Patton v. Forgey

• Decision Date: 15 February 1913
• Citation: 153 S.W. 575
• Parties: PATTON v. FORGEY et ux.
• Court: Missouri Court of Appeals

153 S.W. 575

PATTON v. FORGEY et ux.

St. Louis Court of Appeals. Missouri.

February 15, 1913.

Rehearing Denied February 15, 1913.

1. HIGHWAYS (§ 2)—HIGHWAY BY PRESCRIPTION —RETROACTIVE STATUTES.

Laws 1887, p. 257, and Rev. St. 1899, § 9694, providing that no lapse of time shall divest the owner of his title to land unless, in addition to the use of the road by the public for 10 consecutive years, there shall have been public money or labor expended thereon, are not retroactive.

2. HIGHWAYS (§ 5) — ESTABLISHMENT — ADVERSE POSSESSION.

In absence of statute, the continued open adverse user of land for public road purposes for 30 or 35 years before 1883, at which time plaintiff, seeking to restrain obstruction of the road, executed a deed to the abutting property to defendant, sufficiently established the easement of the public therein as a public road.

3. HIGHWAYS (§ 12)—EASEMENT OF PUBLIC— CONVEYANCE BY ADJACENT OWNER.

The owner of land in which the public had an easement as a public road by prescription could not, by conveying the land over which the road ran, oust the public of its easement.

4. ESTOPPEL (§ 42)—AFTER-ACQUIRED TITLE —COVENANT OF SEISIN.

Where one conveys land which he does not own at the time, by a deed containing the usual covenant importing an indefeasible seisin, any subsequently acquired title to such lands inured to the grantee.

5. HIGHWAYS (§ 155)—INJURY—ACTIONS BY INDIVIDUALS.

Individuals cannot maintain separate actions to redress a wrong with reference to a highway which is public in its nature unless they suffer some injury peculiar to themselves.

6. ESTOPPEL (§ 32)—BY DEED—MATTERS PRECLUDED —OBSTRUCTION OF HIGHWAY.

Since one who sues to have removed an obstruction to a public highway sues to vindicate a public right, though he must suffer an injury peculiar to himself, plaintiff cannot be prevented from suing for that purpose because of a covenant of seisin in a deed theretofore executed by him, conveying the land which had been used as a public road so as to become such by prescription.

7. JUDGMENT (§§ 203, 233) — TRIAL — DISMISSAL.

Under Rev. St. 1909, § 2097, providing that there shall be but one final judgment in a case and in view of the rule that the judgment should dispose of all parties, a defendant who was not shown to be liable should have been finally discharged by the judgment.

Appeal from Louisiana Court of Common Pleas; David H. Eby, Judge.

Action by J. H. Patton against Andrew J. Forgey and wife. From a judgment for plaintiff, defendants appeal. Reversed and rendered against defendant named and in favor of his wife.

F. J. Duvall, of Clarksville, Hostetter & Haley, of Bowling Green, and J. E. Pew, of Louisiana, Mo., for appellants. Pearson & Pearson, of Louisiana, Mo., for respondent.

NORTONI, J.

This is a suit in equity Plaintiff sued out an injunction against defendants Forgey and wife, restraining them from further obstructing a public road connecting with his pasture. At the hearing, the court found the issue for plaintiff and decreed a perpetual injunction against defendant A. J. Forgey, but made no disposition of the case whatever as to defendant Sarah J. Forgey. From this judgment defendants prosecute the appeal.

The road in question is a cul-de-sac which runs to the westward from the public road known as the Gravel Road near Paynesville in Pike county and connects with plaintiff's farm of 154 acres in the rear of some adjacent tracts on the outskirts of that town. The evidence tends to prove that this road is about 20 feet in width, but its length does not appear. The main public road, known as the Gravel Road, runs north and south through the town of Paynesville and passes over Water street of the town. The road involved in this controversy said to be 20 feet in width runs west from the Gravel Road between lot 16 in a certain block of the town of Paynesville, which is situate on the north thereof and a lot known as the Kreitz lot immediately on the south of it. After passing between these lots, the road extends farther westward between two tracts of land owned by defendants and connects with plaintiff's farm beyond. The evidence is well-nigh conclusive that this road had been continually in use by the public for a period of about 60 years until defendant obstructed it by placing a wire fence across the same near the point where it intercepts the Gravel Road.

It appears that more than 45 years ago this road was used by one and all as a passageway to a schoolhouse located on a tract of land now owned by defendant which is situate to the west and in the rear of lot 16. For many years this road served to accommodate several families who resided on the several tracts of land it touched to the west of Paynesville, and during all of the time it has served to accommodate the farm now owned by plaintiff by furnishing a short route to Paynesville. The several other tracts are now owned by defendants. Different persons who reside along the road repaired it at times as was needed, by hauling gravel upon it and maintaining a bridge immediately adjacent to where it connects with the main or Gravel Road. The adjacent proprietors recognized this way as a road, for during all of the years they have set and maintained their fences along the sides of the same accordingly, and every person who desired to has used and occupied the road as a passway to and from the premises adjoining. Indeed, the evidence, tending to show a continuous open and adverse user for a period of about 60 years on the part of the public as to this road, is conclusive. No one denies or disputes it. However, the right of plaintiff with respect to the matter is denied because he executed a general warranty deed to defendant A. J. Forgey in 1883, whereby he conveyed lot 16 above mentioned in the town of Paynesville to defendant A. J. Forgey and included in the deed a description of the ground adjacent thereto occupied by the road. It was on this strip of ground so described in the deed from plaintiff to A. J. Forgey that defendant obstructed the road by putting wire across the same about a year before the institution of this suit. As before stated, the road in question here passed west from the Gravel Road between the fences on the south side of lot 16 and the fence on the north side of the Kreitz lot. Both of these lots are now owned, and have been for many years, by defendants. In 1883 Forgey...