California v. Bueker

• Decision Date: 03 December 1923
• Docket Number: No. 14865.,14865.
• Citation: 256 S.W. 98
• Parties: CALIFORNIA SPECIAL ROAD v. BUEKER.
• Court: Missouri Court of Appeals

256 S.W. 98

CALIFORNIA SPECIAL ROAD v. BUEKER.

No. 14865.

Kansas City Court of Appeals, Missouri.

December 3, 1923.

Appeal from Circuit Court, Moniteau County; John G. Slate, Judge.

"Not to be officially published."

Suit by the California Special Road District against Louis Bueker. Judgment for defendant, and plaintiff appeals. Cause transferred from Court of Appeals to Supreme Court (231 S. W. 71), and remanded by Supreme Court to Court of Appeals (248 S. W. 927). Reversed and remanded

S. C. Gill and Embry & Embry, all of California, Mo., for appellant.

J. B. Gallagher, of California, Mo., and Irwin & Haley, of Jefferson City, for respondent.

BLAND, J.

This is an action to recover the penalty provided by section 10720, R. S. 1919, for obstructing a public road. There was a verdict in favor of defendant, and plaintiff has appealed.

The statute provides in part that the road overseer or the county highway engineer who finds any road obstructed shall notify the person obstructing the same, and that such person shall pay the sum of $5 for each day after the tenth day following the notification that the obstruction is maintained or permitted to remain. The road claimed to be obstructed by the defendant is in the California special road district, located in Moniteau county, Mo. The obstruction complained of was that the defendant, who owns land adjoining on the west of that part of the road alleged to have been obstructed, on April 19, 1919, set his fence for about a quarter of a mile out into the roadbed a distance of from 3 to 4 feet. This road had been open for a great many years, and work had been done on it as far back as 1869. The sides of the road were not fenced by the abutting landowners until 1870. Defendant acquired his land in 1882, and at that time there was a fence on the east side of the land.

The evidence shows that public money had been expended on the road for 35 or 40 years before defendant last moved his fence, and that he had moved it out at least once before this last time. There was an old ditch that ran along the west side of the road in question, where it is claimed the defendant obstructed it. One witness, who testified that he was 48 years of age, stated "that the road and the ditch had been there as long as I could remember," and that defendant had a year or two prior to the trial set his fence in this ditch and filled it up with brush. The ditch is now claimed to be a part of the public road. There is no evidence of the road ever having been legally opened, but plaintiff relies upon usage to establish the road where defendant is alleged to have obstructed it. Under these conditions, the right of the public to use the road is restricted to the particular part traveled. State v. Thompson, 91 Mo. App. 329, 331.

Certain instructions were given by the court, to be hereinafter discussed, which will require a reversal of the case, but defendant insists that there was no evidence whatever from which the jury could find that defendant obstructed the road, and in this connection defendant says that the evidence is undisputed that defendant's fence was upon that part of his own land which had never been used by the public. We think the evidence in the record shows to the contrary. The witness we mentioned testified that the ditch, which defendant's fence now is in was used as long as he could remember by vehicles in passing each other. Another witness testified that the road where defendant's fence is was used by passing wagons and vehicles for as long as 25 years. Another witness, who was 46 years of age, testified that, ever since he was "big enough to remember the road," the ditch and road had been a public road and vehicles passing this point were often crowded into the ditch. Still another witness testified to the ditch's being used by vehicles in passing. We think there is no question but that the plaintiff proved the establishment by user of the road at the point where defendant placed his fence. State v. Proctor, 90 Mo. 334, 2 S. W. 472; State v. Davis, 27 Mo. App. 624; State v. Bradley, 31 Mo. App. 308....