Walker v. Likens

• Decision Date: 31 January 1857
• Citation: 24 Mo. 298
• Parties: WALKER et al., Plaintiffs in Error, v. LIKENS et al., Defendants in Error.
• Court: Missouri Supreme Court

24 Mo. 298

WALKER et al., Plaintiffs in Error,

v.LIKENS et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1857.

1. The fact that the damages caused by laying out a road under the act of March 3d, 1851 (Sess. Acts, 1851, p. 274), may not have been assessed by the commissioners appointed under said act to locate said road, will not entitle the owner of the land through which said road passes to treat as trespassers those who, under the order of the County Court and for the purpose of completing said road, enter and cut timber upon the line of the road as located.

2. Quere, whether an appeal will lie from the proceedings of the County Court under the said act.

Error to Henry Circuit Court.

This was an action to recover damages for an entry upon and the cutting of timber upon the land of plaintiffs. Defendants justify the entry and cutting of timber--Likens, one of defendants, alleging that he made the entry as a road overseer under the order of the County Court of Henry county,--Freeman, the other defendant, setting forth in his answer that he was one of the hands allotted to open the road, and that in cutting the timber he acted under the direction of the overseer.

The court instructed the jury as follows: “1. The court instructs the jury that if they believe from the evidence that the road in controversy ran over the land of plaintiffs in the petition mentioned, and that plaintiffs did not consent thereto, and that no assessment of damages was made by the commissioners to plaintiffs for the said road running over their land, said road is null and void as to plaintiffs; and if the jury further believe that defendant, Likens, was a party and signed said original petition, and aided and assisted in procuring the location of said road over plaintiffs' land, and knew that the damage had not been assessed, he cannot justify under the order appointing him overseer, and the jury must find for the plaintiffs as to defendant, Likens; and if the jury further believe that defendant, Freeman, aided and assisted in the procuring the said road to be located on plaintiffs' land otherwise than as a justice of the County Court, the appointment of Likens as overseer, and his working as a hand on said road, under said overseer, is no protection to him; if he knew that such damages had not been assessed, they must find for plaintiffs against Freeman. 2. If they further believe from the evidence that said road, as petitioned for, was to start at the northwest corner of Tutt's farm and thence to run by W. Davis, thence by Gilliam's farm, thence to Carpenter's, and they further find that said road as located did not touch Gilliam's farm, one of the intermediate points designated in said petition, and that defendants knew it, but said road missed the same one quarter or one-half a mile; that not running by said intermediate point renders the whole of said road null and void, and they must find for plaintiffs. If the jury shall believe from the evidence that defendant, Likens, although acting as overseer, did himself, or others by his direction, cut the timber mentioned in said plaintiffs' petition off the line of the road as marked out by the commissioners, they must find a verdict against defendant, Likens. 3. If the jury shall believe from the evidence that defendant, Freeman, acting under the direction of Likens as overseer, did himself, or that others by his assent or direction, cut the timber of plaintiffs, and that Freeman knew that he was cutting out the road off the line established by the commissioners, they must find a verdict against the defendant, Freeman. 4. The court instructs the jury that the road should be cut on the line established by the commissioners, and that the blazed trees are to be the centre of the road, and that the road should be cut out not over thirty feet wide; and that if the road was not so cut out through plaintiffs' timber, it is not on the line established by the commissioners.”

The following instructions asked in behalf of defendants were also given to the jury: “5. If the jury should believe from the evidence that the defendants did not know that the commissioners had not run the road to the points mentioned in the petition therefor, and did not know that plaintiffs' damages had not been assessed by the commissioners, they must find a verdict for defendants, unless they shall believe that they cut or had cut timber on plaintiffs' land outside of the line of said road as established by the commissioners. 6. If the jury shall believe from the evidence that the commissioners located said road from the starting point, and to the other points specified in the petition therefor, and took into consideration and did assess plaintiffs' damages occasioned by the laying out said road through their land, and that Likens was appointed road overseer of road district No. 2 on said road, and he, as such overseer, and Freeman, as a hand under him, cut the timber on plaintiffs' land, and did not cut any outside the line of said road, as located by the commissioners, they must find a verdict for the defendants. 7. If the jury believe from the evidence that the defendant, Levi Likens, was appointed by the County Court of Henry county overseer of road district No. 2, on the road leading from A. M. Tutt's farm, in the direction of Wilson D. Carpenter, and that said Likens had notice of said appointment, and in pursuance of said order and notice did cut the timber mentioned in the petition, and cut no more than was necessary to open said road thirty feet wide, and cut no timber outside of the line on which said road was laid out by the commissioners, they will find a verdict in favor of said defendant, Levi Likens, unless they shall believe from the evidence that the defendant,...