Phelps v. Pacific R.R.

• Decision Date: 31 January 1873
• Citation: Phelps v. Pacific R.R., 51 Mo. 477 (Mo. 1873)
• Parties: JOSIAH PHELPS, Respondent, v. PACIFIC R. R., Appellant.
• Court: Missouri Supreme Court

51 Mo. 477

JOSIAH PHELPS, Respondent,

v.PACIFIC R. R., Appellant.

Supreme Court of Missouri.

January Term, 1873.

Appeal from the Jackson Circuit Court.

J. N. Litton, for Appellant.

The sole power of vacation is vested in the County Court (G. S., 1865, ch. 52, especially § 12, 45 Mo., 284); and the only way the court could vacate the road was by a strict compliance with the statute. (People vs. Highway Comrs., 16 Mich., 64; 45 Mo., 284.)

“If upon the report the County Court be satisfied that the public will not be injured by such change, it shall order the same, and upon satisfactory evidence of such road being opened, the court shall make an order vacating the old road.” (2 W. S., 1229, § 58.)

J. B. Hovey, for Respondent.

I. The parol evidence of the vacation and non-user of the county road being offered and received without objection, was sufficient to sustain the verdict.

II. The order of the County Court approving the report of the Commissioner, was equivalent to an order vacating the road.

WAGNER, Judge, delivered the opinion of the court.

This was an action commenced by the plaintiff against the defendant under the damage act for killing a cow.

Where the killing took place, the adjoining lands were not fenced, and the question is, whether it was at a public crossing? There was no attempt made to prove actual negligence. It is conceded that within three years, there was a public road at the place where the accident happened, but it is contended that previous thereto it had been vacated and abandoned. In support of this the records of the county court were produced and given in evidence. They showed a report made by the road commissioners, recommending a change, and an order of the court receiving and approving the report, and ordering that a change be made in this road, and that the same be marked out according to law and put in good repair for public travel.

One witness testified that he had done some work on the new road, and that was all the evidence there was that the road here in controversy had been vacated.

The statutory provision in relation to changing and vacating roads in force, when this proceeding was had, declared that if upon the report of the commissioner the county court should be satisfied that the public would not be injured by the change, it should order the same; and, upon satisfactory evidence of such road being opened, in good condition, the court should make an order vacating so much of the former road as lay between the different points of intersection, etc. (2 W. St., Ed. of 1870, p. 1229, § 58.)

The only order of the court was that the road so changed should...