Robinson v. Jones
| Citation | 71 Mo. 582 |
| Parties | ROBINSON v. JONES, Plaintiff in Error. |
| Decision Date | 30 April 1880 |
| Court | United States State Supreme Court of Missouri |
Error to Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.
AFFIRMED.
This was an action for a trespass alleged to have been committed by defendant by entering upon plaintiff's land and tearing down and removing his fence. Defendant in his answer denied the alleged trespass, and justified upon the ground that he was a road overseer, and was acting as such, and averred that he entered upon plaintiff's land, and tore away a portion of the fence therefrom in obedience to an order of the township board of Hurricane township, Carroll county, Missouri, having jurisdiction to open roads, and to make such order, which order directed him to open the road on the land in the answer described, running through plaintiff's premises, and remove obstructions which might be found in the same. Plaintiff demurred to the answer because it did not show that the proceedings of the township board were regular and that the road was legally opened. The demurrer was sustained, and defendant refusing to plead further, there was a judgment for plaintiff. Hence this appeal.
Sebree & Mirick for plaintiff in error.
The township board having had jurisdiction of the subject matter of opening roads, defendant was protected by its order, without showing that the order was legally made. Butler v. Barr, 18 Mo. 357; Walker v. Likens, 24 Mo. 298; Wyatt v. Thomas, 29 Mo. 23; Brown v. Harris, 52 Mo. 308; Howard v. Clark, 43 Mo. 344. If there was irregularity in the proceedings for the opening of the road, it could not be shown in this case. Fithian v. Monks, 43 Mo. 521; Cooper Co. v. Geyer, 19 Mo. 257; McVey v. McVey, 51 Mo. 406; Snoddy v. Pettis Co., 45 Mo. 362; Wolf v. Robinson, 20 Mo. 460; Grignon v. Astor, 2 How. 319; Voorhees v. The Bank, 10 Pet. 449.
Hale & Eads for defendant in error.
The answer does not allege that a road had been legally established through plaintiff's land; does not set out any of the proceedings or acts of the board; and does not even allege that plaintiff's fence was an obstruction. As the township board, under the “township organization law,” is the only body of that character which has, or has had, any jurisdiction over roads, the court, we presume, will assume that that body is referred to, though the answer throws no light on the question. This was and is a body of limited statutory jurisdiction. No presumption is indulged by the court in favor of their jurisdiction, but they must show and plead their authority in every case, and the proceedings of those who claim to act under them cannot be known judicially until alleged and proven, and must be shown to be in pursuance of the law which creates and authorizes them; otherwise, they are totally void. 1 Waterman on Trespass, §§ 54 to 60.
The demurrer to the answer was well taken. No authority on the part of the township board of Hurricane...
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