State ex rel. Pulley v. Thompson
| Decision Date | 06 November 1922 |
| Citation | 244 S.W. 940,211 Mo.App. 434 |
| Parties | STATE OF MISSOURI ex rel. FRANK L. PULLEY, Prosecuting Attorney, Appellant, v. EVA K. THOMPSON and JOHN B. THOMPSON, Respondents |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Clinton County.--Hon. Alonzo D Burnes, Judge.
TRANSFERRED TO SUPREME COURT.
Case transferred to Supreme Court.
D. H Frost and Frank L. Pulley for appellant.
R. H Musser for respondent.
This is an action in equity brought in the name of the State by the prosecuting attorney of Cinton County to compel the opening of a public highway to the full width of sixty feet the width at which it is claimed the road was established. The defendants are the adjacent landowners and are in possession of and claim to own the strips of land in controversy adjacent to the road as now opened on the ground, and which relator seeks to have included within the right of way of said road.
The road in question is a part of the State road from Plattsburg to St. Joseph and was established by Act of the 13th General Assembly of the State of Missouri, approved March 17, 1845. See special laws of that session, p. 356. The act provided that the laying off and opening of said road should be governed by the general law in reference to the opening of State roads, and the law at that date required all State roads to be marked out sixty feet wide. [See sec. 28, art. 2, chapter 151, R. S. 1845, p. 975.]
As established, the road ran west along the south side of the Southwest quarter of the Southwest quarter of Section 14, Township 55, Range 32, in Clinton, and, at the southwest corner of said section it turned and ran in a northwesternly direction through the Southeast quarter of Section 15 in said township and range until it reached a point on the west side of said quarter section about a quarter of a mile north of the southwest corner thereof and thence it proceeded on north.
At the time the road was established in 1845, the land was unfenced.
In 1878, Mr. Charles W. Shepherd owned the abovementioned land and in November of that year, petitioned the county court of Clinton County to allow him to turn said road from its northwesternly course through said 160 acres so that it would run on his own land along the south line of said southeast quarter of Section 15 to the southwest corner thereof and thence north to the point where the road continued north along the west side of said section. This proceeding to thus turn the road was for the purpose of enabling Shepherd to cultivate and enclose the 160 acres above mentioned, and was authorized by Section 24 of the Act of April 27, 1877, Laws 1877, p. 399, which is practically the same as section 10633, Revised Statutes 1919. The county court authorized the turning of the road as sought and Shepherd turned it accordingly. Intending to plant a hedge fence along the north and west sides of the road as turned, he built a fence some distance outside of the line of the roadway, but, thereafter neglected to plant the hedge, and the fence, as located considerably inside of and on the highway, remained there so that the road as opened on the ground...
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