Belk v. Hamilton

• Decision Date: 07 November 1895
• Citation: 32 S.W. 656,130 Mo. 292
• Parties: BELK v. HAMILTON.
• Court: Missouri Supreme Court

32 S.W. 656

130 Mo. 292

BELK v. HAMILTON.

Supreme Court of Missouri, Division No. 1.

November 7, 1895.

LOCATION OF PRIVATE WAY — PETITION — ORDER.

1. Const. 1875, art. 2, § 20, prohibits the taking of private land for private use without consent of the owner, except for "private ways of necessity." Rev. St. 1889, § 8559, authorizes the taking of private land for a private road on a petition asking for a "private way" from land to a public road, and showing that "no public road passes through or touches" the land. Held, an allegation that no "public road passes through or touches" the land will render a petition under the latter good against collateral attack for failure to allege that the way asked was one of necessity.

2. A petition for a private way from private land to a public road, describing the land as a government subdivision, located in a certain county, and the petitioner as a householder of a township in the county, and asking the road for her benefit "in said township," conclusively locates the land in such township, so as to render a judgment by commissioners authorized to act in said township good against collateral attack.

3. An order of a county board in a proceeding to establish a private way, reciting the deposit by the petitioner of the damages awarded, and directing the defendants to vacate the road and the road overseers to open it, as in the order described, over the defendants' land, sufficiently complies with Rev. St. 1889, § 8562, requiring the county board, at a proper stage of such a proceeding, to order the way established, and render judgment against the petitioner for damages allowed each defendant.

Appeal from circuit court, Dekalb county; William S. Herndon, Judge.

Petition by Martha Ann Belk against Henry Hamilton to enjoin defendant from obstructing a private way. From a judgment for defendant, plaintiff appeals. Reversed.

The material parts of the record of proceedings of the township board, referred to in the opinion, are as follows: The petition of plaintiff, Martha Belk, to the board, represented that she owned a certain (described) tract of land, "that no public road passes through or touches said land," and prayed the establishment of a private road 20 feet wide between certain points (a course duly and particularly defined), so as to join a public road mentioned. It was also stated that the proposed private road would pass over the land of John Dice and Henry Hamilton, the latter the defendant in this case. The petition was dated June 18, 1892. To it was annexed a formal notice by plaintiff to both Dice and Hamilton to the effect that the said petition for a private road would be presented to the township board of Adams township July 5, 1892. A copy of the petition and notice was served on each of the defendants June 23, 1892, as appears by affidavit of the party who made such service, according to the finding of the board to that effect in its record. July 5, 1892, the board entertained the petition, but continued the matter until accrued costs should be paid, and a deposit be made by plaintiff to meet any later costs. September 5, 1892, the board again took up the matter. Plaintiff paid the costs, and the board proceeded as follows (according to the recital of its record): "The board now takes up the petition which calls for a private road commencing [then follows a particular description of the road] terminating in a public road running east and west along the north line of said section No. 16; said proposed road to pass over the lands of John Dice and Henry Hamilton. Now comes William Belk, and makes affidavit that he delivered a true copy of the said petition to John Dice and Henry Hamilton, in the county of Dekalb, and state of Missouri, on the 23d day of June, 1892. The board deems it necessary for the said Martha Belk to have a road. They therefore appoint Perry McCully, David Duncan, and J. P. Dean, three disinterested householders, residents of Adams township, as commissioners to mark out, view, and assess the damages sustained by the said John Dice and Henry Hamilton, and report to the township board at the next meeting." The next record entry is this: "November 21st, 1892. State of Missouri, County of Dekalb, Adams Township. In the matter of a private road ordered to be viewed, marked out, and damages assessed by the board of Adams township, on the 5th day of September, 1892, Perry McCully, David Duncan, and J. P. Dean, commissioners, appointed to view said road, now each of us do solemnly swear to honestly, faithfully, and impartially, and to the best of our ability, to discharge our duty under order of the township board of Adams township in regard to the following private road. Perry McCully. S. D. Duncan. J. P. Dean. Subscribed and sworn to before me this 17th day of November, 1892. E. H. Brant, Twp. Clerk." Later appears this: "November 21st, 1892. We, the above commissioners, after viewing the road petitioned for Martha Belk, as ordered by the board of Adams township, and would report as follows: We would allow Henry Hamilton $12.00 as damages for his land, and $4.00 damage for removing wire fence. We would further report that in our opinion John Dice is damaged to the amount of $12.00 for his land. Said road to begin at the northeast corner of the southeast quarter of the northwest quarter of section 16, township 58, range 30; thence north on the subdivisional line for the center of the said road one-fourth of a mile to the quarter-section corner on the north line of the said section No. 16, and intersecting a public road running east and west along the north line of section 16, township 58, range 30; said road to be 20 feet in width. Perry McCully. J. P. Dean. S. D. Duncan." Another entry is as follows: "February 27th, 1893. Now comes Martha Belk, and pays the damages assessed to Henry Hamilton and John Dice in the matter of a private road, recorded on pages 174 and 175." And on the same date: "The board orders the clerk to notify Henry Hamilton that damages have been paid to the township treasurer for his use; also to notify him that he is to open up and vacate said road on or before the 15th day of April, 1893." At the same meeting, same date, is the following entry: "The board, now makes and orders Henry Hamilton to remove his wire fence, vacate and open up the private road petitioned for by Martha Belk, and that said order be complied with on or before April 15th, 1893." Yet later is this record: "May 27th, 1893. To Road Overseer of Road District No. 3, of Adams Township, Dekalb County, Missouri — Wm. Johnson: You are hereby ordered to open a road twenty feet in width as petitioned for by Martha Belk and granted by the township board of Adams township, Dekalb county, Missouri, beginning, course, and ending as follows, viz. [then follows the description] terminating at a junction and intersecting a public road running east and west along the north line of said section No. 16; said road to pass over the lands of John Dice and Henry Hamilton." William Johnson, the overseer, opened the road pursuant to the order of the township board. The other necessary facts appear in the divisional opinion.

Harwood & Hubbell, for appellant. Robt. A. Hewitt, Jr., for respondent.

BARCLAY, J.

This suit is for an injunction to restrain defendant from interfering with plaintiff's use of a road which affords access to plaintiff's property. The defendant claims exclusive title to the land on which the road is located, and denies the legality of the proceedings on which plaintiff relies. The only question submitted upon this appeal is as to the validity of the proceeding to open the road. The land in dispute lies in Dekalb county. The proceedings were had before the township board, under the township organization law (section 8552 and the following sections, Rev. St. 1889). The material parts of the record of the board are given in the statement introducing this opinion. After the road was opened (under the order of the board) the defendant obstructed the road, and...