California Special Road Dist. v. Bueker
| Decision Date | 01 March 1926 |
| Docket Number | No. 15171.,No. 15172.,15171.,15172. |
| Citation | 282 S.W. 71 |
| Parties | CALIFORNIA SPECIAL ROAD DIST. v. BUEKER (two cases). |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Moniteau County; Henry J. Westhues, Judge.
Consolidated actions by California Special Road District against Louis Bueker. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
See, also, 248 S. W. 927, 256 S. W. 98.
S. C. Gill and Embry & Embry, all of California, Mo., for appellant.
W. C. Irwin. of Jefferson City, and Roy Kay and J. B. Gallagher, both of California, Mo., for respondent.
This controversy arose over the alleged obstruction by defendant of a public highway.
Plaintiff is a corporation organized as a special road district under the provisions of article 6, ch. 102, Rev. Stat. Mo. 1909, and embraces and includes the public road leading from California, which is the county seat of Moniteau county, to the village of High Point in the southern part of said county and known as the California-High Point road. Defendant is a farmer residing upon land owned by him adjoining said highway on the west for a distance of one-half mile.
The petition in case No. 15171 was filed March 29, 1920, and alleged that on and prior to June 13, 1919, defendant willfully and knowingly obstructed said road by fencing upon the right of way thereof; that upon June 13, 1919, the road commissioners of said special road district, through its proper officers, notified defendant verbally and in writing to remove said obstruction; that same has not been removed and ever since has been willfully and knowingly maintained by defendant. The prayer is for judgment against the defendant for the penalty of $5 per day for each and every day said obstruction has been and shall be maintained after ten days from date of notice, as provided by section 10720, R. S. 1919. The cause was tried to a jury, resulting in a verdict for defendant. An appeal was taken to this court, and upon the plea that a constitutional question was involved, the cause was transferred to the Supreme Court (231 S. W. 71), but that court found there was no constitutional question presented and sent it back to this court (248 S. W. 927), where the judgment was reversed and the cause remanded for a new trial for errors in instructions (Calif. Rd. District v. Bueker, 256 S. W. 98).
Some two or three years after the filing of the first petition, a second petition was filed, wherein plaintiff sought to recover on the grounds alleged in the first petition, to wit, for accrued penalty as a first count, and for a second count, injunctive relief was sought. The answer to the second petition was a general denial. When the first cause again came on for trial, it was agreed that both cases should be tried together before the court sitting as a jury. The former case is designated on our docket as No. 15171, and the latter as 15172. As the two cases involve the same parties and issues, and as they were tried together, the evidence being the same, and have been briefed together, they will be considered and determined as one case on this appeal.
Before any testimony was introduced at the trial, defendant offered objection to the introduction of any evidence wherein constitutional questions would be presented to the court. The objection was overruled. The trial court sitting as a jury found the issues for defendant, and accordingly entered identical judgments in the two cases. It appears of record that plaintiff was organized and incorporated under the provisions of Session Acts of 1895, p. 253 (now article 7, ch. 98, R. S. 1919), as a special road district, in the year 1897; that it has ever since maintained its corporate existence and by its duly elected commissioners has exercised control over all public highways within its district outside the corporate limits of the city of California, being composed of a territory of six square miles. Within the boundaries of this district there is located the public road in question, which runs in a general southerly direction and over which there has been, and is, much travel. Adjacent to and west of said highway, defendant owns a farm described as the N. W. ¼, township 44, range 15, Moniteau county, Mo., extending one-half mile along said highway. It is admitted that some years ago defendant had straightened his fence for a short distance near the northeast corner of his land, along the right of way, and that at the northeast corner of his farm the fence was standing some 3 or 4 feet further east than formerly. The residence of defendant stands about 200 yards to one-fourth of a mile south of the north line of his land, on the west side of and near said highway. The northeast corner of his farm is in a little valley formed by two hills, one of which slopes from the north and the other from the south. The surface water from these hills flows towards the valley and crosses the highway toward the east through a culvert a few feet north of the north line of defendant's land. This culvert has been maintained in said location for more than 30 years.
The evidence shows that the California-High Point highway has been in existence for a period of 65 to 70 years, practically in its present location, but varying somewhat and running in slightly different places; that at one time it ran on the east side of its present location and at the point in question was wholly on the east side thereof, but that years afterward, the culvert above referred to was placed across the highway near the northeast corner and a few feet north of Bueker's land, and, as stated, has been maintained there for over 30 years. Originally the culvert was narrow, but a few years ago it was spliced at each end. In going from the south towards the corner in controversy, the road goes down a hill, or, in other words, the land slopes to the north, while defendant's land above the fence slopes to the east toward the road. It appears that a number of years ago there was a community road from the west coming through defendant's field and intersecting the High Point road at the northeast corner thereof; and that this community road started a wash down the hill on the west side of the roadway of considerable width, as shown by the testimony, and defendant, when he first built his fence along there, placed it in the same position where it now stands, to wit, northward from his house, in front of which there is no fence, until the ditch was reached on the northeast corner of his land, at which point the fence was set out into the field to the west, around the ditch and west of defendant's east line at that point.
From the record we learn that in 1869 there was presented to the county court of Moniteau county a petition for the establishment of the California-High Point road. This is the first record evidence relative to this road, and is as follows:
"Now comes Thomas J. Hart and presents a petition praying that a road leading from California to High Point is surveyed and permanently located; and the court doth order that the road commission view, survey and work out said route and make report thereof, at the next regular term of this court issued."
There was no other order of record found relative to the establishment of the road.
In 1898, the California road district was established, and soon thereafter the road along the point in controversy was macadamized. The testimony also tends to show that the road at the point in controversy was graded, macadamized, and built over the culvert heretofore mentioned; and that the main traveled part of the road has been, and now is, just where it was established at that time. Some years afterward, on verbal request of the commissioners of the California special road district, the presiding judge Of the county court of Moniteau county ordered the county surveyor to survey the road with a view to rebuilding, or relocating, the...
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