Bruce v. Saline Cnty.

• Decision Date: 31 January 1858
• Citation: 26 Mo. 262
• Parties: BRUCE, Appellant, v. SALINE COUNTY, Respondent.
• Court: Missouri Supreme Court

26 Mo. 262

BRUCE, Appellant,

v.SALINE COUNTY, Respondent.

Supreme Court of Missouri.

January Term, 1858.

1. Where a road has been opened by order of a county court, the proper course to be pursued by one who wishes to have the same closed is to apply to the county court by petition, under the 30th and 31st sections of article 1st of the act concerning roads and highways (R. C. 1855, p. 1374) to vacate the same as useless.

Appeal from Saline Circuit Court.

At February term, 1851, of the county court of Saline county, an order was made appointing commissioners to open a certain road. The commissioners made their report at the May term, 1851. The report was approved, the court at the time making the order that “said road as viewed and marked out by the aforesaid commissioners, when cut out, will be established as a public highway.” The court at the same time appointed an overseer to cut out and put the road in repair, and districted the road, and appointed justices of the peace to allot hands to work said road. At the August term, 1857, of the Saline county court, the court made another order appointing a new overseer, and directing him to open, cut out and put the road in good repair. At adjourned term, September, 1857, A. F. Bruce made a motion to set aside the last mentioned order upon the following grounds: 1st, because said road was not legally established as the law directs; 2d, because the assent of parties over whose lands said road passes have not consented to the same, nor have they been notified of said road passing over their land; 3d, because said road, if established at all, was so established six years ago, but has never been opened or repaired or kept in repair or used as a public highway. This motion was ““rejected by the court.” An appeal was granted to the circuit court. A motion was made in the circuit court in behalf of the county court to dismiss this appeal, which motion was granted and the appeal dismissed.

Adams, for appellant.

I. An appeal will lie to the circuit court from an order of the county court requiring a new road to be opened. (Guyer v. Cooper County, 19 Mo. ____.) The county court had no right or power to make an order for the opening of a road, which had been abandoned for six years, without the institution of proceedings de novo. The appeal was not taken from an order appointing a road overseer, but from an order requiring a road to be opened which had no existence and had been closed for six years.

Ryland & Son, for r...