered of record established the road and directed the defendant as a road overseer to open the same, running through the plaintiff's land, then the verdict should be for the defendant.

These instructions were undoubtedly correct. Where the County Court has jurisdiction of the subject matter of opening roads, its order will generally be a protection to an overseer acting under its command. Previous irregularities cannot affect the overseer, for it is not his business to examine and inquire to see whether everything has been done in a regular...