State v. Young

• Court: Missouri Supreme Court
• Writing for the Court: SCOTT
• Citation: State v. Young, 27 Mo. 259 (Mo. 1858)
• Decision Date: 31 July 1858
• Parties: THE STATE, Defendant in Error, v. YOUNG, Plaintiff in Error.

27 Mo. 259

THE STATE, Defendant in Error,

v.YOUNG, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1858.

1. No owner of land over which a road passes can change its location in any other manner than that prescribed by law.

2. When user alone, disconnected with any act of the owner showing an intention to dedicate, is relied on as evidence of a dedication of a right-of-way to the public, it must continue the length of time necessary to bar an action to recover the possession of land; the same length of time of nonuser would, it would seem, be necessary to raise a presumption of abandonment by the public.

Error to Dallas Circuit Court.

This was an indictment for obstructing a public road. The court gave the following instruction at the instance of the prosecution: “If the jury believe from the evidence that before the 1st day of May, 1856, the County Court of Dallas county had made an order establishing a county road in the county of Dallas, and had directed the same to be opened and described as alleged in said indictment, and that the same had been opened, and that the defendant, since the 1st day of May, 1856, and before the finding of this indictment, in the county of Dallas, unnecessarily obstructed said road by erecting a fence across the same, they should find defendant guilty.”

The court refused to give the following instruction asked by defendant: “If the jury believe from the evidence that before the fence was made across the road, the travel on the road near the place had changed, and that this new location, and not the old road, had been worked by the overseer and hands, and had thus been kept open and in order, and that both ends of this portion of the old road, where the new road left it and again entered it, had been brushed across, and that the general travel was on this new road before the fence was erected, and the old portion of the road had been abandoned as a travelled road, they will find the defendant not guilty.”

The defendant was found guilty, and fined ten dollars.Wright, for plaintiff in error.

I. The instruction given on the part of the State is erroneous; the second instruction asked by defendant should have been given. (6 Pet. 513.)

Ewing (attorney-general), for the State, cited Wharton C. L. 806; Elkins v. State, 2 Humph. 544; Corn v. Belding, 13 Metc. 10; R. C. 1855, p. 1382.

SCOTT, Judge, delivered the opinion of the court.

It is not easy to see how this judgment can be reversed, as there is evidence in the record...