State v. Feitz

• Decision Date: 03 November 1913
• Citation: 174 Mo. App. 456,160 S.W. 585
• Parties: STATE ex rel. RUCKER, Pros. Atty., v. FEITZ.
• Court: Missouri Court of Appeals

160 S.W. 585

174 Mo. App. 456

STATE ex rel. RUCKER, Pros. Atty., v. FEITZ.

Kansas City Court of Appeals. Missouri.

November 3, 1913.

1. HIGHWAYS (§ 158) — OBSTRUCTION — FENCE.

The erection and maintenance of a post and wire fence upon a part of the public highway constituting an unlawful obstruction thereof and an interference of rights of the public was a public nuisance, a purpresture, that should be abated.

2. INJUNCTION (§ 102) — GROUNDS OF RELIEF — CRIMINAL ACTS.

Courts of equity will not lend their aid to an enforcement of the criminal laws or in restraining criminal acts.

3. HIGHWAYS (§ 158) — GROUNDS OF RELIEF — INADEQUACY OF REMEDY AT LAW.

The remedies under Rev. St. 1909, §§ 10478, 10533, 11764, for the removal of obstructions in public highways and for the punishment of those willfully setting up such obstructions, are not exclusive, and, where defendant maintained an unlawful obstruction upon a public highway and persisted therein after a prosecution and fine, equity had jurisdiction to give a speedy relief by mandatory injunction to compel its removal.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Action in equity by the State of Missouri, on the relation of Roy W. Rucker, Prosecuting Attorney of Chariton County, Missouri, for mandatory injunction against Chris Feitz. Judgment for plaintiff, and defendant appeals. Affirmed.

S. A. Davis, of Brunswick, and Jones & Conkling, of Carrollton, for appellant. Roy W. Rucker, of Keytesville, for respondent.

JOHNSON, J.

In 1906 defendant became the owner of a farm on the south side of a public road in Chariton county which had been recognized and used as a public highway for more than 60 years. Originally the road was bounded by rail fences and practically was level, but after years of use by the public the traveled surface, which was near the middle of the right of way, wore off and was washed down, leaving embankments on each side which were not ordinarily used by travelers. In time the rail fences decayed and disappeared, leaving the boundaries of the highway to be defined by hedge fences which the landowners had planted on each side just inside the rail fences. Shortly after he purchased the land defendant built a post and wire fence eight or ten feet north of his hedge fence to mark the north boundary of his farm, thereby encroaching by that space upon the public highway. He was indicted and convicted in the circuit court of Chariton county, on a charge of obstructing a public road, and appealed to this court. We affirmed the judgment (State v. Feitz, 154 Mo. App. 578, 136 S. W. 746), and in the opinion said: "There was abundant evidence to show that the public recognized the whole lane, or space between the hedge fences, as the public road, and that it was frequently worked by the public, and that frequently, when the main traveled space was very muddy, the side or top of the embankment (or ridge, as called by some of the witnesses) next to defendant's hedge would be used. Considering the whole evidence, it seems to us that the finding of the jury could scarcely have been otherwise than for the state. And if that in defendant's behalf were alone considered, it would have sustained a verdict of guilty. Judging by the examination of witnesses and parts of suggestions made in defendant's behalf, he seems to think the state should have been required to prove the whole road space was traveled and worked. That is a condition rarely existing with the country roads. Again, much is said of the `ridge' lying above the actual traveled space, but that is also a common condition. Much was said in printed and oral argument about whether the road had been dedicated or whether it had become a road by limitation. It is enough to say of this that it is quite certain that it was one or the other, and as either will suffice it is unimportant which it was. We do not agree that there was no evidence of dedication. In the circumstances shown in evidence it may very reasonably be inferred that a dedication was made."

Defendant paid the fine and costs assessed against him, but failed and refused to remove the fence, which still remains where he placed it. The prosecuting attorney of Chariton county instituted the present proceeding, which is an action in equity to obtain a mandatory injunction to compel the removal of the fence on the theory that its maintenance as an obstruction in the highway is a continuing public nuisance. On the final hearing the court decided the issues in favor of plaintiff and rendered judgment in accordance with the prayer of the petition. Defendant appealed. The court made findings of fact in the judgment rendered, from which we quote as follows: "That said post and wire fence so erected and maintained as aforesaid by the defendant constitute an obstruction to said public road and highway resulting in a great inconvenience and damage to a large number of the citizens of the state of Missouri, and especially of the citizens of Chariton county, Mo., who travel along said public road and highway, and that said post and wire fence so erected and maintained by the defendant here constitutes and is a...