State v. Wells

• Decision Date: 31 October 1879
• Citation: State v. Wells, 70 Mo. 635 (Mo. 1879)
• Parties: THE STATE v. WELLS, Appellant.
• Court: Missouri Supreme Court

70 Mo. 635

THE STATE

v.WELLS, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Jackson Criminal Court.--HON. H. P. WHITE, Judge.

AFFIRMED.

Kagy & Rucker for appellant.

1.If a road was established at all, it must have been done by the county court, and under the statute in force at the time.R. S. 1855, p. 1390, § 15.The action of the court should appear of record.R. S. 1855, p. 536, § 23;Medlin v. Platte Co.,8 Mo. 235;Milan v. Pemberton,12 Mo. 599.There being no proof that any such record had been made and lost, parol evidence of the existence of the road was inadmissible.Parry v. Walser,57 Mo. 169;Foulk v. Colburn,48 Mo. 225.

2.A road may be established, we admit, by prescription, but there is no evidence of that in this case, and no evidence of such a dedication and acceptance as the law requires.Mo. Institute v. How,27 Mo. 211;State v. Young,27 Mo. 259;State v. Culver,65 Mo. 607.Nor is there any evidence that defendant knew that the road was used and acquiesced in it.Notice is necessary.Daniels v. R. R. Co.,35 Iowa 129;Warner v. Jacksonville,15 Ill. 237;Watt v. Trapp,2 Rich. 136;Harding v. Jasper,14 Cal. 642;Hutto v. Tindall,6 Rich. 396;Hogg v. Gill,1 McMull. 329;Scott v. State,1 Sneed 629;Hewins v. Smith,11 Met. 241;Gibson v. Durham,3 Rich. 85;Stacey v. Miller,14 Mo. 478;State v. K. C., St. Jo. & C. B. R. R. Co.,45 Iowa 139.

3.The maxim ignorantia facti excusat has direct application here.It nowhere appears in the evidence that the defendant had any knowledge of the existence of a legally established road.Regina v. Langford, Car. & Marsh.602, 605; Goforth v. State, 8 Humph.37.

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, without objection on the part of the owner, is of itself evidence of a dedication.Cincinnali 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;State v. Walters,69 Mo. 463.

SHERWOOD, C. J.

The defendant was indicted for obstructing a public road, and convicted.

1.PUBLIC ROADS: title by user.

Even if we concede that twenty years use of a road by the public, is necessary to confer an easement, the testimony is ample for that purpose, one of the witnesses testifying that there had been a road on the land now owned by defendant for twenty years.And another witness testified that he had known the road in question as a road for about thirty seven years, and that it had been worked.It is true this witness also stated that the road had been “changed in some places,” but this we regard as unimportant, for the reason that no such change appears to have occurred in the road where it runs through defendant's land, nor that such change took place within twenty years before the indictment was found.The subject now being considered has been recently and extensively discussed in the State v. Culver,65 Mo. 607, and in the State v. Walters,69 Mo. 463.In the latter case the doctrine is maintained that “the public may acquire the right to the use of a road or easement on the land of another, when such road has been established in accordance with statutory enactments, on land condemned for that purpose, or when the owner of the land has by some unequivocal act made a dedication of it to the public, or from long use of a road as such by the public, acquiesced in by the owner, and adverse occupancy and use of the same for a period of time equal to that prescribed by the statute of limitation for bringing actions of ejectment.”So that ten years adverse occupancy and use of a road by the public would be sufficient, if acquiesced in by the owner, to vest in the public an easement in the road and cause it to become a highway.

2. ____: discontinuance by county court.

If there had been such a dedication or adverse possession of the road as above contemplated, it was altogether immaterial that the county court refused to relocate the road, for the reason that “it had no knowledge of the establishment of the road sought to be changed.”Nor was it of any consequence that the county court instructed the road overseer not to do anything to recognize the road as a public road, because it was not such a road.The vested rights of the public, if any had been acquired, could not be divested by...