Wooldridge v. Rentschler

Ellison, J. This is an action of trespass, wherein defendant was charged with having torn down plaintiff’s fences and ploughed and ditched his land. Defendant justified by answering that he was road overseer for the district in which plaintiff’s lands were situated, and that he committed the acts complained of, as such officer, under an order of the county court, ordering him to widen the road which ran between plaintiff’s land and that adjoining. The judgment below was for plaintiff. It .appears from the record that this case originated from a difficulty about a road, which, it appears, some persons in its neighborhood concluded had been encroached upon by plaintiff. How the road was originally acquired by the public, or what its original width was, does not appear. It does appear, though, that proceedings were instituted, before the county court, to widen it. These proceedings appear to be such as would be proper for widening a road that was found to be too narrow as originally laid out. That process seems to have been invoked, as a means of setting plaintiff’s fences off of the road, already of a proper width as a road, but which had been encroached upon by the alleged unwarranted acts of plaintiff. Notice of the presentation of the petition was regularly given, and the county court ordered a survey by the surveyor. The survey was made and duly reported to the county court. Plaintiff was then notified by proper notice to [595] remove Ms fence to the limit as established by the survey. Having refused to do so, the county court issued an order to defendant, as road overseer, which was duly delivered to him, to proceed to open the road and report his action to the court. It was in executing this order that defendant committed the acts for which the suit was begun. There is no pretense of any malice, or improper conduct, on the part of the defendant, further than executing this order. Our opinion is that the plaintiff can not maintain this action. The county court has general jurisdiction to open or widen public roads. It therefore had jurisdiction of the subject-matter in the proceeding which resulted in the order to defendant to widen the road in ■controversy. It issued its order to defendant and he merely obeyed the order. It was not for him to examine into the regularity of the proceeding leading to the ■order. Butler v. Barr, 18 Mo. 357; Walker v. Likens, 24 Mo. 298; Melcher v. Scruggs, 72 Mo. 406. But it is a part of plaintiff’s contention, that the process under which defendant acted was void for uncertainty and, therefore, afforded him no protection. We think this is not supported by the record. The order of the court delivered to defendant recited that the court had ordered the road widened according to the survey made by the county surveyor, and directed defendant to “proeeed. to widen said road within thirty days from the daté of this order, as the same was surveyed by the county surveyor and ex officio commissioner of roads and bridges, and report to this court at its next regular term.” The plat of the survey, with the report of the surveyor was introduced in evidence, and from these (which are properly considered, for present purposes, as a part of the order to the surveyor; Whitehead v. Ragan, 106 Mo. 231), it is clear enough what the defendant was to do. There was no uncer [596] tainty about it. ’Whether the county court should have acted on the report of the surveyor is not the point for consideration here. The court had jurisdiction of the matter and made an order it had power and authority to make. Defendant should not be held responsible for any error of the court. The case of Rousey v. Wood, 47 Mo. App. 471, arose under township organization law, and, besides, is not like this case in its facts. The judment should be reversed. All concur.