Walker v. Newhouse

• Decision Date: 31 March 1851
• Citation: 14 Mo. 373
• Parties: NEAL WALKER v. JOHN S. NEWHOUSE.
• Court: Missouri Supreme Court

14 Mo. 373

NEAL WALKER

v.JOHN S. NEWHOUSE.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

Newhouse, the appellee, brought his action of trespass quare clausum fregit, in St. Louis Circuit Court against Walker, the appellant. Walker appeared, and pleaded several pleas, to some of which a demurrer was sustained. As the questions arising on the demurrers are not brought into this court, it is not necessary to set out the progress of the litigation in settling the pleadings. The pleas, as finally settled, were the following: 1st. The general issue. 2nd. A plea of license. 3rd. A plea stating that on the 19th of November, 1839, John Riggin was the owner in fee of the locus in quo, and by deed of that date did grant to the defendant a right of way over the locus, and did make out, assign and designate the said way, and did put the defendant in the use and enjoyment of the same, and the defendant justifies the trespasses under the said grant of way. 4th. A plea stating a grant of way by John Riggin, the owner of the locus, and justifying the trespasses under said grant, as in the former plea. The replications to these pleas were as follows: 1st. To the general issue. 2nd. A traverse of the license stated in the 2nd plea. 3rd. To the 3rd plea three replications: First. That Riggin did not grant the way. Second. That Riggin was not owner in fee. Third. That Riggin did not mark out said way. 4th. To the fourth plea two replications. First. That Riggin was not owner in fee. Second. That he did not grant the way. The issue thus found was tried by a jury.

The plaintiff proved that he had been for some years in possession of a farm, over which the defendant claimed the right of way in question, and that at various times before the bringing of this suit, the defendant with his teams and carriages passed and repassed across and over his farm. This was the plaintiff's case.

The defendant then introduced witnesses who proved, in substance, that they were acquainted with the premises, and that defendant had frequently traveled over plaintiff's land from defendant's land to the Bellefontaine road. The testimony of the witnesses tended to prove that the defendant had no other way of getting from his house and land to the public road.

Dishawan testified that he knew the premises in question at the time that Riggin lived there in 1839. The way was then used by Walker, and was plainly marked. Riggin told witness it was Walker's road; it was so called. A diagram showing the situation of the premises was proved, and is preserved on the record:

The defendant then read a deed from Riggin and wife, dated November 9, 1839, to defendant, regularly executed and recorded. It contained this clause: “The said parties of the first part, for themselves and their heirs, further contract and agree with said Neal Walker that they shall and will provide a road or outlet for the free egress and ingress of said Walker, his heirs or assigns from the tract of land aforesaid to the road commonly called the Bellefontaine road, for and during the full term and time of twenty years yet to elapse, commencing from and after the day and date hereof.”

The defendant then read a deed from Riggin and wife to O Fallon, dated March 9, 1840, conveying the land lying east of Walker, subject to the right of way, as expressed in the deed to Walker.

The defendant then offered a copy of a deed duly certified from Riggin to Ferguson. The plaintiff objected that the original was not accounted for, and that the copy was inadmissible. The court sustained the objection and the defendant excepted. The defendant offered the deposition of Riggin. The plaintiff, however, objected that Riggin was incompetent to testify, on the score of interest, and from the record it appears that the plaintiff at the time of the trial (no previous notice having been given) called on the defendant's attorney to produce some deed from Riggin, that the attorney refused, and thereupon the plaintiff read a copy (the defendant objecting), and the court thereupon excluded the deposition of said Riggin. The defendant excepted.

The court gave these instructions for plaintiff: 1. Unless the jury find from the evidence that the plaintiff either claimed title or possession of the premises mentioned in his declaration, either directly or mediately from John Riggin, no grant by said Riggin can rest in said defendant as against the plaintiff a right of way over said premises, provided the jury shall find that the plaintiff had possession of said premises at the time of the committing of the trespasses for which he sues, claiming to be owner thereof. 2. The jury will exclude from their consideration the testimony of Dishawan as to the declarations of Riggin in regard to Walker's road. Defendant excepted to the above.

The court refused the following instructions moved by defendant: 1. If the court shall believe from the evidence that the defendant did no more in passing over the land of the plaintiff on a road granted to him by deed from Riggin, dated 19th November, 1836, given in evidence, than in using a road or outlet for the egress or ingress of himself and family from his farm or land to and from the Bellefontaine road, then the plaintiff cannot recover in this action. 2. The bare possession of Riggin, in the absence all proof of a better title, is sufficient to authorize the granting to defendant a right of way, and if the jury believe that said Riggin did grant said right of way, and designate a road for said defendant to travel on, and that said defendant did...