Borchers v. Brewer

• Citation: 271 Mo. 137,196 S.W. 10
• Decision Date: 01 June 1917
• Docket Number: No. 18127.,18127.
• Parties: BORCHERS v. BREWER.
• Court: United States State Supreme Court of Missouri

196 S.W. 10

271 Mo. 137

BORCHERS v. BREWER.

No. 18127.

Supreme Court of Missouri, Division No. 1.

June 1, 1917.

Appeal from Circuit Court, Nodaway County; Wm. C. Ellison, Judge.

Action by James Borchers against Joseph Brewer. From a judgment for defendant, plaintiff appealed to the Kansas City Court of Appeals, which transferred the cause to the Supreme Court. Affirmed.

On March 3, 1911, plaintiff commenced, in the circuit court of Andrew county, Mo., an action by injunction to restrain defendant from trespassing upon a strip of ground 30 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 30 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 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 and 1899 the plaintiff lived on the northeast corner of his land. His house was then about 70 rods west of the 30-foot road aforesaid, and about 60 rods 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 30-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 2 miles of the north line of said section. The nearest road running north and south west of said 30-foot road was about one mile distant, and the nearest north and south road on the east was about three-fourths of a mile or a mile from said 30-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 2-mile public road, the north mile of which corresponds with the 30-foot road in controversy. The county court refused to establish said 2-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 30-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 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 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 30 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 30-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 30-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 any one 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 55 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 30-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 dissolved.

Plaintiff in due time filed his motion for a new trial, which was overruled, and the cause duly appealed by him to the Kansas City Court of Appeals. The latter, over the objection of respondent, transferred the cause to this court, on the ground that the title to real estate is involved herein.

Hine & Cross, of Savannah, and Cook, Cummins & Dawson, of Maryville, for appellant. P. C. Breit & Roberts and Shinabargar, Blagg & Ellison, of Maryville, for respondent.

RAILEY, C. (after stating the facts as above).

I. The real issue in this case, when reduced to its last analysis, is whether or not the road in controversy became a public highway in the spring of 1900, when it was first opened for public use. In 1 Elliott on Roads and Streets (3d Ed.) § 125, the learned author correctly states the law as follows:

"A distinguishing difference between a statutory and common-law dedication is said to be that the former operates by way of a grant, and the latter by way of an estoppel in pais rather than by grant."

It is not claimed by respondent that any statutory dedication ever took place, but it is asserted that the road in controversy became a public highway in 1900, by commonlaw dedication. Judge Elliott, in 1 Roads and Streets, supra, §§ 137, 138, says:

"An implied dedication is one arising by operation of law from the acts of the owner. It may exist without any express grant, and need not be evidenced by any writing, nor, indeed, by any form of words, oral or written. It is not founded on a grant, nor does it necessarily presuppose one, but it is founded on the doctrine of equitable estoppel. As said by the Supreme Court of the United States `the law considers it in the nature of an estoppel in pais,' and holds it irrevocable. It may be established by evidence of conduct, and in many ways. In one case it was declared that: `The authorities show that dedications have been established in every conceivable way by which the intention of the party could be manifested.' If the donor's acts are such as indicate an intention to appropriate the land to the public use, then, upon acceptance by the public, the dedication becomes complete.

"It is essential that the donor should intend to set the land apart for the benefit of the public; for it is held, without contrariety of opinion, that there can be no dedication unless there is present the intent to appropriate the land to the public use. If the intent to dedicate is absent, then there is no valid dedication. The intent which the law means, however, is not a secret one,...