Hall v. Flag Special Road Dist.
| Decision Date | 09 June 1927 |
| Docket Number | No. 4115.,4115. |
| Parties | HALL v. FLAG SPECIAL ROAD DIST. et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Lawrence County; Chas. L. Henson, Judge.
Suit for injunction by Jennie Hall against the Flag Special Road District and another. From a judgment for insufficient relief, plaintiff appeals. Affirmed.
Gideon & Gideon, of Forsyth, and Moore & Moore, of Ozark, for appellant.
L. F. Bearden, of Branson, and R. C. Ford and D. F. McConkey, both of Forsyth, for respondents.
Plaintiff filed her bill seeking to enjoin defendants from constructing a public road across her land. The suit was filed in Taney county, and on change of venue was transferred to the Lawrence county circuit court. The material allegations of the petition are, substantially, that plaintiff is the owner of certain real estate described; that defendant road district has laid out its said road over said land belonging to plaintiff, and has already employed its codefendant to cut down a strip of timber 60 feet wide across the same; that defendants threaten and will, unless restrained, construct its said road across said land without the consent of, and to the irreparable damage of, plaintiff; that no proceedings have been taken by defendant as required by law for ascertaining the payment of damages to plaintiff; that defendants are taking the best land belonging to plaintiff without authority of law; that she has never given any right of way for said road, and her property is being taken without due process of law; that plaintiff has no adequate remedy at law in the premises. Then follows a prayer that defendants be enjoined from constructing said road until proper proceedings have been taken by law and plaintiff's damages ascertained and paid.
Defendants' answer was to the effect that the road in question was established by an order of the county court more than ten years before the filing of the petition, and has been continuously open and used as a public road since Agust 8, 1908, and and that public money and public work has been expended on said road each year since the opening thereof; that the public claims prescriptive rights thereto by reason of it having been laid out by an order of the county court, and by reason that it has been used, and public money expended thereon, for more than ten years; that the road that plaintiff has been guilty of lathes, and has an adequate remedy at law.
Upon the issues thus raised the trial court decreed that "the road sought to be enjoined is a legally established road, 40 feet in width at the present location, when suit was filed, and that defendants other than Willis Licklider be permanently enjoined from using more than 40 feet wide for such road." Plaintiff has appealed.
Respondents have raised the point that plaintiff was not entitled to recover on the face of the pleadings, as she had an adequate remedy at law. Since the court sustained the injunction in so far as defendants might use more than a space 40 feet wide for said road, and no exceptions were saved and no appeal taken therefrom, defendants are hardly in a position to raise the question at this time. However that may be, the petition stated a good cause of action for injunctive relief. The petition reasonably shows on its face that the injury threatened is irreparable, as that term is defined by our courts. McPike v. West, 71 Mo. 199; McKinzie v. Mathews, 59 Mo. 99; Graden v. Parkville, 114 Mo. App. 527, 90 S. W. 115.
The answer in this case alleges that the road in question is a public road by reason of the order of the county court and also by prescription. If it be one, under the facts in this case, it certainly cannot be the other. Moreover, if the only right the public has in the road is as a result of adverse user for the statutory period, then such right is limited to the traveled or used portion of the road. California Special Road District v. Bueker (Mo. App.) 282 S. W. 71; State v. Thompson, 91 Mo. App. 329. There is no pretense that the public actually used a strip 40 feet in width, but, on the Contrary, the evidence indicates the portion actually traveled was much less than 40 feet. It follows that the decree recognizing an established road 40 feet in width cannot be sustained on the theory of prescription, but, if upheld at all, it must be as a result of the proceedings in the county court for the establishing of said public road. Appellant's able counsel in their brief state that "beyond cavil" this case was decided upon the theory of...
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Roth et al. v. Hoffman et al., 23274.
...by the public. Vassen v. Dantel, 116 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, 2......
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Roth v. Hoffman
...is as a result of adverse user for the statutory period, then such right is limited to the traveled or used portion of the road. Hall v. Road Dist., 296 S.W. 164, l. c. State v. Thompson, 91 Mo.App. 329. (3) The evidence in this case does not support appellant's plea of estoppel. It is held......
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City of Higginsville ex rel. and to Use of Kasco, Inc. v. Alton R. Co.
... ... the issuance of the new special tax bills against the tracts ... of land in question ... constitute a street forty feet wide. Hall v. Flagg (Mo ... App.), 296 S.W. 164, 165. (6) The ... other parties having control or charge of said road or ... street, shall notify such corporation of the ... [ Hall v. Flagg Special Road Dist. et al., 296 S.W ... 164, 165.] ... ...
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City of Higginsville, Mo., v. Alton Railroad Co.
...all, is at most limited to the traveled and used portions of the roadway and did not constitute a street forty feet wide. Hall v. Flagg (Mo. App.), 296 S.W. 164, 165. (6) The application of the "front foot" rule to the tracts in question, shows not only the injustice of the purported procee......