Hill v. Hopson

• Decision Date: 31 May 1909
• Citation: 221 Mo. 103,120 S.W. 29
• Parties: HILL v. HOPSON, Road Overseer, et al.
• Court: Missouri Supreme Court

120 S.W. 29

221 Mo. 103

HILL v. HOPSON, Road Overseer, et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1909.

1. COURTS (§ 231) — APPELLATE JURISDICTION — TITLE TO LAND.

In cases of pure trespass upon lands, the "title" to real estate is not so involved as to confer jurisdiction on the Supreme Court under Const. art. 6, § 12 (Ann. St. 1906, p. 218), though the title may be incidentally involved, and must be shown on the trial.

2. COURTS (§ 231) — APPELLATE JURISDICTION — "TITLE TO REALTY."

A suit merely to restrain a threatened trespass by a road overseer who pleads title in the county by dedication of the road as a defense does not involve "title" to realty within Const. art. 6, § 12 (Ann. St. 1906, p. 218), so as to give the Supreme Court jurisdiction on appeal.

3. COURTS (§ 231) — APPELLATE JURISDICTION — CHARACTER OF THE PARTIES.

A road overseer and members of the county court are not "state officers" within the Constitution so as to confer jurisdiction on the Supreme Court on appeal in a case wherein they are parties.

Appeal from Circuit Court, St. Francois County.

Action by F. W. Hill against Ab Hopson, road overseer of road district No. 14, and others. From a judgment for defendants, plaintiff appeals. Cause transferred to St. Louis Court of Appeals.

Edward A. Rozier, for appellant.

GRAVES, J.

The abstract of record reveals the fact that no bill of exceptions was filed in this case, but shows an appeal in due form from a judgment dissolving a temporary injunction. The cause is briefed by the plaintiff, the appellant here, but no brief by defendants, respondents here. The case, if properly here at all, is therefore here upon the pleadings and judgment, and not otherwise. The petition, which was verified by affidavit, thus reads: "Plaintiff for a cause of action states that he is the owner in fee simple of a tract of land containing about nine acres in United States survey No. 3099, and situate in what is known as East Bonne Terre, in Perry township, St. Francois county, Mo., being the property described in the deed from Anthony La Grave dated ____ day of ____, and recorded in Book ____, the southwestern portion of said lot being bounded on the south by the public road known as the Big River & French Village Public Road; on the west by the public road known as the Valle Mines & Hazel Run Public Road; on the east by the lot of one John Valle. Plaintiff further states that Ab Hopson is the duly elected, qualified, and acting road overseer of road district No. 14 of St. Francois county, Mo., and that Chris T. Tullock is the duly elected, qualified, and acting presiding judge of the county court of St. Francois county, Mo., and that Allen Hill and O. J. Mayberry are the duly elected, qualified, and acting associate justices of said county court. Plaintiff further states that he resides in the southwestern portion of said nine-acre lot, and occupies the same with a residence and outbuildings, and has a garden thereon together with an orchard of growing fruit, and that the same is inclosed by a good and substantial fence, and that on the south side of said lot said fence reaches up to the west side of the lot of the said John Valle, and that the said lot, together with the garden thereon and fruit trees, are now fully protected by said fence from depredation and injury. Plaintiff further states that defendant Charles T. Tullock, Allen Hill, and O. J. Mayberry, acting as the county court of St. Francois county, Mo., at the August term, 1905, of said court, made an order of record directed to codefendant Ab Hopson, as road overseer, directing, ordering, and requiring the said Hopson to open upon the lot of ground so owned by plaintiff a street or alley immediately joining the lot of said John Valle, which said street or alley was so directed to be opened with a width of 20 feet and a length of about 243 feet. Plaintiff further states that the said street or alley so ordered to be opened is of no public utility, and the opening thereof can only be intended for the private benefit of said John Valle, and cannot be used by the general public because said alley does not connect with any other street or road, and is not of sufficient width to permit the turning of teams therein. Plaintiff further states that said proposed street or alley is not 30 feet wide. Plaintiff further states that said proposed street or alley is not a public road or highway, nor has there ever been presented to the county court of St. Francois county any petition asking the location and opening of a street, alley, highway, or public road at said point, nor has the county court of St. Francois county ever caused a plat to be filed thereof, nor has the said proposed street or alley ever been used by the public as a street or alley, nor has there ever been expended any public money or labor thereon at any time, nor has said street or alley ever been established as a public road according to any provisions of law, nor did said county court have any lawful authority to order the opening of a road or highway less than 30 feet wide. Plaintiff further states that said Ab Hopson, acting under the purported authority of said order of said county court of St. Francois county, Mo., has threatened and is about to enter upon said premises, and has so notified this plaintiff in writing of his intention to at once enter upon said premises, and tear and throw down the fences of plaintiff and open said street or alley 20 feet wide and 243 feet long, and to maintain such opening, and thereby expose all the property of plaintiff to the depredation of stock and to the injury of plaintiff to his said orchard and garden. Plaintiff states that he has no adequate remedy at law, and, if defendant Hopson is permitted to tear down said fence and expose plaintiff's property to depredation, that his loss will be irreparable, and cannot be adequately compensated by an action at law. Plaintiff, therefore, asks that this court issue a temporary restraining order to prevent defendants from carrying their threatened act into effect, and that a temporary injunction be issued by this court and that on a hearing herein that defendants be permanently enjoined from enforcing the said order and that defendant Ab Hopson be permanently enjoined and restrained from tearing down the fences of this plaintiff and that defendants all be restrained from opening the said street or alley."

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