Jenkins v. Chicago & A. R. Co.

• Decision Date: 07 November 1887
• Citation: 27 Mo.App. 578
• Parties: E. W. JENKINS, Appellant, v. THE CHICAGO & ALTON RAILROAD COMPANY, Respondent.
• Court: Kansas Court of Appeals

27 Mo.App. 578

E. W. JENKINS, Appellant, v. THE CHICAGO & ALTON RAILROAD COMPANY, Respondent.

Court of Appeals of Missouri, Kansas City.

November 7, 1887

APPEAL from Saline Circuit Court, HON. RICHARD FIELD, Judge.

Reversed and remanded.

The case is stated in the opinion.

J. P STROTHER, for the appellant.

I. This was not a public road, nor a public road-crossing. Banks v. Railroad, 69 Mo. 222; Hodges v. Railroad, 71 Mo. 37; Wharton's Law Dictionary, title, " Highway."

II. In the country it is only at public crossings that railroads are exempt from the duty of fencing. Morris v. Railroad, 79 Mo. 367. In this case, Hough, C. J., referring to Walton v. Railroad (67 Mo. 58), says: " In that case it is true the reasoning of this court in Robinson v. Railroad (57 Mo. 494), was criticized, but the judgment was approved, as it was a suit for single damages under the fifth section of the damage act. The statute under which these cases were decided has been amended, however, and whatever difference of opinion may exist as to the duty of the railroad to fence under the old law, we are all of opinion that fences are now required to be erected everywhere outside of towns and cities, except at public crossings and depot grounds." Perriquez v. Railroad, 78 Mo 91; Tickell v. Railroad, 90 Mo. 298.

III. The fact that the proprietor of land adjoining the right of way of a railroad company has failed to fence up to his line does not absolve the company from compliance with its statutory duty to fence its road where it passes through uninclosed lands. Hamilton v. Railroad, 87 Mo. 85. So had said Philips, C., in Rutlege v. Railroad (78 Mo. 286). Rozzelle v. Railroad, 79 Mo. 349.

IV. It follows that the court erred in amending instruction numbered one, asked by plaintiff, and in giving instructions numbered one, three and four, especially number three, asked by defendant. The latter was unquestionably erroneous, and under the evidence, was equivalent to a peremptory instruction. It was and is out of the power of even a county court to establish a private road unless where a public road neither " passes through nor touches it." Acts 1868, p. 161, sect. 1; now sect. 1973, Rev. Stat. A fortiori, an individual could not establish a private road or " outlet," as called in instruction three, in a case like this, where the public road both " touched and passed through" the land of Mrs. Mead.

G. B. MACFARLANE and DAVIS & WINGFIELD, for the respondent.

I. The point where the cattle were killed was a public road-crossing within the meaning of section 809, and it was the duty of respondent to treat it as such, and respondent had no right to close it by gates or otherwise, either against the general public or against Mrs. Mead. Walton v. Railroad, 67 Mo. 56; Railroad v. Farrell, 76 Mo. 183; Luckie v. Railroad, 76 Mo. 639; Brown v. Railroad, 20 Mo.App. 427, and cases there cited; Laws of 1883, p. 169, sect. 53; Zimmerman v. Snowden et al., 88 Mo. 218. Although Mead says, in his evidence, that his mother, the owner of the land adjoining the road in question, always claimed, and had the right to close said road, it does not appear that she ever attempted to exercise that right, and we hold that, under the foregoing decisions, she did not have that right at the time respondent's road was constructed, if she ever had it.

II. The third instruction given for respondent stated the law correctly, and there was abundant evidence to support it. The case of Walton v. Railroad (67 Mo. 56), is exactly in point. The statement in that case shows that the road over which the controversy arose was merely a private one, and yet the court held that the railroad had no right to fence it. The third instruction, given at the instance of appellant, states the law much more favorably for appellant than respondent's third instruction does for respondent, and certainly cures any error that may exist in said third instruction.

III. The third instruction given for appellant is based on the theory that, in order to constitute the road in question a public or private road, so as to exempt defendant from the duty of fencing it, it must have been established by the county court either as a public or private road, or left open and used by the public as a road continuously, or without being fenced or obstructed by the owners of the land, and without a denial of the right of the public exhibited, so as to notify the public of such denial by obstructing such way for a period of at least ten years. This is the law, and, under the evidence in the case, the verdict of the jury was correct.

IV. The points made by appellant are not well taken, and his authorities do not sustain his position.

HALL J.

This was an action for double damages on account of the killing of six of plaintiff's cattle.

The question in the case was as to the duty of the defendant to fence its railroad where it crossed a certain lane or road. This lane was not on the plaintiff's land, and with it he had no connection or relation whatever. The court gave the following instruction, among others, for the defendant:

" 3. If the jury believe, from the evidence, that the road, or open space, by which the cattle went on to defendant's railroad, had been kept open and used as a private outlet or way for the convenience of her farm by the owner of the land over which the same ran, and had been open and used for more than ten years before the cattle were killed, and was fenced on both sides for a space extending north and south of the railroad extending to a

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