Moore v. Hawk

Ellison, J. — Plaintiff brought this action against defendants on account of their cutting down hismsage hedge and tearing down his rail fence. The trial below resulted for defendants a.nd plaintiff appeals. Defendant seeks to justify his cutting the hedge and removing the fence by showing that he was road overseer for the district which included plaintiff’s lands, and that the rail fence was standing in the'public highway, and the hedge being more than five years old had been permitted by plaintiff to grow to a height of twenty feet; that he cut it down after giving the plaintiff the requisite notice, to a height of not less than four feet, nor more than five feet,' under the provisions of the statute, 1889, sections 5053-5055. The facts as presented by plaintiff’s abstract are, that some time in 1866, plaintiff being the owner of one hundred and sixty acres of prairie land, inclosed it with a rail or worm fence. On the north and west, the places in question here, he set this fence in fifteen feet on his land so that, the adjoining landowner doing the same, there would be left a road way of thirty feet in width. Some time afterwards he set out a hedge from five to ten feet inside of this fence, his purpose being, .according to his own testimony, to make a ‘‘windbreak” for his stock, he being a feeder of large numbers of cattle. After many' years the rail fence begun [499] to prove insufficient in several places. In such places he joined it with the hedge so that in fact his land was in this way inclosed by the fence and hedge. Finally, in 1891, defendant, as road overseer, notified him,, under the statute aforesaid, to trim the hedge down to the prescribed height. On his failing to do so at the expiration of thirty days, defendant cut it down to the height prescribed by statute and removed the rail fence' from the outside to the inside of the hedge. It is not pretended that there was ever any public road laid out there by legal process or proceeding. It may be stated though, that the record discloses quite clearly that plaintiff dedicated the portion of the road which was on his side the line and that the public accepted and used it from 1866 up to the time of this trial. The real question then is, did he dedicate to the rail fence, or to the hedge. For unless the hedge was “upon the line of (any) a public highway” as contemplated by the statute, defendant had no right to interfere with it. We have seen nothing whatever in the record to show that plaintiff ever dedicated or intended to dedicate any of that portion of the land lying between his rail fence as it remained at the time of the trespass, and the hedge. Such portions of the fence had remained on the one line for twenty-five years. The ground between it and the hedge had never been acquired by the user of the public, nor had plaintiff ever thrown it out to the commons. Nor do we see any sufficient evidence, under the law governing the case, to show that plaintiff dedicated that portion lying between the line where his fence had disappeared and the hedge. There is no evidence in the abstract sufficient to show an intention to dedicate more land for a road than was included in that portion which plaintiff left outside of his inclosure when he inclosed the land with the rail fence in 1866. In order [500] to make a common law dedication in this state, “the proof must he so cogent, persuasive and full as to leave no reasonable doubt of the existence of the owner’s 'intent and consent.” McShane v. City, 79 Mo. 41; City of Kansas v. Ratekin, 30 Mo. App. 416. The mere fact that as perhaps portions of his fence would from time to time become insufficient plaintiff connected it at such points with the hedge, does not, of itself, by any means show that he was thereby dedicating to the public at such irregular places the space thus left uninclosed. It will be seen from the views herein expressed that in our opinion plaintiff’s instruction number 2, should have been given unamended. On another trial it would be well to incorporate in said instruction, if the evidence shall justify it, the hypothesis of the public having acquired by limitation and user the land between the hedge and original line of fence at the points where the 'fence had been taken away by plaintiff; for though plaintiff may never have dedicated such laud, it is possible that the circumstances, situation and facts are such as to show that the public used adversely such portions or pieces of ground as a road in a manner and for a time sufficient to make it a part of the road. But we can not, of course, anticipate what will develop in this respect, nor is it necessary to state what we consider to be the law as to what sort of use of pieces of land like these would establish under legal principles a right in the public. Defendant’s first instruction should not have been given for .the reason that there was no evidence to show that the hedge was on the line of the public road for the full distance covered by the trespass as the instruction seems to contemplate. At most it was only along the line of a road at points where plaintiff had removed his rail fence. Defendants’ fourth instruction should not have been given for the reason that portions of it [501] has no evidence in support thereof. There is nothing shown to indicate that plaintiff intended to give or dedicate any land between the fence and hedge. The bare fact that a man sets out a hedge inside his inclosure near his fence, without more, is not evidence that he intends to dedicate the land lying between; and if it was plaintiff’s intention to do so in the future he certainly had not yet carried out such intention. The judgment will be reversed and the cause remanded. All concur,