Wyatt v. Thomas
| Decision Date | 31 October 1859 |
| Citation | 29 Mo. 23 |
| Parties | WYATT, Appellant, v. THOMAS, Respondent. |
| Court | Missouri Supreme Court |
1. It is not obligatory upon commissioners appointed by a county court to lay out a county road to call to their aid the county surveyor or other competent surveyor; it is sufficient if the commissioners by their report designate the location of the road with sufficient certainty.
Appeal from Montgomery Circuit Court.
This was an action to recover damages for a trespass in throwing down plaintiff's fences and exposing his fields so that his crop was destroyed and his stock went astray. The defendant justified on the ground that he was a road overseer and that the fences thrown down were in the public highway. The commissioners who made the location of the road did not call to their aid a survey, and no survey was made.
Wells, for appellant.
I. The report of the commissioners or the survey must give a definite and ascertainable location to the road. The report and survey constitute a record. If they lack certainty, then they are void. The report is utterly indefinite and uncertain. The oral testimony introduced conflicts with the report. The court erred in refusing to give the first two instructions prayed for by the plaintiff.
Lovelace & Terrill, for respondent.
I. The report designates with sufficient certainty the location of the road. (See 18 Mo. 357; 24 Mo. 298.) The court properly refused the instructions asked. The only question was whether the road was opened on the line designated by the commissioners.
In the case of Walker v. Likens, 24 Mo. 298, an owner of land was not allowed to maintain trespass against an overseer of a road, who was acting under the orders of the county court in proceeding to open a road over the land of the party complaining, although it did not appear, from the report of the commissioners who laid out the road, that the complaining owner had consented to the road going over his land or that the proper steps had been taken to condemn the land, to public uses, as in cases of the owner's refusal. Here was a case where a constitutional safeguard had been set at naught; but the remedy was not considered to lie in an action against the officers, who were but acting in conformity to the orders of a court having jurisdiction over the subject.
The present suit is against the overseer of a road district for opening a road across plaintiff's land under orders of the county court, and the...
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Leonard v. Sparks
...steps required by statute to be taken) was held not to impair the validity of the judgments when challenged collaterally. Wyatt v. Thomas (1859), 29 Mo. 23; Snoddy v. Pettis County (1870), 45 Mo. Lingo v. Burford (1892), 112 Mo. 149; 20 S.W. 459. It has been very recently declared with refe......
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Leonard v. Sparks
...steps required by statute to be taken, was held not to impair the validity of the judgments, when challenged collaterally. Wyatt v. Thomas, (1859,) 29 Mo. 23; Snoddy v. Pettis Co., (1870,) 45 Mo. 361; Lingo v. Burford, (Mo. Sup.; filed 1892,) 20 S. W. Rep. 459. And in City of St. Louis v. L......
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Robinson v. Jones
...protected by its order, without showing that the order was legally made. Butler v. Barr, 18 Mo. 357; Walker v. Likens, 24 Mo. 298; Wyatt v. Thomas, 29 Mo. 23; Brown v. Harris, 52 Mo. 308; Howard v. Clark, 43 Mo. 344. If there was irregularity in the proceedings for the opening of the road, ......
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Crenshaw v. Snyder
...having notice such as the law required ought to have adopted means to obtain redress for the wrong of which they complain." In Wyatt v. Thomas, 29 Mo. 23, (1859,) this court approved the decision of Judge Scott in Walker v. Likens, supra, in the following language: "In the case of Walker v.......