Walker v. Southwest Missouri R. Co.

• Decision Date: 13 November 1917
• Docket Number: No. 1973.,1973.
• Citation: 198 S.W. 441
• Parties: WALKER v. SOUTHWEST MISSOURI R. CO.
• Court: Missouri Court of Appeals

198 S.W. 441

WALKER v. SOUTHWEST MISSOURI R. CO.

No. 1973.

Springfield Court of Appeals. Missouri.

November 13, 1917.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Joseph I. Walker against the Southwest Missouri Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Frank L. Forlow, of Webb City, for appellant. McReynolds & Halliburton, of Carthage, for respondent.

STURGIS, P. J.

The defendant operates an interurban railroad in Jasper county, Mo. This suit is for double damages under section 3145, R. S. 1909, for killing a horse and mule owned by plaintiff. The defendant admits the killing of these animals by one of its cars, and defends the action solely on the ground that the place where the animals came upon the right of way was a public road crossing and therefore not a place where it was required to fence its track. This was the only controverted issue in the case. The case was tried without a jury, and the court, after hearing the evidence, refused to declare as a matter of law or find as a matter of fact that the animals were killed at a place where defendant was required to fence. For the defendant the court declared the law to be that if the evidence showed that Highland crossing over defendant's track, at which plaintiff's stock was killed, had been used for 10 years or more as a public crossing then defendant had no right to fence the same. The court found that the animals were killed at a public road crossing, and entered judgment for defendant.

There is considerable evidence in the case as to the length of time and the extent of the use by the public of the crossing in question and, in appealing this case, the plaintiff must recognize that if there is any substantial evidence that the crossing in question had by sufficiently long and continuous use of the same by the public become a public crossing, a part of a public road, then the court's finding on that point is conclusive on this appeal.

We do not understand the plaintiff to controvert the proposition of law contained in the court's given declaration that if the crossing had in fact been used by the public for 10 years or more as a part of a public road then the defendant is excused, if not prohibited, from fencing it up. It is certainly well established in this state that 10 years' adverse occupancy and use of a road by the public is sufficient, if acquiesced in by the owner of the land, to vest in the public an easement in the road and cause it to become a public highway. State v. Wells, 70 Mo. 635, 637; State v. Walters, 69 Mo. 463, 465; State v. Transue, 131 Mo. App. 323, 329, 111 S. W. 523; Sikes v. Railroad, 127 Mo. App. 326, 332, 105 S. W. 700; Zimmerman v. Snowden, 88 Mo. 218, 221.

The evidence in this case sufficiently shows that the railroad in question was built some 12 years before the killing of these animals; that the crossing in question was then constructed by making approaches thereto and placing planks on each side of the rails and that it had been maintained and used in that condition ever since. This was done because there was a more or less traveled road crossing the right of way at this point, and the owner of the land, in conveying to defendant its right of way, required it "to maintain at its...