Barr v. Flynn

• Decision Date: 25 January 1886
• Citation: 20 Mo.App. 383
• Parties: THOMAS BARR, PETITIONER FOR A PRIVATE ROADWAY, Respondent, v. THOMAS M. FLYNN, Appellant.
• Court: Kansas Court of Appeals

20 Mo.App. 383

THOMAS BARR, PETITIONER FOR A PRIVATE ROADWAY, Respondent, v. THOMAS M. FLYNN, Appellant.

Court of Appeals of Missouri, Kansas City.

January 25, 1886

APPEAL from Saline Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

Statement of case by the court.

This is a petition for a private road-way. The petition to the county court is as follows:

" Your petitioner states that he is an inhabitant of Saline county, state of Missouri. That he is the owner of the following described tracts of land, situated in said county and upon which he now resides: (Here follows a description of the land). And that no public road passes through or touches said land; and he asks the establishment of a private road twenty feet in width, from his premises to connect with a public road of the county, known as the old Miami and Boonville road, at some convenient point. Your petitioner desires the location of said road as follows: (Here follows a description of the direction of the road, and the lands, with the owners' names, touched by it). Your petitioner further states that said road is a private way of necessity to him, as he is now fenced off from his school house church, and the railroad station."

The proper notices were given to the land owners concerned, all of whom gave the right of way, except the defendant.

On a hearing in the county court, the issues were found for the petitioner, and the defendant duly prosecuted his appeal to the circuit court. In the circuit court the defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled; and on a trial, de novo, the court found the issues for the petitioner, and, after assessing the defendant's damages, made the proper order for the opening of the road. The defendant has brought the case here on appeal.

BOYD & SEBREE, for the appellant.

I. The petition of plaintiff is insufficient in this, that it does not show that plaintiff's land was " surrounded, or enclosed, or cut off and shut out from a public highway by the lands of other persons," who refuse to allow him a passway to the public road. The county court has no power to condemn land for a private road except where it is a " private way of necessity." Const. of Mo., art. 2, sect. 20. The petition must show that the road is " a private way of necessity." Colville v. Judy, 73 Mo. 654.

II. A private way of necessity only exists when a man's land is cut off and shut out from a public highway, by the lands of others who refuse to allow him a passway. If he has a private road to a highway, the necessity does not exist. Cooper v. Maupin, 6 Mo. 631; Snyder v. Warford, 11 Mo. 514.

III. Chapter 70, Revised Statutes, is the only statute which provides a mode of opening a private road, under and in accordance with the constitution. That portion of the road law of 1883, which relates to private roads (Laws of Missouri, 1883, sections 44 to 56), does not provide for the establishment of a private road as contemplated by the constitution.

IV. Under the evidence, the judgment should have been the other way. It appeared that plaintiff's land was not surrounded by the land of other persons, but that it was bounded, for the distance of half a mile, by plaintiff's own land. It did not appear that plaintiff's land was cut off from a highway, and it did not appear that the road asked for was to the nearest high way.

SAMUEL DAVIS, with HENRY STROTHER, for the respondent.

I. Chapter 70, Revised Statutes (1879), has been repealed, and is no longer the law. That statute was taken by the revisers from the Revised Statutes of 1855, and inserted in the present statutes under a mistaken idea that it had not been repealed. It was repealed by the revision of 1865. Rev. Stat., 1865, ch. 51, p. 288. In 1868, the same law (1865), was re-enacted, and appears in Wagner's Statutes, p. 1231. These acts were, obviously, intended to cover the whole subject-matter of private roads, and had the effect to repeal the law of 1855, which was incorporated into our present Revised Statutes (1879), without authority. State v. Roller, 77 Mo. 120, and cases cited; Rev. Stat., sects. 3144-3161.

II. The petition states facts which show that the road prayed for is a private way of necessity, sufficient to satisfy both the statute and the constitution. Cox v. Tipton, 18 Mo.App. 450; Snyder v. Warford, 11 Mo. 513. The finding of the court shows that the court must have found it to be a private way of necessity.

III. The constitution says that before property can be taken for a private road it must appear to be a private way of necessity. The legislature says (by the acts of 1883), that if certain facts are stated and shown, said property may be taken. This is a legislative construction of the constitution, and a fair one, for if a man has land entirely surrounded by land of others, he is either dependent upon the caprice of his neighbors for a way to a public road, or a private road is a necessity to him. Snyder v. Warford, supra. Said act is not unconstitutional. State v. Able, 65 Mo. 357.

PHILIPS P. J.

I. The only question for determination raised on this appeal, is as to the sufficiency of the petition. It is insisted that the county court has no power to condemn private land for a private road, except when it is a private way of necessity. This proposition is correct. Article 2, section 20, of the constitution of 1875, declares: " That no private property can be taken for private use with or without compensation, unless by the consent of the owner, except for private ways of necessity," etc. This provision of the constitution is of controlling force, and being the supreme law of the state, it must prevail over any conflicting legislative act. It being a jurisdictional fact, it is essential that the petition for such way should aver that it is a way of necessity. Colville v. Judy, 73 Mo. 654. But this petition does aver " that said road is a private way of necessity," and it is, therefore, in conformity with the constitutional requirement.

II. It is further objected that the petition does not allege that the petitioner's land is " surrounded or enclosed or cut off and shut out from a public highway by the lands of other persons," who refuse to grant the...