State v. Miller

• Decision Date: 21 February 1905
• Parties: STATE v. MILLER.
• Court: Missouri Court of Appeals

85 S.W. 912

110 Mo. App. 542

STATE v. MILLER.

St. Louis Court of Appeals. Missouri.

February 21, 1905.

HIGHWAYS — OBSTRUCTION — WARRANT OF COURT — DEFENSE — COUNTY COURTS — JURISDICTION — COLLATERAL ATTACK.

1. Where lawful and timely notice has been given of a petition for the opening of a new road or for a change of road, the county court has power, under the direct provisions of Rev. St. 1899, §§ 9415, 9416, and Rev. St. 1889, § 7798, to act on the petition during the term of the court at which it is presented.

2. County courts have exclusive jurisdiction of proceedings to open and change roads, and, where one of such courts finds that the requisite notice has been given of intention to present a petition for the closing of a road, mere errors of procedure in ordering the closing of the road in question cannot be collaterally attacked.

3. A person acting on the warrant of the county court in closing a road, in a proceeding in which the court found that the requisite notice had been given of intention to present a petition to close the road in question, is protected by the warrant from a prosecution for obstructing the road.

Appeal from Circuit Court, Texas County; Leigh B. Woodside, Judge.

John P. Miller was convicted of obstructing a road, and he appeals. Reversed.

Lamar, Barton & Lamar and T. J. Hale, for appellant. W. L. Heitt, for the State.

Statement.

GOODE, J.

The defendant, Miller, was informed against and convicted of the offense of unlawfully obstructing a public highway in Texas county, Mo., leading from Cabool to Mt. Grove, and known as the "Cabool and Mt. Grove Road." The alleged obstruction was placed in said road where it crossed defendant's farm, and consists of a fence built across the road in the year 1899. The information was filed by the prosecuting attorney November 11, 1903, and averred that the fence, though originally erected across the road in 1899, had remained there as an unlawful obstruction ever since. In 1897 a petition was presented to the county court of Texas county, signed by many persons, and reciting that more than 12 of them were freeholders; asking that the road in question be diverted from part of its course, and a new route opened for a designated distance. In other words, the petition was for a change of the road; describing the old route, and the one the petitioners wished opened in lieu of it. Due notice was given, by posting handbills, of the intended application for the change of the road; and, on proof of this fact, the county court entered an order to grant the change petitioned for, at the expense of the petitioners, and ordered the road commissioner to survey and mark out the course of the road, take relinquishments of right of way, and report what he had done at the August term, 1897, of said court. His report was filed in due time, and on November 3, 1897, the court approved it. The report is quite full as to the course the road should run after the contemplated change, the names of persons who had relinquished right of way, the description of their property, the land given for right of way, and the names of two landowners, through whose lands the road would run, who refused to relinquish right of way. It contains no estimate of the cost of the construction of the new road, in making culverts, bridges, and grading, nor a statement of the amount of damages claimed by the property owners who had refused to relinquish right of way. Subsequently, in March, 1899, a petition signed by numerous citizens was presented to the county court, asking the court to reopen the road upon the course it had run previous to the change. This petition was rejected. The following admission appears in the transcript: "It is admitted in open court by the prosecuting attorney and the defendant that the defendant got a written order from the clerk of the county court, which was given by the direction of a majority of the judges of the county court, to close up the road in question." It was shown the court was in session when the order to close the old route was given to the defendant. He acted under the order, and then turned it over to the railway company whose line the new road crossed, for the company to go by in putting in a crossing. Part of the old road which was abandoned in favor of the new one ran across the defendant's farm, and he built a fence across it. It appears that the defendant was opposed at first to the change of route; but, after it had been ordered by the county court, and a written order had been issued to him to open the new route and close the old one, he obeyed the order.

Of its own motion, the court instructed the jury as follows:

"(1) The court declares the law to be that, where it is shown that a road has been used by the public and worked by the road overseer for a period of ten years, that it is sufficient evidence to find that it was a public road, within the meaning of the road laws of this state, and to which the public have a vested right.

"(2) The right of the public to an established road could not be divested except in the way directed by the statute, and the county court has no jurisdiction to make an order establishing a new road or changing an old one until it has been examined and located by the road overseer; and either the report of said road overseer must show that the money has been paid with which to construct the same, or that it has been constructed by the petitioners.

"(3) Where a petition for a change of road sets out specifically the ground upon which it is to run, its courses and distances, neither the commissioner nor the county court can afterwards change said route, and grant a change of road upon a different line from that set out in the petition, and any order attempting so to do is absolutely void.

"(4) The court further declares that if the defendant, John P. Miller, in the month of August, A. D. 1899, did unlawfully obstruct a public road in Texas county, Missouri, to wit, a road leading from Cabool to Mountain Grove, Missouri, and known as the `Cabool and Mountain Grove Road,' by building a fence across the same, and if he has maintained said fence across said road, within one year before the filing of the information in this case, then he should be found guilty of obstructing a public road."

All the instructions asked by the defendant were refused. They need not be copied.

Opinion.

It is conceded by the state that the defendant acted pursuant to the written order or process of the county court in closing the old road, but it is contended that the order affords him no protection, because said court was without jurisdiction of the matter. The warrant or process to the defendant is not before us, but the state has made no point against its form or regularity, and we shall assume, in disposing of the appeal, that the order was fair on its face, contained nothing to show the county court acted without jurisdiction of the cause, and directed the defendant to close a stretch of the old road which included the point where he built his fence. This is taken for granted in the briefs of both parties, and may be considered as covered by the admission made in open court. The essential controversy turns altogether on whether the county court had the jurisdiction requisite to enable it to issue a writ that would protect the defendant in closing the old road. The jurisdiction of the county court is assailed on several grounds. It is said the court granted the petition for the change of road, and ordered the road commissioner to mark out the new route, without previously finding that the petition was signed by 12 freeholders; without finding that notice of the intended application had been given, as required by the statute, at the term of court when the petition was presented; before the court had heard testimony as to the necessity or practicability of the change, the probable damages to nonconsenting land owners, and the expense of locating the changed road; and before the road commissioner had been ordered to view and mark out the road, or had made a report of the...