Phelps v. Dockins
| Decision Date | 03 November 1921 |
| Docket Number | No. 16695.,16695. |
| Citation | 234 S.W. 1022 |
| Parties | PHELPS v. DOCKINS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.
"Not to be officially published."
Action by Tillman Phelps against A. F. Docking to restrain defendant from obstructing an alleged public road. Judgment for the plaintiff, and defendant appeals. Affirmed.
Wilson Cramer, of Jackson, for appellant.
Spradling & Burrough, of Cape Girardeau, for respondent.
This is an injunction suit brought in the circuit court of Cape Girardeau county to restrain defendant from obstructing an alleged public road. The road mentioned by plaintiff is described as one continuous road, extending from a point on the Burfordville and Snider Mill road, by a circuitous route through the woods, to a point on the south line of survey No. 808, near the mill at Burfordville, a distance of a little more than one mile.
The petition alleges that the defendant is the owner, subject to the easement of the above-described public road. It is also alleged that plaintiff, his grantors, and the public have continuously, uninterruptedly, notoriously, openly, and adversely used said road as a public highway for more than 50 years, and as the only means of ingress and egress to plaintiff's premises; and that defendant has obstructed and maintains obstructions in the way of fences, gates, etc., across said public roads, so that the said public roads are completely obstructed, and Plaintiff's means of ingress and egress to his Premises are prevented, etc.
The court, in rendering its judgment, found that a public road existed from the Burfordville and Snider Mill road to a stake on the west boundary line of survey No. 3149, a distance of about 35 chains, and ordered the fences and gates across said road to be removed and that the defendant be perpetually enjoined from obstructing the same.
The evidence discloses that there is a principal public road known as the Burfordville and Snider Mill road, to which this road in question extends and with which it connects. The road which defendant obstructed, and which plaintiff contends is a public road, has been in existence at the place where it is now located, or near the same, for almost 50 years, and was used as the principal way of ingress and egress to four or five farms in that particular community. The road was not only used by the occupants and dwellers upon these four or five farms, but by the general public as well, when they had occasion to visit any of these four or five farmers at their farms, or to transact any business with them. This road was shown to have been used and traveled by the people living in this immediate community as their only outlet since 1872. It was not a well-improved road, but what is commonly termed in such communities as a neighborhood road; but the people who lived in this immediate community, although few in number, not only had the right to use this road, but the general public had the same right. This is disclosed by all the testimony offered in the case.
Defendant appeals from the judgment of the lower court,...
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Sellers v. Swehla
...have a right to use it, it is a public way, although the number who have occasion to exercise the right is very small.' Phelps v. Dockins, Mo.App., 234 S.W. 1022, 1023; Patton v. Forgey, 171 Mo.App. 1, 153 S.W. 575 (one owner); Kansas City v. Missouri Pac. R. Co., Mo.Sup., 229 S.W. 771, 774......
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Oliver v. Orrick
... ... on the issue, contempt or no contempt. Fitzroy v ... Bank, 234 S.W. 865; Phillips v. Dockins, 234 ... S.W. 1022; Reifeisen v. Young, 183 Mo.App. 508; ... State v. Scott, 214 Mo. 257. (7) But even if that ... ground had been properly laid ... ...
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Ward v. Missouri Pacific Railway Company
...348; Drimmel v. Kansas City, 180 Mo.App. 344. On question of amount and character of travel: Patton v. Forgey, 171 Mo.App. 1; Phelps v. Dockins, 234 S.W. 1022. (b) But even if the road in question was not a traveled public road within the meaning of the statute, the crossing was a public hi......
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Connell v. Baker, 8933
...to use it, and not by the extent to which that right is exercised (Wallach v. Stetina, Mo.App., 28 S.W.2d 389, 390(2); Phelps v. Dockins, Mo.App., 234 S.W. 1022, 1023(4)) or by the quqntity of travel over it. Gilleland v. Rutt, supra, 63 S.W.2d at 202(8). The right to use a public road 'can......