Cook v. Ferbert
| Decision Date | 28 June 1898 |
| Citation | 46 S.W. 947,145 Mo. 462 |
| Parties | COOK et al. v. FERBERT. |
| Court | Missouri Supreme Court |
Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.
Petition by Andrew J. Cook and others for an injunction against David Ferbert. From a judgment and decree granting the injunction, defendant appeals. Reversed.
Vinton Pike. for appellant. Vories & Vories, for respondents.
This is an injunctive proceeding by plaintiffs against defendant to restrain him from obstructing a neighborhood road. In 1885, and prior thereto, plaintiffs and defendant resided in the same neighborhood in Buchanan county, Mo., and, having no other means of egress and ingress to his premises, Cook claims to have purchased from the defendant, Ferbert, to be used by himself and co-plaintiffs as a road or way of travel north and south, a strip of ground 10 feet wide off of the west side of Ferbert's land. The consideration to be paid for this strip or roadway was the erection of a fence, on the east line thereof, of mulberry posts and wire. Cook built the fence according to the contract, with the exception of about 10 rods at the south end of the strip, when he stopped, at Ferbert's request. The road was used from this time until about the time of the commencement of this suit, when defendant continued the fence down the east line of the 10-foot strip, and within a short distance of the south end, and then turned it, and crossed the strip, and connected the fence with the opposite fence below that point, and near the corner of the road, and put in a gate, which he locked, thus obstructing the road. No deed was ever made, although frequently demanded. The court made a special finding of facts substantially as herein stated, and entered a judgment and decree enjoining and restraining defendant, his servants, agents, and employés, from obstructing or in any way interfering with the use of said strip of ground by said Cook as a road or right of way, and for costs. Defendant appealed.
The first question lying at the threshold of this litigation is whether the strip of land used by plaintiffs and others as a roadway, and fenced by Cook, was purchased by him from defendant, or whether it was merely the purchase of the right to use the strip as a roadway during an...
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