Berry v. St. Louis & S.F.R. Co.

• Citation: 124 Mo. App. 436,101 S.W. 714
• Court: Missouri Court of Appeals
• Decision Date: 16 April 1907
• Parties: BERRY v. ST. LOUIS & S. F. R. CO. et al.

101 S.W. 714

124 Mo. A. 436

BERRY v. ST. LOUIS & S. F. R. CO. et al.

St. Louis Court of Appeals. Missouri.

April 16, 1907.

1. HIGHWAYS—ESTABLISHMENT BY PRESCRIPTION —CLAIM.

Where plaintiff fenced in a part of the originally traveled road which had been used for seven or eight years, and established a new road in another place, with the intention that the

road as changed should be used by the public, and it was so used for eight or nine years, the act of plaintiff, not being hostile to the right of the public, did not interrupt the running of the statute so as to prevent the whole road from becoming a public highway by adverse possession.

2. RAILROADS — HIGHWAYS — CROSSINGS — DUTY TO FENCE.

Where a road has become a public highway, a railroad is not required to fence it at a crossing in order to escape liability under Rev. St. 1899, § 1105 [Ann. St. p. 945], for animals killed thereon.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Eblin Berry against the St. Louis & San Francisco Railroad Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

Moses Whybark, for appellants. J. V. Conran, for respondent.

BLAND, P. J.

On September 24, 1904, plaintiff's cow was unavoidably struck and killed by defendants' engine and cars at a country road crossing in New Madrid county. The action is bottomed on section 1105, Rev. St. 1899 [Ann. St. 1906, p. 945]. Plaintiff recovered judgment for double the value of cow. The point in controversy is as to whether or not the road where the crossing was made was a public road, or such a road as defendants were required by law to keep open by constructing a crossing where its tracks crossed the same. The evidence in respect to the road was all furnished by plaintiff, and, briefly stated, is that plaintiff had lived on his farm for 17 years and the road run over his land just outside his south fence, when he moved on the farm; that nine or ten years before the trial he moved his fence 150 or 200 yards south, taking in the old roadway, and cut out a new one along and on the outside of his fence, for the purpose of giving his neighbors a road; that the road was a neighborhood road, and had been traveled by the public during all the time he had lived in the neighborhood, and he did not know how much longer; that no public work had ever been done on the road; that it led into another road that turned east and people had to travel it; that the railroad had been in...