The State v. Transue

• Court: Kansas Court of Appeals
• Writing for the Court: BROADDUS, P. J.
• Citation: The State v. Transue, 111 S.W. 523, 131 Mo.App. 323 (Kan. App. 1908)
• Decision Date: 08 June 1908
• Parties: THE STATE OF MISSOURI, Respondent, v. GEORGE W. TRANSUE, Appellant

111 S.W. 523

131 Mo.App. 323

THE STATE OF MISSOURI, Respondent, v. GEORGE W. TRANSUE, Appellant

Court of Appeals of Missouri, Kansas City

June 8, 1908

Appeal from Clinton Circuit Court.--Hon. Alonzo D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

John A Cross and R. H. Musser for appellant.

(1) The evidence adduced to support the indictment was of an alleged obstruction of a ford leading from the Plattsburg and Liberty road, crossing Smith Fork Creek, on the west side of the bridge and east of defendant's land. There was no allegation of this character in the information and all evidence in relation thereto, was outside of the case, and should have been rejected, after defendant's objections thereto. Kelley, Criminal Law, sec. 184; State v Cox, 29 Mo. 475; State v. Campbell, 80 Mo.App 110. (2) This ford or passageway along the west side of this bridge was not the Plattsburg and Liberty road, nor was same a highway within the meaning of the law. Gurley v. Railroad, 93 Mo. 445; Gurley v. Railway, 104 Mo. 226. (3) Before a defendant can be convicted of having obstructed a public highway, the state must show the establishment of a public road at the place in question. State v. Cunningham, 61 Mo.App. 188; State v. Parson, 53 Mo.App. 135; State v. Ramsey, 76 Mo. 398; State v. Scott, 27 Mo.App. 541; Galhar v. Gates, 20 Mo. 238. (4) There is no pretense that this ford is a part of the Plattsburg and Liberty road, as established by act of the General Assembly, or that public money and labor was expended on said road at the time of this conversation (if admissible), so as to constitute an acceptance thereof, but on the contrary the evidence of J. W. Moreland, overseer, shows no acceptance, and the deed of Davis shows a withdrawal of same, if made, and prior and subsequent owners according to testimony of this official, whose acts the statute recognizes, shows that at their objection he refused to work said ford. The burden of proof on this proposition was upon the State and having failed to show same, this should have taken the case from the jury. Rosenberger v. Miller, 61 Mo.App. 425; Vossen v. Dantel, 116 Mo. 379; McShane v. City, 79 Mo. 41; Landis v. Hamilton, 77 Mo. 560; Brinck v. Collier, 56 Mo. 164; City v. Ratekin, 30 Mo.App. 416; Irwin v. Dixon, 9 How. 10; Stacy v. Miller, 14 Mo. 478; Baker v. Vanderberg, 99 Mo. 378, 391; Institute v. How, 27 Mo. 211; Becker v. City, 37 Mo. 13; State v. Young, 27 Mo. 259; Price v. Breckenridge, 92 Mo. 378; Washburn on Easements (3 Ed.), 188; Baker v. Squires, 143 Mo. 97, 98. (4) Defendant's demurrer should have been sustained at the close of the State's testimony, for the reason: That the evidence fails to show any dedication of the land used for the ford, to the public. Because such user, if any, was not adverse, but permissive merely and defendant, nor his prior grantor's thereby lost title to said land. Because there was no showing, which burden was upon the State that said ford or land taken therefor, was accepted and public money and labor expended thereon, by duly constituted agents of the county. Because such obstructions, if any were shown to have been wilfully and knowingly made, but on the contrary that defendant and his prior grantors had used all necessary precautions by competent surveys, etc., to ascertain the true lines of their land, and had at all times made claim thereof.

H. T. Herndon for respondent.

(1) The question presented in the court below and on appeal is whether or not the road charged to have been obstructed was a public road, and it was submitted to the jury upon the following theories: First. That the road was an established public road by act of the Legislature of 1855, and known as the Plattsburg and Liberty road, and that a part of this road was obstructed by the defendant. Second. That the land on which defendant moved his fence was a part of a public highway and became such by dedication of prior owners of the adjacent premises; and acceptance thereof by the public. Third. That said portion of land became a part of the public highway by user thereof for a period of more than ten years on the part of the public and the expenditure of public money thereon for repairs. R. S. 1899, sec. 9472. (2) That a public highway may be established by dedication and acceptance is well established by the decisions of the courts of this State. Golden v. Clinton, 54 Mo.App. 100; Rector v. Hart, 8 Mo. 448; Ross v. St. Charles, 49 Mo. 509; Baker v. Vanderberg, 99 Mo. 378. (3) It is also settled that a highway may become such by adverse use by the public, acquiesced in by the owner. Zimmerman v. Snowden, 88 Mo. 218; State v. Wells, 70 Mo. 635; State v. Walters, 69 Mo. 463. (4) Dedication may be established by acts in pais. Campbell v. Kansas City, 102 Mo. 326.

OPINION

BROADDUS, P. J.

The defendant was tried on information and convicted on a charge of obstructing a public highway. A highway existed at or near the place where the defendant is charged with having obstructed it, prior to the year 1850, at which time the Legislature of the State passed an act providing for the location of a State road from Owens Ferry on the Missouri River in Clay county to the Iowa State line. [Laws of Mo., 1855, p. 629.] The commissioners appointed for the purpose, in pursuance of the act, located the road, forty feet in width, between the points named, which passed through the city of Plattsburg in the county of Clinton. At a point about one mile east of said city the road crossed what is known as Smith's Fork Creek, or Smith's Fork of Platt River, over which there was a bridge at that time. Forty-three years ago James H. Birch, Jr., who was then owner of the lands on both sides the road obtained an order from the county court of Clinton county whereby a change was made in the road north of the bridge, since when it has remained practically unchanged. The old bridge has long since disappeared and at least two others have been built in its place, the last of which now rest upon the pillars from which the superstructure of the former had been carried away by high water in the creek. There was what the witnesses called a ford at the creek, just west of the bridge, to which a passway diverged from the established road a short distance north of the bridge and which after it passed over the creek again entered the said road. It was this passway and not the road which defendant is charged with having obstructed. Birch conveyed his land to James Dykes, he to Joseph Williamson and he in turn conveyed to W. F. Davis, who conveyed the land to a Mr. Thomas, and the title finally vested in the defendant. While Davis was in possession of the land he caused his fence to be rebuilt along on the west and to the north side of the bridge which left a strip of ground between the fence and road through which this passway was located, the latter however not occupying all of said space. It was shown that the fence was made over thirty years ago, and there had been a fence there before that time, and that Davis was specific in his instructions to his employee to put his fence where the old one stood. It was shown that afterwards this fence was torn down by Mr. Thomas who had then become the owner of the land, and who erected a new fence that took into his enclosure six or eight feet of said space; but that when he was threatened with prosecution he moved it back about four feet, where it remained until the defendant moved his fence farther out which had the effect of obstructing the passway itself although he did not include all of said strip, in his enclosure.

All the witnesses on both sides testify to the use of the passway by the public for more than forty years. There was evidence that at times it was worked by the road authorities, and that at times the debris that had accumulated in the ford of the creek was cleared out to keep it in passable condition. It is to be gathered from the testimony that the passway was used continuously during all those years by the people who traveled the road in going to and from the city of Plattsburg. That by many the ford was preferred to the bridge as a means of crossing the stream, and that its use and occupation was permitted without dissent by all the owners of the land adjoining except in the instance of Thomas, at the time when he moved his fence out and then back again as mentioned.

The defendant contends first that the evidence does not support the allegations of the information. The information charges that defendant obstructed the Plattsburg and Liberty Road where said road crossed Smith's Fork of Platte River; and that the proof to sustain the charge was of an obstruction of a ford leading from Plattsburg and Liberty road crossing Smith's Fork Creek on the west side of the bridge and east of defendant's land. If the variance between the information and the evidence depends upon the use of the descriptive words Smith's Fork of Platte River used in the information...