Carpenter v. Grisham

• Decision Date: 28 February 1875
• Citation: 59 Mo. 247
• Parties: HORACE CARPENTER, Respondent, v. JOHN W. GRISHAM, Appellant.
• Court: Missouri Supreme Court

59 Mo. 247

HORACE CARPENTER, Respondent,

v.JOHN W. GRISHAM, Appellant.

Supreme Court of Missouri.

February Term, 1875.

Appeal from De Kalb Circuit Court.

Strongs & Bennett Pike, for Appellant.

I. Trespass will not lie against a road overseer who is attempting to open a road under the order of the County Court. (Butler vs. Barr, 18 Mo., 357.) Of course, if trespass would not lie against defendant for the acts complained of by plaintiff, an injunction would not lie to restrain him from doing the acts or threatening to do them.

II. The sole object of this suit is an injunction, which the law does not allow, there being no suit in trespass, nor any prayer in the bill, for an account or compensation. (Welton vs. Martin, 7 Mo., 307.)

III. A party complaining of a tort, must have established his right to a redress by an action at law before he is entitled to a perpetual injunction. (Arnold vs. Klepper, 24 Mo., 277; Echelkamp vs. Schrader. 45 Mo., 505.) The principle of relief by injunction against a tort, is that damage is caused or threatened to property admitted or legally adjudged to be plaintiff's. (Ad. Eq., p. 207.)

IV. The bill was not brought against the proper parties. The County Court is the proper party to the bill, if the order under which the overseer is acting, in opening a road, is not a nullity.

V. If there is any irregularity in the proceedings, or non-compliance with the law on the part of the court, they will only be enjoined till such time, as they should have complied with the law. It would be error in such a case to make the injunction perpetual. (Champion vs. Sessions, 2 Nev., 271; High Inj., p. 226.)

Wm. Henry, for Respondent.

I. The legal steps necessary to authorize the seizure of the land, were not taken. (See Gen. Stat. 1865, p. 290. § 1; p. 296, §§ 48-50; p. 219. §§ 8-11; Newby vs. Platte Co., 25 Mo., 258; Walther vs. Warner, Id., 277; High Inj., 225; Lind vs. Clemens, 44 Mo., 540.)

II. A court of chancery will always enjoin to prevent the taking of land without just compensation. (Hil. Inj., 2 Ed., 566. § 25, and 520, § 23; Sederner vs. The Norriston, etc., Turnp. Co., 23 Ind., 623; Smith's Com. Constr., 473-476, and authorities cited.)

III. It is now a well settled principle of equity jurisprudence, that the remedy by injunction is allowable against a mere trespasser, when the injury sought to be averted goes to the destruction of the inheritance, or is otherwise irreparable in its character. (Echelkamp vs. Schrader, 45 Mo., 505; Weigel vs. Walsh, 45 Mo., 560.)

HOUGH, Judge, delivered the opinion of the court.

This was a proceeding by injunction to restrain the defendant, who was a road overseer in De Kalb county, from occupying a portion of the plaintiff's land, lying in defendant's district, and laying out a public road thereon, and from tearing down his fences, destroying his fruit and ornamental trees, and filling up his well for that purpose.

The road commissioner had laid out the road along the half section line, which was the eastern boundary of plaintiff's land, and on February 4th, 1868, made report thereof, together with a plat showing the location of the road. Whereupon the County Court, on the same day, ordered the road overseer of the district, through which said road ran, to proceed to open the same as required by law.

In May, 1871, the County Court made another order for keeping open and removing obstructions from said road, and defendant was acting under this order at the time plaintiff made application for injunction. There was no relinquishment of the right of way by the plaintiff, or his grantors, and there was no assessment of damages by the commissioner, as required by law, and no money had ever been tendered to or deposited for the plaintiff or his grantors, as damages or compensation for the strip of land proposed to be taken.

A temporary injunction was granted and afterwards at the hearing, a final judgment was rendered, making the same perpetual, from which defendant has appealed to this court.

It will not be necessary to notice the testimony as to the amount of land proposed to be taken, and the true position of the half section line, with reference to the plaintiff's fences and improvements, as the judgment of this court will be governed by other considerations.

If the land proposed to be taken was within the limits of the road as located, the rights of the parties will depend upon the force and effect of the proceedings, had for the purpose of opening the road; and if it was not within said limits, then the defendant clearly had no right to appropriate it for the purposes of a public highway.

It is urged by the appellant that the order, appointing an overseer to open a road, is sufficient to protect him, as to acts done in good faith in opening the road, from liability as a trespasser on account of any irregularity in the proceedings previous to the order; and that, therefore, an injunction will not lie to restrain him from the threatened or attempted execution of permanently injurious acts, when such order exists.

I do not think so. The very fact that he could not be sued at law, would be a good reason for affording this remedy to prevent the unlawful commission of injuries of a permanent and...