Borders v. Glenn

• Decision Date: 18 June 1921
• Docket Number: No. 2907.,2907.
• Citation: 232 S.W. 1062
• Parties: BORDERS v. GLENN.
• Court: Missouri Court of Appeals

232 S.W. 1062

BORDERS v. GLENN.

No. 2907.

Springfield Court of Appeals. Missouri.

June 18, 1921.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Suit by W. F. Borders against W. A. Glenn to enjoin closing a public road. Injunction was granted, and defendant appeals. Transferred from Supreme Court (226 S. W. 915). Affirmed.

Barton & Impey, of Houston, for appellant.

Lamar, Lamar & Lamar, of Houston, and W. A. Newton, of Hartville, for respondent.

FARRINGTON, J.

This is an action brought by the plaintiff against defendant to enjoin him from closing a public road in Wright county, Mo. The case was taken on change of venue to the circuit court of Texas county, where the injunction was granted. An appeal was granted to the Supreme Court, and the case was subsequently transferred to this court.

A number of assignments of error are made. We have examined them all, and find that a determination of two points made will render unnecessary the consideration of the others. It is first contended that the court erred in finding that the road obstructed was a public road; and, second, that even though it be a public road, the plaintiff in this suit sustained no damages which were not borne in common by the rest of the community, and therefore is not entitled to maintain the suit to abate the nuisance.

The facts of the case as shown by the evidence are about as follows: Some 31 or 32 years prior to the trial, a witness who owned the land which is now owned by the defendant cut out a road running east and west, joining with a road known as the Mansfield and Antrim road, which latter road runs north and south. The defendant's land lies on both sides of this east and west road which he obstructed. The road is not exactly, but very nearly, on the line between the quarter section lines. This former owner testified that 30 years prior to the trial he had cut the road out for his own use and for the public to use if they desired to. The evidence shows that the public did begin to use the road as soon as it was cut out, and for over 25 years the mail carrier had been carrying the mail along and over this road, first a Star Route and afterwards a Rural Route carrier. The road, after going through defendant's land, passes on east, where it goes through the farm owned by the plaintiff. The road was obstructed at or very near its intersection with the north and south county road known as the Mansfield and Antrim road. It is shown that the public had travveled that road for 30 years whenever they wanted to, without interference; that a church had been built on that road to which the people traveled to and from, the church having, however, burned down some three or four years before the trial; and that a schoolhouse had been built for a great number of years on this road, which schoolhouse was still being used as such, and that the school children and all parties going to and from the school traveled this road. It is further shown that the plaintiff traveled this road more than any other road in going to neighborhood stores and in going to the town of Mansfield, and that with this road obstructed it depreciated the value of his land and made it much farther for him to go around to stores at which he traded and the town to which he usually went. This is a sufficient interest shown in the plaintiff to entitle him to the remedy of injunction if the obstruction placed in the road by defendant is wrongful. To sustain this proposition, we need merely to cite the cases of Borchers v. Brewer, 271 Mo. 137, 196 S. W. 10; Fitzgerald v. De...