Peterson v. Beha

• Decision Date: 29 March 1901
• Parties: PETERSON v. BEHA, Appellant
• Court: Missouri Supreme Court

62 S.W. 462

161 Mo. 513

PETERSON v. BEHA, Appellant

Supreme Court of Missouri, First Division

March 29, 1901

Appeal from Callaway Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed and remanded (with directions).

W. S Pope for appellant.

(1) The road laid out by commissioners commenced eight rods north of the corner of section 33-45-11 and runs southeast intersecting line, etc. There is no complaint of the obstruction of this road; the road obstructed begins ten or twelve rods north of the center of section 33, and runs easterly, etc., and the decree commands defendant to remove his fences off of this ground, and to keep off perpetually. (2) Defendant's position is that he can't obey; he does not know whether to count ten rods or twelve rods from the center of section 33 for a starting point; and, secondly that plaintiff has no right to the land; that no such land was ever appropriated. High on Inj. (3 Ed.), sec. 37; Rousey v. Wood, 47 Mo.App. 465; Golahar v. Gates, 20 Mo. 236; Belk v. Hamilton, 130 Mo. 293; Wilson v. Berkstreper, 45 Mo. 283; Railroad v. Lewright, 113 Mo. 660; Railroad v. Swan, 120 Mo. 30; Railroad v. Fowler, 113 Mo. 458. Some particular thing must be commanded. Moses on Mandamus, p. 176; High Ex. Rem (3 Ed.), secs. 1, 5, 6, 10, p. 561; Hillard Inj. (3 Ed.), sec. 1. (3) The taking of land for a private road without the owner's consent is a proceeding that must be strictly construed. Collville v. Judy, 73 Mo. 651; Cox v. Tipton, 18 Mo.App. 450; Barr v. Flynn, 20 Mo.App. 383; Belk v. Hamilton, 130 Mo. 292. (4) Oral testimony of commissioners is not competent to show their report was incorrect. The record must be complete in itself; can not be eked out by extraneous evidence. Cunningham v. Railroad, 61 Mo. 33; Jones v. Zink, 65 Mo.App. 409; 63 Mo.App. 585; Fore v. Hicks, 48 Mo.App. 254; Buddecke v. Ziegenhein, 122 Mo. 239. Evidence of Oliver was inadmissible to contradict report of commissioners and record of county court. McAllister v. Reel, 53 Mo.App. 81; State ex rel. v. Maloney, 113 Mo. 367; Johnson v. Wood, 84 Mo. 489; Butler v. Barr, 18 Mo. 357; Farrar v. Dean, 24 Mo. 16; Lumothe v. Lippott, 40 Mo. 142; Hart v. Rector, 13 Mo. 497; Jennings v. Brizeadine, 44 Mo. 332; Jones v. Shipley, 90 Mo. 307; Conn v. McCullough, 14 Mo.App. 584. Plaintiff can not base his action on action of county court giving him a private road and then attack the same.

D. P. Bailey for respondent.

(1) The pleadings and evidence set out in appellant's abstract show that by purchase and user respondent is entitled to the road in question. (2) The proceedings of the county court were introduced and admitted in evidence, simply to show a marking out of the road and the payment to Hill of $ 15 for same. (3) The petition claims, and the evidence shows, that respondent, by user and occupation for more than ten years, became the owner of the strip of land in controversy for a roadway. This was the finding of the court. (4) There is nothing in the point made by appellant, that the report of the commissioners starts the road eight rods north of the center of section 33, whereas the petition and evidence show it was ten or twelve rods north of that point. The evidence shows that the road as actually marked out by the commissioners, began ten or twelve rods north of said point, and the evidence shows that the road, though afterwards fenced up, can be identified by its marked pathway, hence the injunction can be easily obeyed. (5) Hill lived on the land now claimed by respondent when the road was opened. He got $ 15 for the road. When appellant bought the Hill land, respondent et al. occupied the road, and continued to do so until a little trouble between them in 1895, when appellant fenced him out. This occupancy had lasted for over twenty years, and gave title to plaintiff et al.

W. S. Pope for appellant in reply.

Replying to respondent's statement and argument, appellant says, that on his own contention the judgment ought to be reversed. Wagner's Statutes, pp. 1230 and 1231; Cook v. Ferbert, 145 Mo. 462; Knapp, Stout & Co. v. St. Louis, 153 Mo. 560; Givens v. McIllroy, 79 Mo.App. 671; Tanner v. Wallbrunn, 77 Mo.App. 262; Schuster v. Myers, 148 Mo. 422.

ROBINSON, J. Marshall, J., absent.

OPINION

ROBINSON, J.

For the purpose of obtaining a mandatory order against defendant to remove an obstruction placed by him across a private road, and to restrain its further obstruction, plaintiff filed with the circuit court of Callaway county the following petition:

"Plaintiff states that he is and has been for more than twenty-three years last past the owner and in possession of the following described lands lying and being in the county of Callaway and State of Missouri, to-wit: Ten acres being the northwest corner of the northwest quarter of the southeast quarter and also ten acres being the southeast corner of the northeast quarter of the southwest quarter; all in section 33, township 45, range 11 west. That he has occupied said land as a homestead for more than twenty-three years last past, and during all that period of time there has not been, nor is there now, any public road running through or touching said lands.

"Plaintiff states that the county court of Callaway county did, at its December term, 1873, upon the petition of this plaintiff and other landowners, attempt to locate and establish a private road twenty feet in width, commencing eight rods north of the center of section 33, township 45, range 11; thence southeast, intersecting the line between northwest of the southeast and southwest of the northeast quarter; thence east with said line to a point crossing the line running north between the southeast of the northeast and the southwest of the northeast quarter about twenty yards north of the northeast corner of the northwest of the southeast; thence to and crossing the line between the southeast of the northeast and northeast of the southeast quarter, about forty yards east of the corner last named; thence bearing southeast to and crossing the section line between sections 33 and 34, about sixty yards west of the northeast corner of the northeast of the southeast; thence to and intersecting Turkey creek road about one hundred yards west of the line between the northwest of the southwest quarter, and the southwest of the northeast quarter of section 34, township 45, range 11.

"That commissioners were duly appointed by said county court to so mark out said road and assess damages to landowners over which said road would pass; that said commissioners, in attempting to mark out said road, did, about the month of December, 1873, view the lands touching said road, and did actually mark out said road by blazing trees along the supposed line of the same, and did point out the same to plaintiff, and did assess damages to one Lewis Hill in the sum of $ 15 and did point out to the said Hill the line of such road as indicated by them as aforesaid; that plaintiff then duly paid to said Hill said sum of $ 15; that said Hill was at that time the owner of the southwest quarter of the northeast quarter of said section 33 over which said road was actually marked out as aforesaid; that said commissioners actually marked out and blazed said road twenty feet wide as follows, to-wit: beginning at point ten or twelve rods north of the center of said section 33 and running thence easterly a distance of about twenty-two rods without touching plaintiff's said lands to a point on the north side of a branch, then to connect plaintiff's land with said road. Beginning again on the line between the north and south halves of said section 33, twenty-two rods and eight links from the center of said section; thence north ten rods to the point aforesaid, north of said branch; thence in an easterly direction following the meanderings of said branch first along the north side about thirty-one rods; thence across the branch and along the south side thereof thirty-three rods and nine links to a point two rods north of the southeast corner of the southwest quarter of the northeast quarter of said section 33; thence along the south side of said branch forty-eight rods; then across the branch and along the north side thereof twenty-seven rods and three links, then across the branch and along the south side thereof twenty rods to the section line intersecting said line twelve rods south of the northeast corner of the northeast quarter of the southeast quarter of said section 33; thence along the south side of said branch about eighteen rods to Turkey creek road.

"That immediately after such actual location and making of said road, as last above described, said road was cleared and worked and set apart for the travel of plaintiff and others and the public generally and was so used and possessed from that time, to-wit, December, 1873, up to the time the same was fenced up and obstructed by the defendant as hereinafter mentioned. Plaintiff states that from the time said road was so fenced he and the public generally, constantly and continually used the same as a road up to the month of May 1895; that they so used the same openly, notoriously, peaceably and quietly under a...