Koller v. Shannon County
| Decision Date | 06 August 1929 |
| Docket Number | 27264 |
| Parties | KOLLER v. SHANNON COUNTY |
| Court | Missouri Supreme Court |
S. A Cunningham, of Eminence, for appellant.
John P Moberly, Pros. Atty., of Eminence (Claude E. Curtis, of Jefferson City, of counsel), for respondent.
This is an action in ejectment, brought to recover the possession of the land, described in the plaintiff's petition, which is now being used and maintained by the defendant as a public road. Plaintiff alleges in his petition that he owns the fee in the land, and that the title to the same has not been conveyed by him to any person, and that he is entitled to the possession of the same and for rental for its detention.
The defendant claims the right to the possession of the land by reason of ten years' use and maintenance of the same as a public highway, and, in addition, puts in issue plaintiff's claim by a general denial of each and every allegation in his petition. By the consent of the parties the case was submitted to the court, sitting as a jury. The court, after hearing the testimony, rendered a judgment in favor of the defendant, from which the plaintiff has appealed.
It was conceded that the record title to the land was in the plaintiff. The sole question in controversy was whether there had been, for a period of 10 years, such a continuous use and maintenance of the land as a public highway (under section 10635, Rev. St. 1919) as to establish title by user in the defendant. There is no question but there is marked contrariety between the testimony of the witnesses of the respective parties. There is, however, substantial testimony to support the contention of the defendant. This being an action at law, tried by the court, in the absence of any declarations regarding the legal phases of the case having been submitted, the findings of the court, sitting as a jury based on substantial evidence, as they were in this case, are conclusive as to the facts (Missouri Lumber & Mining Co. v. Hassell (Mo.) 298 S.W. 47; Haley et al. v. Sippley, 317 Mo. 505, 297 S.W. 362; Mathis et al. v. Melton et al., 293 Mo. 134, 238 S.W. 806; Mosley v. Evans, 274 Mo. 216, 202 S.W. 1075).
Whether or not the land, by reason of the proof of its use and maintenance for the time required by the statute (section 10635, supra), became a public road, was a question of fact for the trial court and its finding in that regard will not be...
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