Petersen v. Beha

• Decision Date: 12 March 1901
• Citation: 161 Mo. 513,62 S.W. 462
• Parties: PETERSEN v. BEHA.
• Court: Missouri Supreme Court

62 S.W. 462

161 Mo. 513

PETERSEN v. BEHA.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

INJUNCTION — OBSTRUCTING HIGHWAY — JUDGMENT — DESCRIPTION — INDEFINITENESS — LOCATION OF HIGHWAY — USER.

1. A judgment restraining defendant from obstructing a highway, which described it as a 20-foot road, beginning at a point 10 or 12 rods north of a designated place, and running thence easterly, must be reversed for indefiniteness.

2. Where a strip of land through defendant's farm was laid out by the commissioners in 1873 as a highway, and the timber was cut down, and the road graded, and used by the public for 23 years, the fact that there was an error in the commissioners' report in the call of the beginning of the road did not prevent plaintiff from maintaining an action to restrain defendant from obstructing the road.

3. Where a strip of land was laid out by the commissioners through defendant's farm as a highway, and it was graded and used by the public as such for 23 years, the fact that the call of the beginning of the road in the commissioners' report was different from the point where the road was actually graded did not change the location of the road to the call in the commissioners' report.

Appeal from circuit court, Callaway county; John A. Hockaday, Judge.

Action by John Petersen against George Beha. From a judgment in favor of plaintiff, defendant appeals. Reversed.

W. S. Pope, for appellant. D. P. Bailey, for respondent.

ROBINSON, J.

For the purpose of obtaining a mandatory order against defendant to remove an obstruction placed by him across a private road, and to restrain its further obstruction, plaintiff filed with the circuit court of Callaway county the following petition: "Plaintiff states: That he is, and has been for more than twenty-three years last past, the owner and in possession of the following described lands lying and being in the county of Callaway and state of Missouri, to wit: `10 acres, being the NW. corner of the NW. qr. of the SE. qr.; and also 10 acres, being the SE. corner of NE. qr. of the SW. qr., — all in section 33, township 45, range 11 west.' That he has occupied said land as a homestead for more than twenty-three years last past, and during all that period of time there has not been, nor is there now, any public road running through or touching said lands. Plaintiff states: That the county court of Callaway county did at its December term, 1873, upon the petition of this plaintiff and other landowners, attempt to locate and establish a private road 20 feet in width commencing 8 rods north of the center of section 33, township 45, range 11; thence SE. intersecting the line between NW. SE. and SW. NE.; thence east with said line to a point crossing the line running north between the SE. NE. and the SW. NE. about 20 yards north of the northeast corner of the NW. SE.; thence to and crossing the line between the SE. NE. and NE. SE., about 40 yards east of the corner last named; thence bearing SE. to and crossing the section line between sections 33 and 34, about 60 yards west of the NE. corner of the NE. SE.; thence to and intersecting Turkey Creek road about 100 yards west of the line between NW. SW. and the SW. NE. of section 34, township 45, range 11. That commissioners were duly appointed by said county court to so work out said road and assess damages to landowners over which said road would pass. That said commissioners, in attempting to work out said road, did, about the month of December, 1873, view the lands touching said road, and did actually make out said road by blazing trees along the supposed line of the same, and did point out the same to plaintiff, and did assess damages to one Lewis Hill in the sum of $15.00, and did point out to the said Hill the line of such road as indicated by them as aforesaid. That plaintiff then duly paid to said Hill said sum of $15.00. That said Hill was at that time the owner of the SW. qr. of the NE. qr. of said section 33, over which said road was actually marked out as aforesaid. That said commissioners actually marked out and blazed said road 20 feet wide as follows, to wit, beginning at point ten or twelve rods north of the center of said section 33, and running thence easterly a distance of about 22 rods without touching plaintiff's said lands to a point on the north side of a branch, then to connect plaintiff's land with said road; beginning again on the line between the north and south halves of said section 33, twenty-two rods and 8 links from the center of said section; thence north ten rods to the point aforesaid north of said branch; thence in an easterly direction following the meanderings of said branch first along the north side about 31 rods; thence across the branch and along the south side thereof 33 rods and 9 links to a point 2 rods north of the SE. corner of the SW. qr. of the NE. qr. of said section 33; thence along the south side of said branch 48 rods; then across the branch and along the north side thereof 27 rods and 3 links; then across the branch and along the south side thereof 20 rods to the section line intersecting said line 12 rods south of the NE. corner of the NE. qr. of the SE qr. of said section 33; thence along the south side of...