State ex rel. Carter County v. Lewis, No. 7498

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: STONE; McDOWELL, P. J., and RUARK
• Citation: 294 S.W.2d 954
• Parties: STATE of Missouri ex rel. CARTER COUNTY, Missouri, and C. P. Turiey, Prosecuting Attorney of Carter County, Plaintiffs-Respondents, v. Roy LEWIS and Sophia Lewis, Defendants-Appellants.
• Decision Date: 27 August 1956
• Docket Number: No. 7498

Page 954

294 S.W.2d 954 STATE of Missouri ex rel. CARTER COUNTY, Missouri, and C. P.
Turiey, Prosecuting Attorney of Carter County,
Plaintiffs-Respondents,
v.
Roy LEWIS and Sophia Lewis, Defendants-Appellants. No. 7498. Springfield Court of Appeals, Missouri. Aug. 27, 1956.

Henson & Henson, Poplar Bluff, for defendants-appellants.

C. P. Turley, Van Buren, for plaintiffs-respondents.

STONE, Judge.

In this action for a mandatory injunction to compel removal of all obstructions from an alleged public road in Carter County, Missouri, and to enjoin future obstruction

Page 956

of the road, defendants appeal from a decree granting the requested injunctive relief. The segment of road in dispute (hereinafter referred to as the disputed road) is approximately 1,866 feet in length and runs in an irregular northerly and southerly course from the south edge of the country community of Chilton, Missouri, to the north bank of Current River. In earlier times, the disputed road forked near the river, with one branch running upstream and crossing Current River at the Partney Ford, and with the other branch running downstream and crossing Current River at the Swezea Ford. There was no showing that either ford, or for that matter either branch of the road past the fork, had been used for more than the years prior to trial, but the evidence definitely established that all who had occasion to do so had continued to travel the disputed road to the north bank of Current River until the Fall of 1953.

For many years (and until 1949, as the testimony indicated), children of school age residing on the south side of Current River were transported across the river by boat to a landing near the fork in the disputed road and walked over that road to the Chilton school, and similarly adults living on the south side of Current River crossed the river by boat and used the disputed road as the only available route to the polling place for school and general elections. With the formation of consolidated school districts and the construction of improved state highways on the south side of Current River, use of the disputed road for the foregoing purposes has diminished in recent years. However, at least one student attending Ellsinore High School continued to cross Current River and to use the disputed road regularly during the school year of 1949-1950, and residents on the south side of the river continued to use this road, after crossing the river by boat, to participate in school elections and to reach Chilton for other purposes. And, there was uninterrupted, and apparently unabated, vehicular use of the disputed road--'the only road leading in there in that section of the county'--by those who went to Current River for fishing, swimming and other recretational purposes, as well as by residents of the Chilton community desiring to visit the neighborhood cemetery about one mile downstream on the south side of the river. Defendant, Roy Lewis, who moved onto the farm, through which the disputed road runs, in 1940 as manager for one Waymeyer, from whom defendants subsequently purchased the farm in November, 1951, readily conceded the constant and continuing use of the disputed road during the entire period of his residence on the farm. In short, the evidence abundantly supported the finding of the learned trial chancellor that 'the use of said road by the public has been constant, general and continuous since its establishment in pioneer days, some fifty or more years ago, down to the present time.'

Witness Hampton, 77 years of age at the time of trial, who had been road overseer of the Chilton district from 1910 to 1922, testified positively that he had worked the disputed road (which was in the Chilton district) during each of the twelve years he had been road overseer, and he also remembered that his father (in a capacity not shown) had worked the disputed road 'when I was just a boy.' Witness Chilton, who had lived in the neighborhood from 1910 to 1928, had worked out his poll tax on the disputed road 'quite a few years' during that period, and three other witnesses either had worked out their poll taxes or had observed others working out such taxes on the disputed road at various times, the latest year specifically designated having been 1934. Witness Coleman, identified as 'an...