Kansas City, Clinton & Springfield Railway Co. v. Woolard

Smith, P. J. This is a proceeding invoking the injunctive process of the circuit court to restrain the defendant as road overseer from interfering with and tearing down the fences inclosing the right of way of the defendant railroad corporation. There was a trial in the court below resulting unfavorably to plaintiff. The case as appears from the record is about like this. A lane or passage way between two adjoining landed proprietors had been left open by them for their own convenience. A neighborhood road passed east and west through this lane, which had been traveled by persons having occasion to pass'-that way for a great number of years. It had been continuously open, except at one time it was closed up for a short period. There was a wet, marshy place in the lane and at this point it was ditched many years ago. One witness testified that the ditch was dug by Crow while he was road overseer. But the correctness of- this is made doubtful by the contradictory testimony of the brother of Crow, the road overseer. It likewise appears that Squire Thompson, a road overseer, who was one of the adjoining proprietors, in connection with the other, at one time did some work in the lane, but -whether in his capacity of road overseer or for his own convenience does not clearly appear. Several witnesses who in years past had been road overseers of the district in which the road in question was located, testified that it was never in the list of roads worked by them and that they never exercised any authority over it. Some of these further testified that they had resided in that road district for forty years and that this road had never been recognized or worked by the road overseer as a public road. The testimony of these witnesses is such as to satisfy our minds that this was never a public road. But this is not all. It appears that in 1890 a peti [634] tion signed by a number of freeholders of the municipal township, some of whom were presumably of the immediate neighborhood of the said road, was presented to the county coui’tfor the opening of the road as a public road. Afterward the road was established by the order of the county court. It is not pretended that this order was effective as to the plaintiff, over whose right of way the road was ordered to be opened, since it appeared there was no notice to plaintiff of the proceeding, nor relinquishment by it of the right of way, nor were there any steps taken to acquire the same by condemnation. This proceeding did not confer upon the defendant any authority to interfere with plaintiff’s fences, nor is it insisted that it did. But the clear and unmistakable-inference to be drawn from it is that neither the freeholders of the road district nor the county court regarded the road as a public one, or else why did they take steps-to open it as such? We can not discover that under the evidence the-case is within the rule declared in State v. Culver, 65 Mo. 607, nor in that of State v. Wells, 70 Mo. 635, but we think it is more like that of Stacey v. Miller, 14 Mo. 336, where it is said by Judge Napton “that the bare fact that a farmer leaves a lane through his farm for his own convenience, and permits the public to use it as a highway does not authorize any inference that it is his intention to dedicate such road to the public.” It is our conclusion that the evidence did not warrant the-court in finding that the road was a public one. And for that reason the decree was erroneous. We think the temporary injunction should have been made perpetual, and accordingly we shall reverse the decree of the circuit court with directions to that court to enter a decree making perpetual the temporary injunction. All concur.