Oetting v. Pollock

• Decision Date: 14 April 1915
• Citation: 175 S.W. 222,189 Mo.App. 263
• Parties: FRED OETTING, Appellant, v. LAURA POLLOCK et al., Respondents
• Court: Missouri Court of Appeals

175 S.W. 222

189 Mo.App. 263

FRED OETTING, Appellant, v. LAURA POLLOCK et al., Respondents

Court of Appeals of Missouri, Springfield

April 14, 1915

Appeal from Wright County Circuit Court.--Hon. C. H. Skinker, Judge.

REVERSED AND REMANDED (with directions).

STATEMENT.--The question presented by this controversy is whether a public road in Wright county had by reason of nonuser by the public for a period of ten years continuously been abandoned under the statute (Sec. 10446, R. S. 1909). Plaintiff and defendant Laura Pollock own farms in Wright county. The other defendants are nominal parties only. Plaintiff claims that defendant obstructed a public road which runs across the land owned by defendant; that in the year 1893 plaintiff secured from the county court an order granting and opening a private road fifteen feet in width connecting with the said public road, and that this private road was and is the only road connecting plaintiff's land with the public road; that in the year 1912 defendant Laura Pollock placed an obstruction in the public road, to-wit, a fence, in such a way that plaintiff and the public could not travel the same; that she still maintains the same and that it has become a nuisance to this plaintiff, depriving him of the use of his private way and that unless permitted to travel said public road where the obstruction is placed, plaintiff, by reason of the obstruction, has no outlet to any public road; that the private road was established at an expense of more than $ 100 to this plaintiff; that plaintiff notified the commissioners of the special road district in which the obstruction is maintained of the same and that it is a nuisance to the plaintiff as well as to the public and has requested the commissioners to remove said obstruction, but that they have failed and refused to do so, wherefore he has joined them as defendants herein; that he is greatly damaged and has no adequate remedy at law. The prayer is that "a mandatory injunction may issue requiring defendants to abate said nuisance and to remove said obstruction and that said defendant be permanently enjoined from further maintaining said obstruction and nuisance on said public highway as heretofore described, and such other relief as plaintiff may in equity and good conscience be entitled.

Defendant for answer, first, denied that the road mentioned in plaintiff's petition is now or ever has been a public road, and, second, that if it ever was a public road it was abandoned more than ten years next before the filing of this action and that said road has not been used by the public for more than ten years next before the filing of this action.

For reply, plaintiff denied that the road has ever been vacated or abandoned, and that under the facts the road could not have been vacated or abandoned by the public without first making compensation to the parties injured, which had not been done.

After hearing the evidence the court made a finding of facts which is agreed to by the parties as the facts of the case, and found therefrom that plaintiff is not entitled to any relief.

The finding of facts is as follows:

"The court finds the following to be the facts as shown by the testimony in this case:

"That at the time of the establishment of the present public highway that now runs from Hartville, the county seat of Wright county, to Mansfield, a railroad station on the railroad some fourteen or fifteen miles distant, and which road was opened in the year 1884, the road in question was and for twelve or fifteen years prior thereto had been a public road. That it was established by the orders of the county court of Wright county and that the overseers worked it and expended public money upon it so that it became and was a legally established public highway.

"That after the location of the present road leading from Hartville to Mansfield, no steps were ever taken to vacate the road in controversy and no action of the county court looking to that end was ever had. That after the location of the present road from Hartville to Mansfield, the road in controversy was not traveled as much as before and for the last fifteen or twenty years no public money has been expended upon it and it has not been traveled by the public generally to any extent and it has been regarded by most of the people living in the neighborhood of it as an abandoned road.

"That about the year 1896 a schoolhouse was built upon the road in question, at a point about one-half or three-quarters of a mile from the portion of the road which has been obstructed by a fence by defendant and at the time said schoolhouse was built it was located upon this road for the reason that it was then a public road and public money was expended upon this road between the schoolhouse and the point where the fence of defendant was placed across it the next year after the schoolhouse was built but none has been expended upon it since that time.

"That in the year 1907, a petition was filed with the county court asking that a portion of this road be changed where it crossed the forty acres of land immediately north of the forty owned by the defendant, this petition being signed by a number of freeholders residing in the immediate vicinity of this road, and that pursuant thereto, the county court of Wright county made an order changing the road as requested by the petitioners and this road as changed ran along the north line of the forty acres of defendant.

"That in the year 1893, the county court of Wright county, by a proper proceeding, opened a private road connecting the land of plaintiff with the road in question at the south line of the forty owned by defendant. To secure this private way, the plaintiff was required to expend the sum of $ 105.

"That in the spring of 1912, the defendant built a fence across this road in two places; one at the north line of said forty near the place where the beginning of the change was ordered by the county court in 1907 begins; the other fence was placed across it at the south side of said forty acres within a few feet of the place where the private road established by the county court connecting the land of plaintiff with said road entered said road. That if the fence placed by defendant across the road in question is permitted to remain plaintiff will have no connection with any public road and the private road which was established by order of the county court connecting his land with the road in question will be entirely useless to him and he will be substantially damaged thereby. That east of and beyond the schoolhouse mentioned, other parties have built fences across portions of the same road and have maintained them there for four or five years, with gates where these fences cross this road and persons using this road have passed through said gates. That the school children of the district have used the road in controversy in going to and from school ever since the schoolhouse was built and have so used it since the fences were built across it by defendant, and in doing so have climbed over the fences placed there by defendant."

Judgment reversed and cause remanded.

F. M Mansfield, E. B. Garner and Argus Cox for appellant.

(1) The vacation of highways by nonuser is not favored and the presumption will always be in favor of the continuance of their existence and the court will closely scrutinize the evidence relied on to show nonuser and to establish the vacation of a road by nonuser, the proof of its abandonment must be clear and satisfactory. Elliott on Roads and Highways, sec. 1173; 37 Cyc. 194; Kyle v. Board of Commissioners, 94 Ind. 115. (2) In order to show the vacation of a road by abandonment, the evidence must show that the abandonment by the public was complete and entire. There can be no abandonment by a nonuser so long as any portion of the public continue to use the road as a highway. 37 Cyc. 196; O'Dea v. State, 20 N.W. 299; Kelley Nail & Iron Co. v. Lawrence Furnace Co., 22 N.E. 639; Cox v. Highway Coms., 62 N.E. 791, 793; Small v. Binford, 83 N.E. 507, 510. (3) A public highway cannot be vacated, either by abandonment or by direct proceeding in court, for that purpose, to the injury of a person who has a private interest in the highway without first making compensation for the injury. Parties who have a private interest are abutting property owners and those similarly situated, that is, those who use the road as a means of access to their property. Elliott on Roads and Bridges, sec. 1172; Johnson v. Erasmus, 237 Mo. 586; Robinson v. Korns, 250 Mo. 663; Heinrich v. City of St. Louis, 125 Mo. 424; McQuigg v. Cullens, 47 N.E. 595; Johnston v. Lonstorf, 107 N.W. 459; Philips v. Highway Commissioners, 35 Mich. 15; Ross v. Commissioners, 32 Mich. 301; Beutal v. Bay City Sugar Co., 94 N.W. 202; Beuhl v. Union Depot Co., 57 N.W. 829; Hill v. Hoffman, 58 S.W. 929, 932.

No appearance for respondents.

FARRINGTON, J. Sturgis, J., concurs. Robertson, P. J., concurs in the result.

OPINION OPINION.

FARRINGTON, J.

There is no theory upon which the judgment of the trial court denying plaintiff relief can be sustained. It is alleged and proven that he will suffer irreparable damage by the maintenance of this public nuisance. It is alleged and established...