Harris v. Township Board

• Decision Date: 24 May 1886
• Citation: 22 Mo.App. 462
• Parties: FULLER HARRIS, Respondent, v. TOWNSHIP BOARD ET AL., Appellants.
• Court: Kansas Court of Appeals

22 Mo.App. 462

FULLER HARRIS, Respondent, v. TOWNSHIP BOARD ET AL., Appellants.

Court of Appeals of Missouri, Kansas City.

May 24, 1886

APPEAL from Caldwell Circuit Court. HON. JAMES M. DAVIS, Judge.

Affirmed.

Statement of case by the court.

This action was begun Aug. 25, 1882. The object was to obtain a restraining order. The petition stated that plaintiff was owner of the northeast quarter of the northwest quarter of section 10, in Gomer township; that the defendant, McMillan is overseer of road district No. 2, in which the land is situated; that the township board of Gomer township about May 10, 1882, ordered McMillan " to open a road over twenty feet of plaintiff's said land, on the north side thereof to be used and appropriated to public use; " that McMillan threatens to, and is about to proceed, under said order, to open such road, to tear down fences, destroy crops appropriate the land for road purposes, and do irreparable damages; that the land had never been condemned for road purposes, nor had the owners granted or dedicated a right of way over the same; that if defendants be not restrained his damages will be irreparable. It then prays for an injunction.

A temporary injunction was granted, and made perpetual, on trial, restraining defendants from opening the road over his land. The answer was a general denial, except as to the allegations that McMillan was overseer, and that Gurley, Nichols, and Kinney are township board.

CROSBY JOHNSON, for the appellant.

I. There is no averment or proof that defendants were insolvent. Hence injunction will not lie unless the injuries done are of such a character that an action for damages would not have afforded full legal relief.

II. The record does not show that the condemnation proceedings were void; but they are undoubtedly good as far as they go.

III. The fact of township organization is not sufficiently alleged. The cases say that it must allege that it is a municipality.

IV. The court erred in finding against the township. Without any evidence to sustain it, it found the township guilty of the charges made in the petition.

O. J. CHAPMAN, for the respondent.

I. The non-user by the public for a period of ten years, continuously, of any public road, under the statute, is an abandonment of the road. Sect. 6987, Rev. Stat.

II. The appropriation to public use of plaintiff's land would have been an irreparable injury; it would have amounted to an extinguishment of the estate. Carpenter v. Gresham, 59 Mo. 247; Neigel v. Walsh, 45 Mo. 560; Echelkamp v. Schroder, 45 Mo 505.

III. The taking of private property for highways without any tender of compensation or assessment of damages, when required by law, and not waived by the party, affords good ground for equitable relief. High on Injunctions, sect. 400.

IV. If the facts alleged show the damage would be irreparable, then insolvency of defendant need not be alleged. McPike v. West, 71 Mo. 199.

V. A mere trespasser may be enjoined, when the injury goes to the destruction of the inheritance, or is otherwise irreparable, so as to permanently impair the enjoyment of the property in the future. Echelkamp v. Schroder, 45 Mo. 505; Ibid, 560; Wahle v. Reinbach, 76 Ill. 326.

ELLISON J.

There was evidence in this case sufficient to sustain the finding of the court below, and we will not disturb the...