Butler v. Barr

• Decision Date: 31 July 1853
• Citation: 18 Mo. 357
• Parties: BUTLER, Appellant, v. BARR et al., Respondents.
• Court: Missouri Supreme Court

18 Mo. 357

BUTLER, Appellant,

v.BARR et al., Respondents.

Supreme Court of Missouri.

July Term, 1853.

1. Under the act concerning “roads and highways,” (R. C. 1845,) an overseer appointed to open a road cannot deviate from the route designated by the commissioners, against the consent of the owner over whose land the road passes. Where two objects distant from each other, are marked by the commissioners, as designating the route of the road, the presumption is that the road is located on a straight line from one object to the other, if nothing appears to the contrary from their report or other official action.

2. The testimony of the commissioners, after they have ceased to be such, is not admissible to vary the legal import of their report.

3. County courts having jurisdiction of the subject matter of opening roads, the order appointing an overseer to open a road is sufficient to protect him from liability as a trespasser on account of irregularity in the proceedings previous to the order.

Appeal from Daviess Circuit Court.

This was an action of trespass for throwing down fences and destroying trees on plaintiff's land. The defendants justified by alleging that they did the acts complained of, in opening a public road which had been established by the Daviess county court, after proceedings had in conformity to the act concerning “roads and highways;” (R. C. 1845) that the plaintiff consented to the passage of the road over his land; that the defendant, Barr, acted as road overseer under an appointment by the county court, and the other defendants were hands allotted to him by the proper officer to work on the road.

On the trial, the defendants, to show the establishment of the road, gave in evidence a record of the county court, embracing a petition for the opening of the road, the order appointing three commissioners to view and mark out the same, the report of the commissioners, the order for the opening of the road, and the order appointing defendant, Barr, overseer, which last was as follows:

“ Ordered, That Andrew Barr be appointed overseer on county road, district No. 46, from the end of Stephen Noel's lane to Moses Netherton's.”

The admission of this record in evidence was objected to, on the ground that the order did not show that Barr was appointed overseer to cut out and open a road across plaintiff's land, and also on the ground of alleged irregularities in the proceedings previous to the order.

In the report of the commissioners, the plaintiff was mentioned as one of the owners over whose land the road was to pass, and as consenting thereto, but there was nothing in the report to show the precise location of the road across his land. It appeared in evidence that the commissioners marked a tree on each side of the plaintiff's field, to designate the points of entrance and exit of the road, but made no marks within the field. The road, as opened by the defendants, ran through the field in a circuitous course, and not on a straight line from one tree to the other. The defendants proved by the testimony of Brown, one of the commissioners, that the road as opened, ran through the plaintiff's field, about on the line on which the commissioners determined to locate it, which evidence was objected to by the plaintiff.

The plaintiff, by way of rebutting evidence produced the original report of the commissioners, and offered to prove that the signature of Brown thereto was not written by him, but by another person, without authority from or consultation with him. This evidence was not admitted.

The plaintiff, among other instructions, asked the following, which was refused:

If the jury find that the viewers of the road mentioned in the answer marked certain trees on opposite sides of plaintiff's inclosure as being on the line of such road, and omitted to select and lay out the route of such road between those trees, then, by law, the overseer was bound, in opening such road, to open the same on a straight line between such trees, and had no right to deviate from such line.”

In lieu of the instructions asked by the plaintiff, the court gave the following:

“If the defendants or any of them, in the alleged opening a road, pulled down more of the plaintiff's fence than was necessary to open such road, or cut down or injured any fruit or shade trees of the plaintiff, not on the line of the said road, or opened the said road on a line not previously viewed out by the commissioners and established by the county court, without the consent of the plaintiff, as against such as thus acted, the jury will assess damages for all trespasses committed, either in pulling down more fence than was necessary in opening the road, or in cutting down any trees not in the line of the road, or in opening the road on a line...