Zimmerman v. Snowden

• Decision Date: 31 October 1885
• Parties: ZIMMERMAN, Appellant, v. SNOWDEN et al.
• Court: Missouri Supreme Court

88 Mo. 218

ZIMMERMAN, Appellant,

v.SNOWDEN et al.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

Samuel Ensworth for appellant.

(1) County courts in establishing roads, changing roads, or in making orders to open roads must confine themselves to the statute, otherwise their proceedings are nullities, and a person may resort to a petition in equity and injunction for relief against the acts of the county court and overseers. Carpenter v. Gresham, 59 Mo. 247; County of Cooper v. Geyer, 19 Mo. 260, 261; Jefferson County v. Cowen, 54 Mo. 234; High on Injunctions, secs. 124, 125, 126, 127 and 128, pp. 78, 79 and 80. (2) In summary proceedings, where the rights of third parties are involved, the law always implies that they shall have reasonable notice to prepare for the protection of their rights. Patton v. Wrightman, 31 Mo. 432. There is no dedication in this case, as the owners never consented to the road, which is necessary to a dedication. Becker v. City of St. Charles, 37 Mo. 13. (3) Courts of limited or special jurisdiction should show affirmatively by their proceedings of record facts which give the court jurisdiction of the matter acted upon. McCloon v. Beatie, 46 Mo. 39, and citations, and also Edwardson v. Kite, 43 Mo. 179.

C. F. Booher for respondent.

BLACK, J.

The plaintiff became the owner of the southwest quarter of section 10, township 59, range 34, in Andrew county, in 1879, and then enclosed the same with a fence. The defendants, the road overseer and county court, made claim for an established public road over the west line of the land, and were about to remove the obstruction when plaintiff procured a temporary injunction restraining them from so doing, which was dissolved on final hearing and from that judgment he took this appeal.

1. Proceedings were had in the county court in 1871, resulting in an order establishing a road north and south between sections 9 and 10, and to the north and south of those sections. Many owners of property relinquished their claims for damages and conveyed a right of way to the county. Those proceedings fail to show that the petition was signed by “twelve householders of the township or townships in which the road is desired, three of whom shall be of the immediate neighborhood,” or that the notices of the intended application had been put up for “twenty days prior thereto,” as required by the road law (Acts of 1868, p. 157). These are jurisdictional facts necessary to be made to appear upon the record somewhere, otherwise, under the former rulings of this court, the proceedings are void. Certainly so as to those owners who did not relinquish the right of way. Jefferson Co. v. Cowan et al., 54 Mo. 234; Whiteley v. Platte County, 73 Mo. 30. No claim is made that those persons through whom the plaintiff claims title ever made such relinquishment.

2. The evidence shows there was a public road running north and south over the east half of section 9 in 1845. In 1856, at the request of Bowman, the owner of that tract, the county court made an order changing the location of the road, east to the line of the two sections. This was done without the consent of the owners of section 10, and the order was not binding upon them. Bowman, then, in 1856, enclosed his land placing the fence in twenty feet in order to accommodate the road. The road as thus located was then cleared out, a bridge built across a creek, and the road was kept in repair and used by the public. During and since the late war the repairs have been neglected, though the...