SMITH, Judge.
This is a proceeding brought by the plaintiff to enjoin the defendants from keeping closed a road which runs across their lands, and to compel them to open the road and to take down obstructions placed on said road.
The case was tried by the Circuit Judge, and the judgment was for the defendants. An appeal to this court was had. There is no complaint made as to the pleadings.
The case is presented to us under three assignments of error, as follows:
"I. The Court erred in not sustaining plaintiff's objections to parts of the deposition of Fred Killan.
"II. The Court erred in rendering judgment in favor of the defendants, and in dismissing plaintiff's petition.
"III. The record clearly shows that the road which defendants obstructed was a
public road; was not abandoned, and the judgment should have been in favor of the plaintiff, and the Court erred in not granting the injunction."
We shall give details of the evidence as we consider the assignments.
The first assignment has to do with objections made as to the deposition of Fred Killan. This witness had his deposition taken in Ventura County, California, before a notary public there. He had lived in California for three years, and prior to that, had lived at Buffalo, Missouri, and owned ninety acres just south of the lands owned by the plaintiff, being the lands now owned by the defendants, O. B. Burguard and Frank Ross, and occupied by Edd Owens, their tenant.
We quote below the part of this deposition where objections were made with the court's ruling thereon, as follows:
"Q. When did you buy this land? A. About 1904.
"Q. How long did you own it? A. About 32 years.
"Q. Did you live on this farm continuously from the year 1904 until the year, 1936? A. Yes.
"Q. During the 32 years you lived on this farm, was there a public road running North from the South side between the two forty-acre tracts in Section 8 and the two ten-acre tracts in Section 5? A. No.
"Q. Was there any road open between the East half and the West half of the Dallas County farm you owned during the years you lived on same from 1904 to 1936 that was traveled, claimed and worked by the public as a public road?
"The Plaintiff objected to the question for the reason that it is leading, and is incompetent, and asks for a conclusion of the witness, which objection was by the Court overruled, to which ruling of the court the plaintiff then and there duly excepted at the time.
"A. No.
"Q. How many years did you have that part of your former Dallas County farm fenced, that is between the East half and the West half, where a public road is now claimed? A. About 27 years.
"Q. Was it fenced continuously during that time? A. Yes.
"Q. Did you, at any time, during the 32 years you lived on the Dallas County, Missouri, farm, know or recognize that a public road ran North from the South side of the farm along the line between the West half and the East half to the North side of the farm?
"The plaintiff objected to the question for the reason that it is leading, and is incompetent, and asks for a conclusion of the witness, which objection was by the Court overruled, to which ruling of the court the plaintiff then and there duly excepted at the time.
"A. No.
"Q. Did you, during the 32 years you had the old roadway fenced that ran North and South through the center of your former Dallas County farm, claim to own the old roadway, or did you think it was a public road and belonged to the public?
"The plaintiff objected to the question for the reason that it is leading, and is incompetent, and asks for a conclusion of the witness, which objection was by the Court overruled, to which ruling of the court the plaintiff then and there duly excepted at the time.
"A. When I first went there was a passway along the line as above described which was open; I closed up the road, or passway, about 1909; after that date. I always claimed to own the road and had full control of the ingress and egress of the same.
"Q. During the 32 years you owned the NE¼ of the NW¼ of the NE¼ of Section 8 and the South 10 acres of the SW¼ of the SE¼ and the South 10 acres of the SE ¼ of the SW¼ of Sec. 5, all in Township 34, Range 20 in Dallas County, Missouri, did any road overseer of the road district in which this land is situated ever do any work or expend any public money on, or the public travel, a purported public road running North from the South line of your farm to the North line along the center line between the East half and the West half of the farm?
"The plaintiff objected to the question for the reason that it is leading, and is incompetent, and asks for a conclusion of the witness, which objection was by the Court overruled, to which ruling of the court the plaintiff then and there duly excepted at the time.
"A. No."
A reading of the above shows that while there might have been some error in the form of the questions asked and the answers given, yet since it was a trial before the court sitting as a court of equity
it was not such an error as to cause a reversal of the case, and we rule this point against the appellant.
The second and third assignments of error, above quoted, may be considered together, because these assignments go to the merits of the case as presented by the evidence to the trial court.
It was admitted in the trial of the case that the plaintiff is the owner of the lands lying just north of the lands belonging to defendants Burguard and Ross, and that there is no record in the county clerk's office showing that the road in question was ever established as a county road by the county court.
The plaintiff, A. J. Birkey, testified that he bought his farm on November 28, 1936, and at that time there was no building on the land; that he bought the place to make a home for his family consisting of himself, his wife, and five children, three of whom are of school age, and that the school his children attends is south of the lands owned and controlled by defendants and with the road closed his children in reaching the school would have to go east a quarter, then south and back west a quarter, and with this road closed, there would be no road from his place to town, church or school without going over private property. Quoting his testimony we find this:
"When I went to look at the land in 1936, before I bought it, this road was there then, through the Burguard and Ross place. It was open and it showed it was being used; people were using it right along. In fact, Mr. Wilbur Owens took me down to see Mr. Owens and I went through there on that road at that time. Wilbur Owens is a son of Ed Owens and Ed Owens is the man who is living on the place, and was then." * * *
"The road through Burguard and Ross' place, when I went to look at the farm, was in bad shape. It was visible, looked like there had been a road there 25 to 50 years. It was about 30 feet wide. At that time there was no fence on either side of the road. It showed indications of having been traveled and been used. I saw the tracks there at the time. I would not have bought the place if I had known or thought that that was not a road. My farm is not worth near as much if that road is closed as it would be with the road open. It would be a big damage to me. I moved on to the place a year ago last February, but I have had a man living over there ever since the following August. We first put up a small log shack and he went over there to take care of it. I haven't never traveled this road since I went over there because they told me I couldn't, they had it closed. I had a conversation with Mr. Burguard in February the first year I was down there, and he said they didn't want that road down through the center. They obstructed the road to keep me from going through there by first driving posts and then wiring it up, and on account of those obstructions I have not been able to use that road. My children, in going to school, go over Charley Anderson's road, and go a quarter of a mile east and then south a quarter back west. That is just a ten-foot strip that he lets them go over. I go over Mr. Robinson's private ground, through the timber to get to the public road. If he should refuse to let me go through there I would have no way to get to a public road. None of my land joins on any public road.
"Cross-Examination by Mr. Farrar.
"Wilbur Owens took me over there when I went to look at the land. Charley Williams went along. Mr. Owens was living on the Burguard farm at the time. When we entered the Burguard place we went down the county road and entered from the south entrance. We went through a gate; I couldn't say whether it was open or closed. There was no other gate down near the branch at the time I went through there. There were no gates there. The next gate was on the North side and we opened that and went through it; I saw that that gate was there on the south and there was a gate on the north side also. I couldn't say that we followed a straight road north and south, I don't think so. We did not cross the creek there but other people traveled in here (indicating) going around. You couldn't follow that road straight north till it is fixed. My house is on the north forty and the school house is one mile south. Part of my land is in that school district,...
