State v. Culver

• Decision Date: 31 October 1877
• Citation: 65 Mo. 607
• Parties: THE STATE v. CULVER, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 607

THE STATE

v.CULVER, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Andrew Circuit Court--HON. H. S. KELLY, Judge.

William Heren for appellant.

The non-user of an easement (a public road) will authorize the holder of the legal title to take possession of such easement far short of ten years. The easement is only to the use of the public so long as the public choose to use and enjoy it, and when the public cease to use it, and fail to keep it up as a road, the easement, by operation of law, reverts to the owner of the fee, and the public ought not to be permitted to prosecute him for fencing it up.

J. L. Smith, Attorney-General, for the State.

When the existence of a highway is once established, it continues to be such until it is clearly and unmistakably abandoned; a partial deviation is not an abandonment. Town of Lewiston v. Proctor, 27 Ill. 414; State v. Young, 27 Mo. 259; State v. Boscawen, 32 N. H. 331.

NORTON, J.

Defendant was indicted at the August term, 1874, of the Andrew circuit court, for obstructing a public road by building a fence across it so as to obstruct and injure the passage of the same. He was put upon his trial, found guilty, and his fine assessed at $20. His motion for new trial having been overruled, he brings the cause here by appeal. The court gave, among others, the following instruction on the part of the State, to which defendant excepted, viz:

3rd. But if you find that the defendant, or those under whom he claims title to his land, fenced in or across the road, and kept and maintained such fence for the period of ten years successively, next before the finding of the indictment, or for any one period of ten years successively at any time before the finding of the indictment, claiming the right to use the land so fenced in fee and independently of said easement or road-way, then the defendant had a right to maintain his fence, or build another on the same ground, and to the same extent, and would not be guilty in so doing, under the law, of obstructing the highway or road.

The defendant asked the following declaration, which was refused, to which he excepted: Although the jury may believe from the evidence that the road in question on the lands of the defendant had been located by Fox, Hall & Bedford, as Commissioners appointed by an act of the legislature of this State, and that the county court of Andrew county caused the same to be opened as a public road; yet, if the jury further find from the evidence that said road was not kept up as a public road, and that the public ceased to use the same as a public road for ten years next before defendant fenced the same, then the public lost the easement therein, and defendant is not liable for fencing the same.

The action of the court in giving and refusing the above instructions is the error complained of. The record shows that the evidence tended to prove that the road, across which defendant erected his fence, had ceased to be used by the public, and had been abandoned for more than ten years as a public road before the erection of defendant's fence; that the road in question had been surveyed, located and established under an act of the legislature approved March 14th, 1859, and that defendant, in 1873, built a fence across the same, on his own land, so as to obstruct the travel. When the road was located and established, in pursuance of the act of the legislature authorizing its establishment, the right of the public to use it as a road became vested. The easement thus acquired over the land upon which it was located could only be defeated either by a discontinuance or vacation of the road by the county court on proper proceedings instituted for that purpose, or by a...