Eckerle v. Perry
| Decision Date | 06 July 1927 |
| Docket Number | No. 4206.,4206. |
| Citation | 297 S.W. 424 |
| Parties | ECKERLE et al. v. PERRY |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Phelps County.
Suit for injunction by George Eckerle and others against Fred C. Perry, County Highway Engineer of Phelps County. Judgment for defendant, and plaintiffs appeal. Reversed and remanded, with directions.
Lorts & Breuer and Homer Rinehart, both of Rolla, for appellants.
John A. Watson and A. B. Holmes, both of Rolla, for respondent.
This is an injunction suit brought by the owners of certain real estate located inside the corporate limits of the city of Rolla to restrain the county highway engineer of Phelps county, the defendant herein, from removing a fense or entering upon said tract of land. A temporary injunction was granted. The petition alleges, in substance, that plaintiffs are the owners of east half of lot 29 in Railroad addition to Rolla; that defendant is the county highway engineer; that for more than 50 years the has been used and established across said land, but no claim or adverse user has ever been asserted to a certain strip of the land fenced by plaintiffs which constitutes a part of said east half of lot 29; that defendant is about to tear down and remove said fence, etc., and praying that he be enjoined.
The answer admitted plaintiffs were owners of all the east half of lot 29 except that portion used as a public road, which road included the strip of land in question. Defendant further sets up that a public road 60 feet in width has been established over said land; that "said road so located and constructed had remained, was used, worked, and public money spent thereon for a period of more than 35 years last past"; that plaintiff in fencing the strip of land committed a trespass and defendant was authorized, by order of the County Court, to remove same. Upon trial judgment went for defendant, and the temporary injunction theretofore granted was dissolved. Plaintiff has appealed.
A number of errors are assigned, but we find it necessary to consider only the first assignment in disposing of this case. The answer sets up and the evidence shows that the only right the public had in and to the so-called St. Louis-Rolla road across plaintiff's land was by prescription or user for the statutory period. When the public acquires a right to a roadway by prescription that right extends only to the land actually used for road purposes. It is entirely different...
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Roth et al. v. Hoffman et al., 23274.
...Mo. 379; Buschmann v. St. Louis, 121 Mo. 523; Road Dist. v. Bueker, 256 S.W. 98; Hall v. Flagg Special Road Dist., 296 S.W. 164; Eckerle v. Perry, 297 S.W. 424; Gilleland v. Rutt, 63 S.W. (2d) 199; Mulik v. Jorgaman, 37 S.W. (2d) 963. (9) Davis v. Lea, 293 Mo. 660-672; St. Louis v. Clegg, 2......
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Roth v. Hoffman
...Mo. 379; Buschmann v. St. Louis, 121 Mo. 523; Road Dist. v. Bueker, 256 S.W. 98; Hall v. Flagg Special Road Dist., 296 S.W. 164; Eckerle v. Perry, 297 S.W. 424; v. Rutt, 63 S.W.2d 199; Mulik v. Jorgaman, 37 S.W.2d 963. (9) Davis v. Lea, 293 Mo. 660-672; St. Louis v. Clegg, 289 Mo. 321; Mose......
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...the date of its establishment, cannot be acquired by adverse possession. Baughman v. Faulwell, 156 Mo.App. 227, 137 S.W. 627; Eckerle v. Perry, 297 S.W. 424; St. Louis v. Missouri Pac. Ry. Co., 114 Mo. 13, S.W. 202; Wright v. City of Doniphan, 169 Mo. 601, 70 S.W. 146; Brown v. C. B. & K. C......
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... ... v. Hatfield, 135 Am ... St. Rep. 903, et seq. (3) A right obtained by user extends ... only to the land actually used and no more. Eckerle v ... Perry, 297 S.W. 424; District of Columbia v. Lee ... Robinson et al., 45 L.Ed. 440; Hall v. Flagg Special ... Road Dist., 296 S.W. 164; ... ...