State ex rel. Faires v. Buhler
| Decision Date | 31 January 1887 |
| Citation | 3 S.W. 68,90 Mo. 560 |
| Parties | The State ex rel. Faires v. Buhler, Road Overseer, Appellant |
| Court | Missouri Supreme Court |
Appeal from Andrew Circuit Court. -- Hon. H. S. Kelley, Judge.
Reversed.
C. F Booher and Sanders & Mercer for appellant.
(1) In this case the relator cannot maintain the action. When the right is one of public concern only, and one individual has no more right to have the act done than another, application must be made by a public officer (unless the proper prosecuting officer declines to appear). 4 Wait's Actions and Defenses, 358, and cases cited; Angell & Ames on Cor sec. 719, note 9, and cases cited. (2) The petition and alternative writ do not state facts sufficient to authorize the writ, which is only granted when the law furnishes no other adequate remedy. People v. Supervisors, 12 Barb. 27; Commonwealth v. Rosseter, 2 Binn. 360; People v. Thompson, 25 Barb. 73; High on Ex. Leg Rem., sec. 10. The injury complained of in this case (if the allegations of the petition be true) is a public nuisance, for which there is an adequate legal remedy. Commissioner of Highways v. People, 66 Ill. 339; Addison on Torts [Wood's Ed.] sec. 270; 6 Wait's Actions and Defenses, 326; Givens v. Van Studdiford, 4 Mo.App. 500; R. S., sec. 1577; State v. Ball, 59 Mo. 321; 1 Bishop's Crim. Law, sec. 829; Commissioner of Highways v. People, 73 Ill. 203. (3) Mandamus will not lie in this case, because it is made to perform the office of an appeal from a proceeding in the county court to vacate the road in question, which is declared to be erroneous by all authorities. State v. Engleman, 45 Mo. 27; High on Ex. Leg. Rem., sec. 177, and authorities cited; 98 U.S. [8 Otto] 240; Dunklin County ex rel. v. District County Court, 23 Mo. 449; 30 Mo. 111. (4) It is a fundamental principle of the law of mandamus, that the writ will never be granted in cases where it would prove inoperative or unavailing. High on Ex. Leg. Rem., sec. 14. In this case it is admitted that the owner of the land through which the road in question runs, who is not a party to this suit, fenced said road up in 1874, and has had peaceable possession of it ever since, claiming the absolute and exclusive title to the land on which it was located, and has necessarily acquired title by virtue of the statute of limitations, and a writ of mandamus would now be unavailing to open said road; and such writ would be no defence to an action of trespass against the road overseer, if he removed the fence. 31 Ill. 97. (5) In this case the relief prayed by the petition (which was followed in the statement of facts in the alternative writ) was, that the road overseer be required to remove the fences from said road and keep the same in repair, while the peremptory writ only requires him to remove the fences, and is, therefore, insufficient. State ex rel. v. Railroad, 77 Mo. 144.
William Heren and David Rea for respondent.
(1) Wagner's Statutes, section 45, page 1226, expressly provides "that before any petition to the county court for any change in any established road, in whole or in part, shall be heard, said court shall be satisfied that notice of such petition has been given at least twenty days before the making thereof, by not less than three advertisements set up in the neighborhood of the road proposed to be changed." The second clause of Wagner's Statutes, section 2, page 1219, pertaining to roads, says: "Which powers shall be exercised only in accordance with the provisions of this act." Notice is a jurisdictional fact, and, without the notice required by statute, the action of the court is null and void. Jefferson County v. Cowan, 54 Mo. 237; Railroad v. Campbell, 62 Mo. 585; Whitely v. Platte County, 73 Mo. 30. (2) That in this case the record shows upon its face that the petition described one road and the notice another and different road; that there was no notice of the road attempted to be changed. (3) Wagner's Statutes, section 44, page 1226, requires the appointment of three commissioners, and requires them to report to the court at its first term after their appointment, "the respective distances and situation of the grounds of the established and proposed roads." This report is expressly provided for by statute, and must be made in accordance therewith, before the court has jurisdiction to act in the case. The face of the record showing that no such report was made, the action of the court was without jurisdiction and void. Authorities supra. (4) The remaining question: Upon the theory that the court acted without jurisdiction, and that the road was not changed by their action, will this proceeding lie to open the obstructed road? Is it a proper remedy? High, directly on point, p. 306 and note, sec. 433 and note 308; also sec. 440, p. 314; 2 Addison on Torts, 731, 732, also note to p. 730, 2d par.; 45 Mo. 294, and authorities there cited; 3 Burr. 1267. "A mandamus lies to compel the commissioner of highways to perform their duties in relation to making roads." 6 Bacon Abridg., 428, 429.
This is a proceeding by mandamus to compel defendant, as road overseer, to remove certain fences from across a certain alleged public road in his district. Suit was commenced in April, 1882, in the circuit court of Andrew county, at the relation of J. H. Faires. The petition and alternative writ charge that relator is a citizen and taxpayer of said county, and that defendant is road overseer of district number forty-two in said county, having been appointed February 14, 1882; that there was an ancient legally established road in said district, over and across the west half of the southeast quarter of section 4, township 59, range 35, in said county; that in 1874 said road was unlawfully obstructed, by building a fence across the same at a point where it enters on said tract on the north, about sixty-five and four-fifths rods east of the northwest corner thereof, and, also, by a like fence where it leaves said tract on the south, about the southeast corner thereof; that said defendant is aware of said obstructions; that it is his duty under the law to remove the same; that he has ample power and authority for that purpose, but wrongfully refuses so to do, to the irreparable injury of the relator and the public at large.
Whereupon the defendant was commanded by said alternative writ to remove said fences, or show cause why he had not done so. The return of defendant to the writ sets up that the road in question, over and across said tract of land, was changed and vacated by order and judgment of the county court of said county, on a proceeding for that purpose, begun in 1873 by S. R. Selecman, the owner of said land, for the purpose of cultivation and improvement, and that said road was properly and legally changed and re-located accordingly; that due notice thereof was given; that the relator voluntarily appeared in said court as a party to said proceedings, and failed to appeal from the final order and judgment of said court, changing and vacating that part of said road.
To this return the relator filed his plea, putting in issue all the new matter set up in the return, and charging affirmatively that there was no notice of said proceedings, no report of commissioners, and no final order or judgment changing and vacating said road.
The cause was submitted to the court upon the pleadings and the evidence. At the trial it was concluded that, at and prior to the year 1873, there was and had been a certain public road, leading back and forth from Savannah to Rosedale, in said district and county, which, in its course between said points, passed over and across said west half of southeast quarter of section 4, township 59, range 35, from northwest to southeast. It was also concluded that in the year 1873 one S. R. Selecman owned said tract of land, and, wishing to cultivate and improve the same, commenced proceedings in the county court of said county, under sections 43, 44 and 45, 2 Wagner's Statutes, 1872, page 1226, for the purpose of changing and vacating so much of said road as passed over and across said tract of land, and re-locating the same on the northwest and south line of said tract at his own expense. The records of said county court also show that such proceedings were had and conducted therein, under said sections of the statute, as resulted, if valid, in a final order and judgment of said court, granting and establishing said change, and vacating so much of said road as passed over and across said tract; and that the relator -- who assumed to represent not only himself, but the public at large -- had notice of said proceedings, got up a remonstrance against the proposed change; appeared in court and opposed the same, and, failing in his efforts, neglected to appeal from the judgment so rendered.
The records further show that in 1874 said Selecman -- who is no party to the suit -- in good faith, and at his own expense, opened up and constructed said new road upon said tract of land, and, thereupon, inclosed the same, and in so doing built the fences over and across the old road so vacated and changed, and thereafter continued to occupy and maintain the same, under claim of right and color of authority.
It also appears that said new road, so constructed in lieu of the old, at the date of defendant's appointment as overseer of district forty-two, and, also, at the date of the commencement of the suit, was one of the existing and recognized public roads of the district, although not in good repair on the south line, especially for heavily loaded wagons, by reason of freshets and washouts; and it further appeared that, in point of fact, there was not, and had not been for some six or eight years,...
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