Cox v. Tipton

• Decision Date: 15 June 1885
• Citation: 18 Mo.App. 450
• Parties: THOMAS C. COX, Respondent, v. JERRY H. TIPTON, Appellant.
• Court: Kansas Court of Appeals

18 Mo.App. 450

THOMAS C. COX, Respondent, v. JERRY H. TIPTON, Appellant.

Court of Appeals of Missouri, Kansas City.

June 15, 1885

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, J.

Reversed and remanded.

Statement of case by the court.

On November 6, 1882, plaintiff filed in the county court of Audrain county, Missouri, the following petition, to-wit:

" To the County Court of Audrain county, State of Missouri:

Thomas C. Cox states that he is an inhabitant of Audrain county state of Missouri. That he owns a tract of land in said county, to-wit: The west half of the northeast quarter of section 34, township 51, range 5, west, upon which he resides with his family at this time, and that no public road passes over or touches said land. He states that there is an established public road one-fourth of a mile due south of the southeast corner of his lands, at the northwest corner of the southeast quarter of the southeast quarter of section 34 township 51, range 5, west. That he has no passway from said lands except over the lands of others. He, therefore, prays the court for an order establishing a private road, twenty feet in width, over the lands of Jerry Tipton, from the said southeast corner of the west one-half of the northeast quarter of section 34, township 51, range 5, west, to the northwest corner of the southeast quarter of the southeast quarter of section 34, township 51, range 5, west. That said road prayed for is one of great necessity, and indispensable to petitioner, as he has no outlet to market, to church, to postoffice, or to school, and that the road prayed for is the nearest, most direct, and suitable. He, therefore, prays the court to appoint commissioners to view said road and assess the damages to said Jerry Tipton."

The county court found for defendant, and the plaintiff appealed to the circuit court.

On the trial in the circuit court, the plaintiff offered evidence tending to prove the averments of the petition. The defendant, to sustain the issues on his part, offered evidence tending to show that he was the owner of the north half of the southeast quarter of section 34, township 51 range 5, west, in Audrain county, Missouri, containing eighty acres, and that he has occupied it as his home, and he owned no other lands. That on the east and south sides of his farm there was a public road. That the road petitioned for by plaintiff would run through the center of defendant's farm dividing it into two forties. That from defendant's house and barn east to the public road, the distance was but one fourth of a mile, on a line between two forties owned by different parties.

Defendant further offered evidence showing that the lands lying northeast of plaintiff's land, and from northeast corner of plaintiff's farm to the public road, a fourth of a mile east of his land, were open public commons, and were not and never had been fenced. That from the northeast corner of plaintiff's said lands out east to a public road, and also, from plaintiff's lands out north to a public road, there was a road open and in use. That said road had for twenty consecutive years prior to the commencement of this suit, been open, and generally used and traveled by the public as a road. That the road is still open and traveled. That plaintiff and the prior owners of his said land had used said road generally as a road in going to and from plaintiff's farm for twenty years or more prior to the commencement of this suit.

Plaintiff, in rebuttal, further offered evidence tending to show that the road from the northeast corner of plaintiff's land to the public road, and the road from his land north to a public road, were never recognized by the county court or the road overseers as public roads, but were neighborhood roads. And, further, that the owner of the open lands northeast of plaintiff's land was threatening to fence these open lands which, if fenced, said roads running from plaintiff's lands to the public road would also be fenced across and closed, and plaintiff would then have no road from his lands out to a public road.

The only declarations of law asked were the following, asked by the defendant, which were refused:

" 1. Unless it appears from the evidence that plaintiff's lands are surrounded, or inclosed, or cut off from a public highway by the lands of another, and that he has no road, private or otherwise, to pass to and from his land, and that the surrounding land owner or owners refuse to allow him a convenient and practical way to and from his land, then there can be no " way of necessity" and the verdict must be for the defendant.

2. If from the evidence it appears that when this suit was instituted there was a road, open and in use, touching plaintiff's land, which was and had been used and traveled by the public for a period of ten years or more prior thereto, without objections on the part of the owner of the land over which said road passed, then plaintiff is not entitled to the road petitioned for, and this verdict must be for the defendant.

3. If the road running from the public road east of plaintiff's land to the northeast corner of plaintiff's land, thence north to a public road, at the commencement of this suit, had been generally traveled and in use as a road by the public for a period of ten years or more, then said road became and was a highway, and the verdict must be for the defendant."

Judgment was rendered in favor of plaintiff. The case is here on appeal by defendant.

FORRIST & FRY, for the appellant.

I. Respondent's petition, inasmuch as it does not affirmatively pray for the road to be opened and established as a " way of necessity," in specific words, conferred no jurisdiction on the court, and the judgment should be reversed and the petition dismissed. Colville v. Judy, 73 Mo. 651; Constitution of Mo., art. II, section 20. This may be taken advantage of at any stage in the case. City of Hopkins v. K. C., St. Jo. & C. B. R. R. Co., 79 Mo. 100.

II. Our statutes provide but for two kinds of roads: public roads and private " " ways of necessity." Public roads are established by an exercise of eminent domain, but private ways, provided for by section 6973 Revised Statutes of Mo., 1879, under article II, section 20 of our present state constitution (1875), are established not by an exercise of eminent domain, but is a proceeding to take private use, under a special constitutional provision. It is a proceeding in invitum " against common law and against common right," which has always been strictly construed. Colville v. Judy, 73 Mo. 651; Mo. Const. (1875), art. II, sect. 20; Ellis v. Pac. R. R., 57 Mo. 200; Jefferson Co. v. Cowran, 54 Mo. 234; 52 Mo. 585; 79 Mo. 100.

III. A " way of necessity" is the right in the owner of the land to access thereto, when the land is totally inaccessible, unless the owner is permitted to use the adjoining lands as a means of approach. It appears here that respondent has other means of approach. Same authorities; also, Tiedeman on Real Prop., sect. 609; Mills on Em. Domain, sect. 29.

IV. Respondent relies on Snyder v. Warford (11 Mo. 513). It was decided under the statutes of 1845, ch. 183 p. 1074, and art. XIII, sect. 7, of Mo. Const. of 1820. This case is under art. II, sect. 20, of constitution of 1875, and sect. 6973, p. 1373, of Revised Statutes of Missouri, 1879. The statute of 1845 clearly defines a " way of necessity," and the court in Snyder v. Warford says, correctly, that this statute is constitutional. If the section of the present statute (6973), Revised Statutes of Missouri, (1879), is construed for a way, not being a " way of necessity," it is unconstitutional, as taking private property for private use. Dicky v. Tennison,...