Witte v. Sorrell

• Decision Date: 02 March 1920
• Docket Number: No. 20623.,20623.
• Parties: WITTE et al. v. SORRELL et al.
• Court: Missouri Supreme Court

219 S.W. 595

WITTE et al. v. SORRELL et al.

No. 20623.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from Circuit Court, Gasconade County; L. B. Woodside, Special Judge.

In the matter of the petition by C. F. W. Witte and others to vacate a public road, to which C. H. A. Sorrell and others filed a remonstrance. On appeal to the circuit court, after an order of the county court vacating the road, judgment was rendered against the petitioners, and they appeal. Affirmed.

W. L. Cole, of Union, and Robert Walker, of Hermann, for appellants.

Lorts & Breuer, of Rolla, for respondents.

BLAIR, P. J.

This proceeding was commenced in the county court of Gasconade county to vacate a public road running almost diagonally, from northwest to southeast, across the southwest quarter of the northwest quarter of section 26, township 41, range 6. A statutory remonstrance was filed, and, after a hearing, the county court entered its order vacating the road. On appeal the cause was heard anew, and the circuit court rendered judgment against petitioners, and from that judgment this appeal was taken.

There is a public road along the south side of the tract described. Appellants endeavored to prove a public road existed along the west side of that tract. To this end they offered a petition, which had been filed in the county court in 1909, asking the establishment of such a road. No action was ever taken on this petition. In 1911, Witte, Gawar, and Strack filed with the county court relinquishments of rights of way along the route of the road proposed in the petition filed in August. These deeds were not recorded, and no plat of the road was filed with the county clerk. Section 9472, R. S. 1899; section 10466, R. S. 1909. Appellants then offered testimony that a road previously running through the center of the southeast quarter of the northeast quarter of section 27, township 41, range 6, "gradually shifted over until it got on the east line of the 40, where it has been for four or five years, and for several years has been worked by the road overseer, on the line, and during the year 1915; prior to the filing of the petition" (November 22, 1915) "public money had been expended upon said road as it now runs on the east line of said 40, and it has been used by the traveling public at that place for about four years next prior to the filing of the petition." The trial court found as a fact that the evidence did not establish a public highway on the east line of the southeast quarter of the northeast quarter of section 27, which is also the west line of the southwest quarter of the northwest quarter of section 26. The evidence also shows that the vacation of the road through the southwest quarter of the northwest quarter of section 26 lengthens the route about 140 yards; that the road along the west side of the southwest quarter of the northwest quarter of section 26, between 26 and 27, is rocky,...