Crenshaw v. Snyder

• Decision Date: 27 June 1893
• Citation: 22 S.W. 1104,117 Mo. 167
• Parties: CRENSHAW et al. v. SNYDER.
• Court: Missouri Supreme Court

22 S.W. 1104

117 Mo. 167

CRENSHAW et al. v. SNYDER.

Supreme Court of Missouri, Division No. 2.

June 27, 1893.

OPENING HIGHWAY — VALIDITY OF ORDER — ACTION AGAINST OVERSEER — LIABILITY.

1. An order of the county court directing the road overseer to open a road through certain land in his district, in which certain minors have an interest, is not void on its face because it contains a recital that the right of way through such land has been relinquished, or because it fails to designate the time within which the owners shall give possession.

2. Where a proper petition for opening a road is filed and due notice given, the owners of the land through which the road is sought to be opened cannot, after allowing a final judgment by default in the proceedings, without obtaining their damages, sue the overseer, who is executing the order of the court to open such road, on the ground that the order is void because it deprives the owners of their property without due process of law.

Appeal from circuit court, Greene county.

Action by Anne Crenshaw and others, minors, by Fannie Crenshaw, guardian and curator, and Susanna Crenshaw, against Phillip Snyder. Judgment for defendant. Plaintiffs appeal. Affirmed.

The other facts fully appear in the following statement by GANTT, P. J.:

The petition in this case contains two counts. The first count states a cause of trespass quare clausum fregit, in wrongfully entering upon the N. ½ of S. ½ of section 2, township 28, range 22, and N. ½ of S. ½ of section 3, and N. ½ of S. E. ¼ of section 4, all same township and range, in which lands it is alleged plaintiffs have each one-twelfth interest, and are in possession, and in cutting trees, and destroying fences, and rails, to plaintiff's damage in sum of $3.75. The second count avers the cutting of the timber and removal offences, and the threat to continue so doing by defendant, and his insolvency, and prays an injunction. The answer was — First, a general denial. Second. That defendant, at the time he was charged with entering on said land, was road overseer of the road district embracing said lands, and that as such road overseer, under and by virtue of an order of the county court of Greene county, Mo., directing him to open the same, he did so open a public road by entering on a strip of land 50 feet wide, beginning at the N. E. corner of S. E. ¼, section 2, township 28, range 22, on the Wilderness road; thence west along the half section line dividing sections 2 and 3, and to the middle of section 4, and on the Fayetville road; and that under said order and entry he removed obstructions from said strip and road. The third defense stated that one Bently, as administrator of L. A. D. Crenshaw, plaintiffs' ancestor, had been ordered to sell lands of said Crenshaw, and that in this order this strip on which defendant entered had been by the probate court set aside and reserved as a public road. The fourth defense pleaded that in a partition suit between the heirs of L. A. D. Crenshaw the commissioners reported that, owing to the great extent of the lands belonging to the parties to the said suit, in Greene county, and the manner in which the lands lay, it was impossible to divide the lands without the establishment of some new roads, and that they had established a public road the entire distance between sections 2 and 3 and 10 and 11, 40 feet wide, and that the road between sections 2 and 3 included 40 feet of the strip of 50 feet on which the defendant had entered, and that this report and decree had been confirmed by said court; and on account of the matters pleaded said injunction should not be made perpetual. Plaintiffs filed a replication to the same, being a general denial. A temporary injunction was granted.

At the trial the evidence by plaintiffs showed that Fannie Crenshaw had been by the probate court of Greene county, Mo., appointed guardian and curator of all the plaintiffs except Susanna; that plaintiffs each owned one-twelfth interest in the land described in the petition, which was farm lands, 4 miles south of Springfield, and the other children of L. A. D. Crenshaw the remaining interests; that the plaintiffs were in possession of said land, and that the defendant had entered on a strip 50 feet wide, lying on the south side of the line dividing sections 2 and 3 in two equal parts by running a line east and west, cut down and removed trees and some fencing, and that this 50-foot strip would include one or two graves in a family burial ground on the land; that plaintiffs had rebuilt the fences, and that they had been torn down again and rebuilt, and that defendant had threatened to tear down and remove the fences on this 50-foot strip; and that, if these fences were removed, it exposed plaintiffs' land to the inroads and invasion by stock, which was running at will and unconfined upon the roads and commons adjoining these lands, which were in cultivation, and contained growing crops. Plaintiffs' evidence also tended to establish the amount of damages averred in this petition. On the trial, defendant offered in evidence the following order of the county court of Greene county, of record in Book K, page 263, and made November 8, 1887: "In the Matter of Road Petitioned for by L. H. Murray et al. Ordered opened. The road commissioner having filed his report of the review of a road petitioned for by L. H. Murray et al., commencing at the northeast corner of the southeast quarter of section 2, township 28, range 22, on the county road commonly known as the `Wilderness Road;' thence west along the half section line dividing sections 2 and 3 to middle of section 4, and ending at the intersection of the county road commonly known as `Fayetville Road,' — all of said road to be on the south side of said half section line; and it appearing to the satisfaction of the court that said petition was signed by at least twelve freeholders of the township, three of which, to wit, J. E. Putnam, I. N. Brockman, and J. P. Edwards, reside in the immediate neighborhood of the road; and it further appearing to the court that due legal notice has been given, and the right of way has been relinquished: It is therefore ordered by the court that said road be, and is hereby, established as a public road, and ordered open of the uniform width of fifty feet, as above described." Defendant, in the course of his testimony, said: "Question State, if you entered on the land charged in this petition, what position you held at the time, and in what capacity you acted. Answer. I held the position of road overseer at the time I entered upon the land, and I was acting as such. The clerk of the court delivered this order to me. After I got that order, I met Mrs. Crenshaw one day, and I told Mrs. Crenshaw I was going to open the road; that I had gotten an order from the county court. She says to me, `I wish you wouldn't cut that front hedge down that is along the Wilderness road until I get my stock pastured.' I told her I would do so. I would cut the other hedges down, and leave that till towards spring, which I did. So, two or three days after that, I went and notified the hands, and we went to work." Defendant offered in evidence a petition and decree in a partition suit entitled "Fannie Crenshaw et al. vs. Walter L. Crenshaw et al.," in which partition suit the plaintiffs here were likewise plaintiffs, appearing in that suit by their guardian. The petition was in ordinary form, setting forth interest of parties in the land, capacity of parties to the suit, but said nothing about laying out roads or highways, and contained neither allegations nor prayers as to the roads through the lands. The decree found the respective interests of all parties, and appointed commissioners, but contained nothing whatever about roads or highways through the land. The commissioners made a report dividing the land, and submitted with their report a map or plat showing a road on strip entered upon by defendant. The report, among other things, contained a reference to the road as follows: After setting out the lands described in the petition in this suit to plaintiffs, and certain other lands to other parties, it proceeds: "Subject, however, to and with the easement of the roads and highways hereinafter mentioned, laid out, and established. * * * Your commissioners further report that on account of the great extent of the lands in said Greene county, and the way in which they lie, it was impossible to advantageously divide the same as directed by the court without the establishment of some new roads through them, and we have accordingly established and laid out the following road, to wit: `Also a public road forty feet wide along the entire north line of the south half of section two and the south half of section three,'" — which embraced north 40 feet of the 50-foot strip entered upon by the plaintiff. Defendant also offered in evidence the judgment of the circuit court of Greene county, Mo., confirming said report. This was simply a judgment to that effect, and made no specific reference to the roads. To the introduction of this petition, answer, decree report, and confirmative decree the plaintiffs objected, for the reasons that the proceedings shown thereby occurred since the institution of this action, and because the circuit court, as against these plaintiffs, had no power to...