Borchers v. Brewer
| Decision Date | 01 June 1917 |
| Parties | JAMES BORCHERS, Appellant, v. JOSEPH BREWER |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- Hon. William C. Ellison Judge.
Affirmed and remanded.
Hine & Cross and Cook, Cummins & Dawson for appellant.
(1) To constitute a valid dedication of land to the public there must be a clear intention on the part of the owner to dedicate, for a dedication of land to public use depends upon the intention of the owner. Brinck v. Collier, 56 Mo. 160; Pierce v. Chamberlain, 82 Mo. 618. There must be a clear intention to dedicate. McGrath v Nevada, 188 Mo. 107; State v. Hood, 143 Mo.App 316; Vasson v. Dantel, 116 Mo. 384; Landis v. Hamilton, 77 Mo. 554; State v. Young, 27 Mo. 259; Morgan v. Durfee, 69 Mo. 463; State v. Wells, 70 Mo. 635; Price v. Breckenridge, 92 Mo. 378. (2) The fact that plaintiff permitted the public to use the road does not constitute a dedication. Railway Co. v. Woodlard, 60 Mo.App. 631; Coberly v. Butler, 63 Mo.App. 556; State v. Guernsey, 9 Mo.App. 314; State v. Culver, 65 Mo. 607; Stacy v. Miller, 14 Mo. 478; State v. Young, 27 Mo. 260; 13 Cyc. 483.
Breit & Roberts and Shinabargar, Blagg & Ellison for respondent.
(1) It is admitted that to constitute a valid dedication of land to the public, there must be an intention on the part of the owner to dedicate. Elliott on Roads and Streets (3 Ed.), p. 160, par. 138. But the intent need not be actual, but may be only constructive, for the theory of common law dedications is referable to the equitable doctrine of estoppel. A land-owner, even in the absence of an actual intent to dedicate, will not be permitted to deny that he has dedicated land to public use when he has induced the public, relying upon the apparent significance of his visible acts and conduct, to assume that the land has been dedicated to public use, to adjust their affairs to that supposed condition, and to act thereon to their prejudice. Elliott on Roads and Streets (3 Ed.), p. 160; Columbus v. Dahn, 36 Ind. 330; Morgan v. Railroad, 96 U.S. 716; Indianapolis v. Kingsbury, 101 Ind. 200; Miller v. Indianapolis, 123 Ind. 196; Gillespie v. Duling, 83 N.E. 730; Railway v. Christie, 100 N.E. 301; Fassion v. Landrey, 123 Ind. 136; Marion v. Skillman, 127 Ind. 130. (2) It has been said that dedications have been established in every conceivable way by which the intention of the party could be manifested. Baker v. Vanderburg, 99 Mo. 391; Elliott on Roads and Streets (3 Ed.), p. 199; Chicago v. Railway, 152 Ill. 561.
On March 3, 1911, plaintiff commenced, in the circuit court of Andrew County, Missouri, an action by injunction to restrain defendant from trespassing upon a strip of ground thirty feet wide, running north and south on the east side of his land, described as the southwest quarter of section 30, township 61, range 35, county and state aforesaid. After alleging repeated trespasses on the part of defendant, during the year 1909 and 1910, plaintiff asked for $ 500 damages, and prayed for a perpetual injunction against defendant. A temporary injunction was issued and defendant answered, alleging that on March 21, 1908, he bought and entered into possession of the northeast quarter and the west half of the southeast quarter of section 30 aforesaid; that at the time he purchased same, there was a road thirty feet in width west of and adjoining his land aforesaid, running along the entire west side of same, which said road was still there at the time of the filing of said answer; that it was a public road; that plaintiff obstructed the same by putting posts in the center thereof and at divers times stretched wire across the same; that he (defendant) removed said obstructions, in conjunction with others, as they were placed across said road during 1909 and 1910, for the purpose of clearing said public road of said obstructions. He alleges that plaintiff had an adequate remedy at law and was guilty of laches in failing to assert his alleged rights sooner. Defendant, in said answer, prayed for the dissolution of said injunction and asked the court to enter a judgment restraining plaintiff from interfering with his use of said highway and from in any manner preventing him from having free and uninterrupted egress and ingress to and from said road.
In the Spring of 1900, plaintiff was the owner of and living upon the 160 acres aforesaid. The remaining three-fourths of said section, at that time, belonged to the Samuel estate. John S. Lemon of St. Joseph and Mr. Yates of Chicago, were executors of the Samuel estate, and had the power under the Samuel will to sell and dispose of said real estate. In 1898-9, the plaintiff lived on the northeast corner of his land. His house was then about seventy rods west of the thirty-foot road aforesaid, and about sixty roads south of the north line of his farm. The Fleming schoolhouse was located near the northwest corner of the northeast quarter of said section and a few rods east of said thirty-foot road. There was a public road running east and west along the north side of said section 30, and another public road running east and west along the south side of same. Plaintiff lived in said school district. There were two churches north and within two miles of the north line of said section. The nearest road running north and south west of said thirty-foot road was about one mile distant, and the nearest north-and-south road on the east was about three fourths of a mile from said thirty-foot road. Plaintiff had minor children who attended the Fleming school, and in going there, had to pass over a portion of the Samuel estate, then in pasture, where cattle were kept. It was important for plaintiff to obtain a roadway north, and he, in conjunction with others, attempted to have a public road opened north and south through the center of said section 30 and through the center of the section south of section 30. A petition was presented to the county court, asking for the establishment of said two-mile public road, the north mile of which corresponds with the thirty-foot road in controversy. The county court refused to establish said two mile road, unless the petitioners therefor would secure the right of way. They failed to secure same, and said project was abandoned. Thereupon, plaintiff, in 1899, opened up negotiations with Mr. Lemon, as executor of the Samuel estate, for the construction of the thirty-foot road as it now stands. Plaintiff read in evidence a letter from executor Lemon, which will be considered in the opinion.
It appears from the evidence that in the Spring of 1900, plaintiff, after receiving the above letter from Lemon, and after having personally talked with him, in regard to opening the road in controversy, proceeded to construct a good and substantial fence on each side of his said road, as it runs north and south on the east side of his quarter section. He likewise built a bridge on said portion of road, and put the latter in good condition for public travel. George Violett, in behalf of the Samuel estate, extended the road in controversy, thirty feet in width, on the east side of the northwest quarter of said section 30, and built a good and substantial fence on each side of same. The plaintiff and Samuel estate thus constructed a thirty-foot road and put the same in good condition, immediately west of the center section line running north and south through section 30 aforesaid, and this constitutes the mile of road in controversy here.
Plaintiff testified that in the fall of 1900 he put a wire across the thirty-foot road on the east side of his farm to let his stock eat the grass on said land, but only kept the wire there for one day and removed it himself. It is not claimed that anyone else ever saw this wire or knew that it was placed as above.
About the year 1905 plaintiff removed his residence to the southeast corner of his farm, near the public road running east and west, and about fifty-five rods west of the road in controversy. All of his children, except one, were then past the school age. The plaintiff, his family and the public in general used the thirty-foot road clear through section 30 aforesaid, from 1900, when it was first opened, up to 1905, without objection upon the part of plaintiff or any one else, and said road was used by the public thereafter, up to time of trial below. Portions of the land formerly owned by the Samuel estate were sold at different times, and the purchasers thereof constructed houses along the road in controversy, and used the same in passing north and south over said section. After the plaintiff had removed his residence from the northeast corner of his farm to the southeast corner of same, and after his children had ceased to attend the Fleming school, he thereafter concluded to close up the road in question, by fencing same and placing obstructions thereon. These obstructions were removed by defendant and others as often as they were installed. Thereupon the present action was brought by plaintiff, and cross-petition filed by defendant.
Such other questions as may be necessary will be considered in the opinion.
The trial court found the issues against the plaintiff on the latter's case, and entered its judgment in favor of respondent. The court likewise found the issues on behalf of defendant, as to the latter's cross-petition, and perpetually enjoined plaintiff from obstructing or fencing across said road, and enjoined him from interfering with defendant in his use of said road or highway, or in any manner preventing defendant from having the free use of same etc. The temporary injunction formerly issued was...
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