State v. Walters

• Decision Date: 30 April 1879
• Parties: THE STATE v. WALTERS, Appellant.
• Court: Missouri Supreme Court

69 Mo. 463

THE STATE

v.WALTERS, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Atchison Circuit Court.--HON. H. S. KELLEY, Judge.

B. Pike and M. McKillop for appellant.

When there is no evidence of a clear and unequivocal intention to dedicate a highway to public use, there must be an acquiescence by the owner for twenty years in the free use of the highway to authorize the presumption of an intention to dedicate the land to that use. Missouri Institute v. How, 27 Mo. 211; 3 Kent Com., 451; State v. Culver, 65 Mo. 610; Angell on Highways, 116.

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

No deed or express grant is necessary to a dedication of land to public use. It may be proved by any evidence which shows the intention of the owner of the land to make such dedication. Rutherford v. Taylor, 38 Mo. 315. Long use by the public, and acquiescence therein by the owner, are of themselves evidence of dedication. Cincinnati v. White, 6 Peters 431; Carlin v. Paul, 11 Mo. 32; Gamble v. St. Louis, 12 Mo. 618; Onstott v. Murray, 22 Iowa 457. If the public, with the knowledge of the owner, has claimed and continuously exercised the right of using land for a public highway, for a period equal to that fixed by the statute for bringing actions of ejectment, their right to the highway as against such owner is complete. State v. Young, 27 Mo. 259; State v. Culver, 65 Mo. 607.

NORTON, J.

At the January term, 1876, of the circuit court of Atchison county, the defendant was indicted for obstructing a public highway. At the May term, 1876, of said court, he was duly arraigned, pleaded not guilty, and a trial being had, was convicted. The evidence on the part of the State showed that the road in controversy had been traveled since 1850; that in 1860 it was thrown about 150 yards south by a fence built by one Pebly; that from 1860 to December, 1875, it had been used continuously by the public as a road, and an overseer appointed over it, who had repaired it and kept it in good condition; that at said last mentioned date the defendant built two fences across it and made a cattle lot, whereby the road was completely obstructed. Upon a trial of the cause defendant was found guilty and his punishment assessed at a fine of $25.

It is not claimed that the road which defendant is charged with obstructing was ever located, laid out and opened under the statute providing for locating and opening public roads and highways. The evidence on the part of the State tended to show that the road in question had become such by long public use, and from its having been worked and kept in repair as a public road by road overseers duly appointed from 1860 to 1875, when it was obstructed by defendant as charged in the indictment. We are asked to review the action of the trial court on the ground...