State v. Haworth
| Decision Date | 06 February 1939 |
| Docket Number | No. 6031.,6031. |
| Court | Missouri Court of Appeals |
| Parties | STATE ex rel. McINTOSH v. HAWORTH et al. |
Appeal from Circuit Court, Barry County; Emory E. Smith, Judge.
"Not to be published in State Reports."
Proceeding by the State of Missouri, on the relation of George McIntosh, against Edith Haworth and another to have a road declared a public road by prescription. From an adverse judgment, defendants appeal.
Cause reversed and remanded with directions to dismiss plaintiff's bill.
Donnell & McDonald and George F. Wise, all of St. Louis, for appellants.
E. C. Medlin, of Monett, and Royle Ellis, of Cassville, for respondent.
This is a proceeding to have a road across the land of appellants, Edith and Loren Haworth, declared a public road by prescription. The lower court found that the road was a public road and that the appellants were maintaining a fence across it, and enjoined appellants from obstructing the road, and they have appealed from this judgment of the court.
The petition alleges that the appellant Edith Haworth is the owner of the southeast quarter of section 21, township 24, range 27, in Barry County, Missouri, and that appellant Loren Haworth is occupying this land; that respondent, George McIntosh, the relator, is the owner of the northeast quarter of section 20, township 24, range 27, and the west half of the northwest quarter of section 21, township 24, range 27, and the east half of the southwest quarter of section 16, township 24, range 27, comprising 320 acres; and that 80 acres of the respondent's land is best served by the road in question; that the road enters the land owned by appellant Edith Haworth 100 yards north of the southwest quarter thereof and runs thence in a northeasterly direction to the northeast quarter of said 40 acres; that the road is a public road and that the public has used the same openly, notoriously, peaceably and quietly during a period of fifty years or more, up until 1933, when a fence was placed across it by appellant Edith Haworth and that later another fence was placed across the road and maintained by appellant so that no person or vehicle can travel upon and along the road. The petition further alleges that appellant was given notice to remove the fence but has failed to do so. The prayer seeks to enjoin the appellants from maintaining the obstruction in the road and a mandatory order that they be required to remove the obstruction.
The appellants, by their answer, admit that Edith Haworth owns a life estate in the 40 acres of land and that they live on the land. The appellants further deny generally each and every allegation of the petition and plead that the road is merely a permissive private passway in which the public has no interest and that the passway has been obstructed by the falling of trees and the building of gates and fences across it for more than 20 years before this action was brought.
We have but one question to decide in this case — that is whether or not the road in question was a public highway at the time it was fenced or obstructed by appellants. If it was a public highway then of course they would have no right to obstruct it; if, however, the road was not at that time a public highway then the appellants would have a right to erect and maintain the fences and barriers in question.
The evidence disclosed that no public money or labor has ever been expended on this road, nor has it ever been opened by any order of the county court. It is admitted by appellants and respondent that under the statutes of Missouri, no highway could be established as a public highway by prescription since 1887 unless public money or labor had been expended on it and in order to establish a highway as a public highway by prescription where there has been no expenditure of public money or labor thereon there must be proof of adverse user for the statutory period of ten years prior to 1887. State v. Kitchen, 205 Mo.App. 31, 216 S.W. 981; Laws of 1887, page 257, section 57; R.S.Mo.1889, section 7847; R.S.Mo.1899, section 9472; R.S.Mo.1909, section 10446; Laws 1917, p. 450, section 13; R.S.Mo.1919, section 10635; R.S.Mo.1929, section 7839, Mo.St.Ann. § 7839, p. 6738. Therefore, in passing on this case, we must determine whether or not there is sufficient proof of adverse user prior to the year 1887 to establish the highway or road in question as a public highway or road by prescription.
The relator, George McIntosh, testified that he was 76 years of age; that his family came to Missouri from Pennsylvania in 1870 and that he came to Missouri in 1871; that at the time he came there was a road running across the southeast quarter of section 21, township 24, range 27, in Barry County, which is known as the Haworth or Laidlaw land and that the road ran practically north and south at that time and that he and his sons owned 320 acres of land near the Haworth land; that he had lived in Barry County 64 years but had been blind for 27 years prior to the time of the trial of the cause in the lower court. He testified that there had been a road through the Haworth land since he first same to Barry County, in 1871, but his description of the direction in which this road ran at the time he lost his eyesight is different from the description of the road given in his petition. He places the road as running practically north and south, while the petition alleges that the road in question, and which it is sought to establish as a public highway, enters the Haworth 40 acres 100 yards north of the southwest quarter thereof and runs thence in a northeasterly direction to the northeast corner of said land. He testified that this road was used as a public road up to the time he lost his eyesight, 27 years before the trial. There was testimony by other witnesses that there had, for 40 or 50 years, been some kind of a road across the Haworth farm.
Tom Laidlaw testified, for appellants, that he was 66 years of age and had known the Haworth tract of land since September 1883, at which time he was familiar with the road in question. He testified that it started with the Gunter road which was established about 45 years ago and came into the west end of the Haworth place and angled through the Haworth 40 acres; that in 1883 it was a dim trail and that some one would pass maybe once a week; that in the spring of 1884 his father fenced in the land and set a fence at the time 150 to 200 feet further to the northwest and that the old roadbed was changed 10 to 15 rods along at this point and the old road was entirely fenced off; that in 1887 or 1888 trees were cut across the road and that in 1896 or 1897 tree tops were thrown all over the road by wood cutters, who cut down trees on the land and that they remained some time;...
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