Boonville Special Road District v. Fuser

• Decision Date: 02 November 1914
• Citation: 171 S.W. 962,184 Mo.App. 634
• Parties: BOONVILLE SPECIAL ROAD DISTRICT, Respondent, v. MARTIN FUSER, Appellant
• Court: Kansas Court of Appeals

171 S.W. 962

184 Mo.App. 634

BOONVILLE SPECIAL ROAD DISTRICT, Respondent, v. MARTIN FUSER, Appellant

Court of Appeals of Missouri, Kansas City

November 2, 1914

Appeal from Cooper Circuit Court.--Hon. J. G. Slate, Judge.

Judgment affirmed.

John Cosgrove and Dan Cosgrove for appellant.

W. G. & G. T. Pendleton, Roy D. Williams and W. F. Johnson for respondent.

OPINION

TRIMBLE, J.

For the second time this case is before the court. It was brought here the first time by plaintiff who appealed from the judgment of the trial court sustaining a demurrer to the evidence. The judgment was reversed and the cause remanded as will appear from the opinion of this court reported in 174 Mo.App. 573. This time the defendant has appealed. The suit is under section 10533, Revised Statutes 1909, which provides that if any person shall knowingly or willfully obstruct or damage any road by fencing upon the right of way of the same, the road overseer of the district shall verbally or in writing notify him to remove such obstruction forthwith, and if said person does not remove such obstruction within ten days after being notified, he shall pay the sum of five dollars for each and every day after the tenth day such obstruction is maintained or permitted to remain, to be recovered by suit brought in the name of the road district. It was brought July 12, 1912, to recover five dollars a day from and after ten days from March 22, 1911, the date when defendant was notified by the road overseer to remove the obstruction. The court, however, instructed the jury that if they found the issues for the plaintiff, the penalty could not be assessed for any day earlier than within one year next before the filing of the suit and that the aggregate amount assessed could not in any event include more than one year less one day. Among the facts which the jury were required to find before they could return a verdict for plaintiff was that defendant had maintained the obstruction up to the time of filing the suit. The limitation on the amount recoverable above noted was placed there by the trial court as a precaution in view of his ruling that the case was governed as to limitation, by section 4946, Revised Statutes 1909. The jury returned a verdict assessing the penalty at $ 1820, which was the penalty for 364 days at $ 5 per day.

It is urged that the notice shown in evidence did not comply with the statute in that it was not given by the road overseer himself. But the evidence was that the overseer made out and officially signed two duplicate written notices to the defendant notifying him of the obstruction and to remove it forthwith and that if it was not removed in ten days, he would be liable to the penalties prescribed by the statute. The overseer gave these duplicates to his son with directions to read and deliver one of them to the defendant. This the son did on March 22, 1911. Thereafter, the road overseer himself saw the defendant and had a talk with him about the fence in the road. The requirement of the statute as to notice was complied with. It might be remarked here that inasmuch as the former holding of this court on the demurrer to plaintiff's evidence necessarily included a holding that that notice was sufficient, this perhaps made the question of the sufficiency of the notice a matter adjudged, since that holding was a direct ruling on every question presented, or that could have been raised, under the demurrer. [Dunn v. Nicholson, 125 Mo.App. 725, 103 S.W. 114; Roth v. City of St. Joseph, 167 S.W. 1155.] But, be this as it may, the notice contemplated by the statute was given, and was sufficient.

When the road was obstructed, and the notice given, Road District No. 5 was in existence and controlled the road in question. After the service of the notice by the overseer, that district was absorbed and swallowed up by the Boonville Special Road District. Defendant on this account challenges the latter's right to sue. This, however, was decided adversely to defendant on the former appeal.

The constitutionality of section 10533 is sought to be attacked on the ground that the statute gives the penalty to the road district while the Constitution says it shall go to the school fund. Whether the statute says anything about where the penalty shall go, but merely provides a method of procedure for its recovery, is a question with which we have nothing to do since a decision of it either way would involve the question whether or not the section came within the constitutional inhibition, and jurisdiction to pass on such question is in the Supreme Court. But the latter has held that a constitutional question is not involved in a case unless it was raised in the trial court. And then it should be raised "timely in the course of orderly procedure." [Miller v. Connor, 250 Mo. 677, l. c. 684; Bennett v. Missouri Pacific Railway, 105 Mo. 642, 16 S.W. 947.] No such question was raised in the trial of the case nor is it mentioned in the motion for new trial. In fact, the answer asserts that the penalty belonged to the former District No. 5. Defendant cannot, therefore, at this late hour, obtain any benefit from the point now made for the first time.

The road alleged to be obstructed is called the Little Ferry Road and runs west from the top of "Bell's Hill" at said road's intersection with the old "Santa Fe Trail" now "The State Highway." Defendant owns land south of the Little Ferry road extending from the above intersection west for a considerable distance. The obstruction complained of consists of a post and wire fence which defendant set commencing at the above intersection and running west to inclose his land. It is claimed that from the intersection west for a distance of 160 or more yards the fence is in the road.

The pleadings admit that the road was originally established sixty feet in width. This was done many years ago. It was at least before 1848 because at that time and continuously thereafter the road has been open to and used by the public. How long it was used before that no one now living knows.

Defendant bought the land abutting the road on the south in 1885. After buying, he moved his fence two or three times, a few feet at a time, outward to the north and closer to the fence on the other side of the road. The last time he moved his fence was six or eight years before the trial. Having been traveled so long, the roadway had become worn down until there were then, and now are, banks three or four feet high on each side. The fence, as last located by defendant, leaves the roadway twenty-eight feet wide from this fence to the one on the opposite side at or near the top of the north bank. From the top of the south bank north to Fuser's fence is twenty or twenty-five feet while from the foot of said bank north to the said fence is fourteen feet, said space so inclosed by said fence is comparatively level except for a depression taking the form of a nearly filled ditch along the roadside.

Defendant's claim that his fence does not encroach upon the road is based upon the theory that the road in question was located so that its center line is upon and coincident with the east and west center line of section 5, and that although the road was originally established sixty feet in width, yet in August, 1874, the county court, upon the petition of landowners along the road, reduced its width to forty feet. Consequently, his position is that as the offending fence is twenty or twenty-one feet from this center section line, and therefore in the road as originally established, yet it is still outside of the twenty feet constituting the south half of the road as reduced, and the fence is, therefore, not an obstruction.

The evidence, however, does not show that the road was established on the section line as its center. No surveys establishing the road were introduced to show that this was so, and defendant's surveyor admitted that none would show such to be the fact. There was evidence on the contrary however, which tended to show that the larger portion of the road was south of the section line. This was abundantly shown to be the fact so far at least as the actual location of the road upon the ground is concerned. The surveys of lands adjoining the road did not state that the section line was in the center of said road, and for that reason, if for no other, they were not evidence that it was. Consequently, the court did not err in refusing to admit such surveys offered by defendant to prove that the section line was in the center of the road. But defendant contends, in effect, that if the road was not...