"And now comes Charles G. Searcy, the plaintiff in the above-entitled cause, by his attorney, and in this, his first amended petition therein, states the facts following constituting his cause of action against the defendants in said cause, to wit:
"That before and during all the times mentioned herein he was, and ever since has been, and now is, the owner in fee and in possession of the following described lands, situate in Clay county, Missouri, to wit: The west half of the northwest quarter of section No. 15, in township No. 52, of range No. 31; the east half of the northeast quarter of section No. 16, in said township and range, except the parts thereof, embracing five acres, cut off by the right of way of the Hannibal and St. Joseph Railroad Company, and occupied by said railroad company as right of way, and ten acres off the north end of the west half of the southwest quarter of section No. 16 in said township and range — the whole of said lands so owned and possessed by plaintiff comprising 165 acres. That said defendants Abram W. Gross, George W. Sexton, and John C. Cooper were, at the time of the institution of this suit and the service of summons herein on them, and ever since have been, and now are, justices of the county court of Clay county, Missouri, duly commissioned, qualified, and acting as such. That said defendant Daniel J. Mathews was at the time of the institution of this suit and the service of summons herein upon him road overseer of road district No. 9 in township No. 31 in Clay county, Missouri, duly appointed, qualified, and acting as such. That said defendant Joseph Carroll was at the time of the institution of this suit and the service of summons herein upon him road overseer of road district No. 8 in township No. 52 of range No. 31, in Clay county, Missouri, duly appointed, qualified, and acting as such. That on the 7th day of November, 1898, J. R. Agnew and more than eleven other freeholders of Liberty and Kearney townships, in said Clay county, filed their application in the county court of Clay county, Missouri, after notice thereof given in accordance with law, for the establishment of a new public road and for the widening of an old public road — the two to aggregate 40 feet in width — laid off to the extent of 20 feet in width on each side of the center line of such proposed new public road and widening of an old public road between the termini and along the line thus described, to wit, beginning at a point on the east line of section No. 10 in township No. 52 of range No. 31, in Clay county, Missouri, which point is 20 and 80/100 chains north of the southeast corner of said section No. 10, and running thence west 20 and 28/100 chains to a point, thence south 20 and 60/100 chains to the southwest corner of the southeast quarter of the southeast quarter of said section No. 10, thence west to a point 2 and 41/100 chains east of the quarter section corner on the south side of said section No. 10, thence south 1 and 82/100 chains, thence west 2 and 61/100 chains, thence north 1 and 82/100 chains to a point 13 feet west of said quarter section corner, thence west to the southwest corner of said section No. 10, thence west to the southwest corner of section No. 9 in said township and range, thence south to the quarter section corner on the west side of section No. 16 in said township and range, thence west to the northeast corner of the west half of the southeast quarter of section No. 17 in said township and range, thence south to the southeast corner of said half quarter section last aforesaid, thence west to the southeast corner of the west half of the southwest quarter of said section No. 17 in said township and range, the southern terminus of such proposed road. That the part of such proposed road to be in said application established as a new road is described as follows: Beginning at a point 20 and 28/100 chains west of the beginning point above described, thence running south 20 and 60/100 chains to the southwest corner of the southeast quarter of the southeast quarter of said section No. 10. That the remainder of said proposed road by said application was to be widened to 20 feet on each side of the center line above described. That said old public road had been located and established (on said 7th day of November, 1898) for a period of near 43 years in its location and establishment. A strip 20 feet in width for the purpose of such old public road had been taken off the north end of the said lands now owned and possessed by plaintiff, and such strip 20 feet in width had ever after the location and establishment of such old public
road been in the ownership and use of the public. That on said 7th day of November, 1898, after filing of said application and proof of the publication of notice of its presentment for further consideration, the same was continued to its January adjournment in the year 1899 by said county court, to wit, to January 3, 1899, and thereupon on said day said county court, by its order of record, made and entered on said day, required Charles L. Leitch, county surveyor, and ex officio road commissioner of said Clay county, to view, survey, and mark out the road so applied for by said J. R. Agnew and others, and otherwise to proceed therein according to law, and to make report of his execution of said order at its February term, 1899. That said Leitch, county surveyor and road commissioner, under said order of January 3, 1899, made report in writing to said county court at its February term, 1899, and in making such report reported a conformity therewith, whereas in point of fact he did not conform therewith in his view, survey, and marking out of said road applied for by said J. R. Agnew and others, but erroneously and unlawfully disobeyed the same, and deviated therefrom in the following particular, to wit: Instead of viewing, surveying, and marking out said road along the center line named in said application by J. R. Agnew and others, and mentioned in said order, between the southwest corner of said section No. 9 and the beginning thereof on the east line of said section No. 10, he deviated from said center line along that distance, and erroneously and unlawfully viewed, surveyed, and marked out such road along an erroneous and unlawful center line, thus described, to wit: Beginning at the southwest corner of said section No. 9; thence running east, bearing south, to a point 35 links south from the southeast corner of said section No. 9; thence east, bearing north, to a point on the south line of said section No. 10, which is 13 feet west from the quarter-section corner on the south side of said section No. 10; thence south 1 and 82/100 chains to a point; thence east, bearing south, along a line which, if prolonged to the east line of section No. 15 in said township and range, will intersect such east line 75 links from the southeast corner of said section No. 10, 2 and 61/100 chains to a point; thence north 1 and 82/100 chains; thence east 17 and 67/100 chains; thence north, 30 minutes west, 20 and 60/100 chains; and thence east 20 and 28/100 chains to a point on the east line of said section No. 10, which is 75 links south from the point of beginning named in said application and order. That because of the fact that said Leitch, as surveyor and road commissioner as aforesaid, reported a conformity with said order in viewing, surveying, and marking out said road, whereas in point of fact he disobeyed said order and erroneously deviated from the center line named in it in the particular above described, the said disobedience and deviation lay concealed under the form of said report; nor did plaintiff know the truth of the matter of said error, disobedience, and deviation until many months after the filing of said...
