Chandler v. Reading

• Decision Date: 04 February 1908
• Parties: CHANDLER v. READING et al.
• Court: Missouri Court of Appeals

107 S.W. 1039

129 Mo. App. 63

CHANDLER v. READING et al.

St. Louis Court of Appeals, Missouri.

February 4, 1908.

1. APPEAL AND ERROR—RECORD — QUESTIONS PRESENTED FOR REVIEW—INSTRUCTIONS.

Where none of the evidence heard on the trial is contained in the record or in the abstracts filed, the appellate court cannot consider the instructions given and refused by the court.

2. PRIVATE ROADS—ESTABLISHMENT.

Rev. St. 1899, § 9459 [Ann. St. 1906, p. 4344], providing for the establishment of private roads, must be strictly construed.

3. SAME—NECESSITY.

To authorize the establishment of a private road, it must appear that the road proposed is a way of necessity.

4. SAME—PROCEEDINGS—FINDINGS.

Rev. St. 1899, § 9459 [Ann. St. 1906, p. 4344], provides that if any inhabitant of this state shall present a petition to the county court of the proper county, setting forth that he or she is the owner of land, or that no public road passes through or touches it, and asking for the establishment of a private road, and shall describe the place where said road is desired and the width desired, the court will appoint three disinterested commissioners to view the premises, and to mark out the road and to assess damages to the owner or owners of the land through which it will pass. Held, that jurisdiction attached by the filing of the petition and due service of notice, and that it was immaterial that the court did not find before or at the time of appointing the commissioners that the proposed road was one of necessity, or that petitioner was an inhabitant of the county.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Proceedings by Daniel C. Chandler to establish a private road over the lands of Lois E. Reading and others. From a judgment establishing the road, defendants appeal. Affirmed.

Ball & Sparrow, for appellants. J. W. Reynolds and E. W. Major, for respondent.

BLAND, P. J.

The proceeding was to establish a private road in Pike county, Mo., leading from plaintiff's land over the lands of defendants to a public road. The proceedings in the county court resulted in the assessment of damages and a judgment of the county court establishing the road. Defendants appealed to the circuit court, where, on a trial anew, damages were assessed by a jury and the road established by the judgment of the court, from which judgment defendants appealed to this court.

None of the evidence heard on the trial is contained in the record or in the abstracts filed by defendants. The instructions given and refused by the court are set out in the abstracts, but, as the evidence is not before us, we cannot consider the instructions, so the record proper is all there is here for review. The petition to the county court for the private road is as follows (omitting caption): "To the Honorable County court of Pike County, Missouri: Plaintiff, Daniel C. Chandler, states that he is an inhabitant of Pike county, Missouri; that he owns the east half of the southeast quarter, also the southwest fourth of the southeast quarter and the southeast quarter of the northeast quarter, all in section thirty-five, in township fifty-five (55) north, range three (3) west, in Pike county, Missouri, upon which he now resides with his family; that no public road passes over or through or touches said land. He states that there is an established public road one-half mile eastward from his said land; that he has no outlet or passway from his home or premises aforesaid, except through gateways and over the lands of others. He therefore asks this court for an order of record establishing a private road twenty (20) feet in width over the lands of Luther F. Sparks and Lois E. Reading, beginning at a point in the center of a road, 14.80 chains north of the southeast corner of section number thirty-five (35) and the southeast corner of section thirty-six (36), both in township fifty-five (55) N., R. three (3) west, in Pike county, Missouri; thence south, over the land of Luther F. Sparks, sixty-nine and one-fourth (69¼) degrees east, 7.50 chains, to a point; thence south seventy-six and one-fourth (76¼) degrees east, 13.09 chains, to a point on the Sparks line; thence south, over the land of Lois E. Reading, eighty-two degrees east, 7.50 chains, to a point; thence south eighty-four (84) degrees east, 12.25 chains, to a point on the public road. He further states that said road here prayed for is one of great necessity and indispensable to petitioner as he has no outlet to church, to post office, to market, or to school, and that the road here asked for is most direct and suitable that could be selected and is now and has been for many years the location of a roadway which passes through gates from petitioner's said land over the premises of the defendants to the said public road. Plaintiff also asks this court to appoint three commissioners to view the location of the road here asked for, and assess the damages to defendants as provided by law." A proper notice attached to a copy of the petition was timely served on each defendant, notifying him that the petition would be presented to the county court for action on the 16th day of February, 1907. On the day named in the notice the county court took up the petition, and, after hearing the evidence, made an order reciting the averments of the...