Walton v. St. Louis, Iron Mountain & Southern Rwy. Co.

• Decision Date: 31 October 1877
• Citation: 67 Mo. 56
• Parties: WALTON v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RWY. CO., Appellant.
• Court: Missouri Supreme Court

67 Mo. 56

WALTON

v.ST. LOUIS, IRON MOUNTAIN & SOUTHERN RWY. CO., Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Washington Circuit Court.--HON. LEWIS F. DINNING, Judge.

Thoroughman & Warren with W. R. Donaldson for appellant, cited Tiarks v. St. L. & I. M. R. R. Co., 58 Mo. 45; Wag. Stat., p. 520, § 5. A highway may become such by use and prescription, and there was evidence to show that the road in this case was in use for over thirty years.

Reynolds & Relfe for respondent.

There was no highway, but merely a lane through Evans' farm, which he kept open or closed as he chose for his own convenience. Under section 43, it was appellants' duty to erect fences there, and, if Evans wanted to use it as a farm crossing, to erect cattle guards on both sides of the crossing with bars and gates for his use. Where the ox was killed, the road certainly ran between an inclosed pasture on the south 60 feet distant, and an inclosed cultivated field on the north from 200 to 300 feet distant. Surely section 43 is applicable to such a state of facts. Slattery v. St. L., K. C. & N. Railway Co., 55 Mo. 362; Robinson v. Chicago & A. R. R. Co., 57 Mo. 494; Nall v. St. L., K. C. & N. Railway Co., 59 Mo. 114.

HOUGH, J.

This was an action under the 43rd section of the act in relation to railroad companies. The petition contained two counts: one for killing an ox in 1870, the other for killing a heifer in 1874. At the place where the ox was killed, the railroad runs east and west, and crosses at right angles a private road which had been used by the public for fifteen or twenty years. East of this private road, the railroad was fenced. The private road was not fenced, nor was there any fence (for some distance) west of said road. On the north side of the company's right of way, and immediately west of the private road, in or near which the ox was killed, there was a strip of land between three and four hundred feet in width, which was uninclosed timbered land, partly cleared. Bounding this strip on the north was an inclosed field. On the south side there was a similar strip of cleared land from sixty to one hundred feet in width, separating the right of way of the defendant from an inclosed woodland pasture. The foregoing facts are undisputed.

1. RAILROADS: fences: forty-third section.

It is clear that the railroad company could not lawfully fence the private road at its intersection with the railroad. Though a private road it was by statute free to be traveled by all persons as a public road. Wag. Stat., Vol. 2, p. 1233, Sec. 10. A private road is a highway, a “public highway,” within the meaning of the 5th section of the Damage Act. The phrase “public highway,” is a tautological expression. A highway is a passage, road or street, which every citizen has a right to use, and is therefore necessarily public. Bouviers Dict. The road in question was a highway, and could not be fenced by the defendant. “Private roads” are so termed by the statute to distinguish them from public roads, which are maintained at the public expense.

2. PRIVATE ROAD.

Nor did the statute impose any obligation to fence the lands lying immediately west of the road. The lands through which the railroad passed at that point were uninclosed timbered lands, or lands from which the timber had been taken. The lands adjoining the right of way of the defendant, and on both sides thereof, were, as shown by the statement, the same. The words “along” an...