Main v. Nash
| Decision Date | 06 December 1922 |
| Citation | 245 S.W. 581,212 Mo.App. 689 |
| Parties | LEWIS P. MAIN, Appellant, v. ADDIE G. NASH and LEWIS A. GRAVES, Respondents |
| Court | Missouri Court of Appeals |
Appeal from Webster County Circuit Court.--Hon. C. H. Skinker Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Lewis P. Main for appellant.
No appearance for respondents.
Action by injunction to prevent the closing of an alleged public road. Issues found for defendants, and appellant's bill dismissed and he has appealed.
The plaintiff is the owner of the East Half of the Northeast Quarter, Section 33, Township 31, Range 18, in Webster County. Defendant Addie Nash is the owner and defendant Graves the tenant in possession of the Northwest Quarter of the Northwest Quarter and the Southwest Quarter of the Northwest Quarter of Section 34, Township 21 Range 18. The two forty-acre tracts now owned by defendant Nash adjoin the land of plaintiff on the east and plaintiff contends that a public road runs east from his land between the two forty-acre tracts of defendant, a part being on each forty, and connected with a north and south public road on the east side of defendants land known as the Lebanon road and that defendants are attempting to close this road leading from plaintiff's land to the Lebanon road and seeks to enjoin them from doing so.
This road is a cul de sac. At the closed end of this road is a gate through which the travelers upon this road pass, and then go on across plaintiff's land and over it to another road called the Buffalo road. The road in question and plaintiff's farm are a short distance from the Town of Marshfield and if the road in question is closed, plaintiff will have no practical way to reach Marshfield. It is conceded that the road in question was not established by the county court but if it is now a public road its establishment as such must depend upon dedication and user. There is very little conflict in the testimony and we find the facts to be as follows:
Until a short time ago the two forty-acre tracts between which the road in controversy runs was owned by different parties and were unenclosed until fifteen or eighteen years ago. The land now owned by plaintiff was improved and there was a neighborhood road that ran from the house on plaintiff's land across a part of each of the two forty-acre tracts aforesaid by which plaintiff had access to the Lebanon road and thence to Marshfield. Some fifteen or eighteen years ago the then owners of the two forty-acre tracts fenced them and in doing so left a lane on the line between them twenty-five to thirty feet wide. The man who owned and fenced the north forty testified that at that time his father owned the land now owned by plaintiff and that he left his part of the lane so his father could have an outlet. The man that fenced the south forty testified that he just set his fence back seven or eight feet form the line to be sure he did not get over the line. The lane has remained there to the present time and has been traveled and used as a road by plaintiff and by all persons who had occasion to come to his place. The public, when desirous of passing from the Lebanon road across to the Buffalo road would pass through this lane and through the gates on plaintiff's farm to reach the Buffalo road. Persons hauling sand and gravel from the creek on plaintiff's land would pass through this lane. The road in this lane did not need much work but the...
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