Parsons v. Wilcox
| Decision Date | 07 February 1921 |
| Citation | 227 S.W. 620,206 Mo.App. 603 |
| Parties | RUTH B. PARSONS and C. B. PARSONS, Her Husband, Appellants, v. I. W. WILCOX (and Eleven Others), Respondents |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Pettis County.--Hon. Hopkins B Shain, Judge.
AFFIRMED.
Judgment affirmed.
G. W Barnett and Wilkerson & Barnett for appellants.
A. L Shortridge and Lamm, Bohling & Lamm for respondents.
This is a suit in equity to enjoin defendants from prosecuting an application in the county court for the establishment of a new road through plaintiff Ruth Parsons' farm. The trial court sustained a demurrer to the bill and plaintiff's refusing to plead further, have appealed.
The allegations of the bill are that plaintiff, Ruth Parsons, owns a farm of 140 acres, with her residence on the south forty; that there is a road running around the east, north and west sides of this forty, one-half of the right of way of which was given by plaintiff's ancestors; that said road, if worked, would be as good as others in that neighborhood; but, with a view of having it abandoned and forcing a road through plaintiff's farm, defendants and others have conspired to have all work thereon cease; that 20 years ago, while plaintiff's father owned the land, an application was made to open said proposed road, but the county court decided it was not of sufficient public utility; that in 1906 another application was made, but on account of the insufficiency of the petition, the matter was defeated; that in 1917, defendants made another application but the petition was found to be insufficient and the proceeding was dismissed; that subsequent thereto in 1917 another application was made, but the county court found the road was not of sufficient public utility and dismissed the proceeding and there has been no change in the situation making said road of any greater necessity; that, notwithstanding there has been no change in the situation rendering the proposed road of public utility, defendants, in the early part of 1919, made a further application to the county court to have said road established, to which a remonstrance was filed setting up the previous finding of the court that the road was not of sufficient public utility and that said question had already been adjudicated, but the county court ignored said plea and said former adjudication and refused to recognize that they were bound by any former adjudication; that the county court sustained said application, but the proceedings were quashed in the circuit court to which they had been properly removed; that defendants have again posted notices of application for the establishment of the same proposed road, notwithstanding the judgment aforesaid, "and they threaten that no matter how often defeated, they will continue to make applications until said road is opened and established;" that plaintiff has ever remonstrated and has now filed her remonstrance, "and she now herein protests against these repeated applications because they are vexatious and prompted by malice, hatred and ill will," etc; that said road, if established, will cut off about 15 acres of her said 40, leaving it so situated as to be of little value, though as it now is, it is worth $ 200 per acre; that the opening of said road through the farm would damage it about $ 3000, and it would be less expensive to work the old road that now exists around her farm, than to pay the expenses of opening the new road; that by the multiplicity of suits she has been greatly harassed and vexed, and that no work has been done on said old road for many years, it being omitted by design in order to create a necessity for going through plaintiff's land; that unless defendants be enjoined, the applications will be repeated from time to time and from year to year, and the threat to open said road will injure her land and she will suffer irreparable injury for which she is without remedy; that by reason of the repeated applications she has already suffered great damage and expense; wherefore, "in view of the multiplicity of these suits and their repetition, and in view of fact that the public necessity for this road has been adjudicated and determined and is now res adjudicata, plaintiff prays that defendants be perpetually enjoined and restrained from prosecuting any application for the establishment of such road through plaintiff's farm and from further harassing or annoying plaintiff with the same," etc.
No charge or complaint is made against the form or sufficiency of the application made by defendants as petitioners in the county court, nor against their qualifications, nor of any defects in the steps they have taken to have the county court consider said application, but the complaint is founded upon the varied and diverse grounds set forth in the above resume of the bill. It will be observed that many of them are matters which might be taken into consideration by the county court upon a hearing as to the practicability and public...
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