People ex rel. Fortune v. President & Board of Trustees

Mr. Presiding Justice Boggs delivered the opinion oe the Court. This was a petition for a writ of mandamus commanding the president and trustees of the appellee town to remove a certain fence which, as the petitions alleged, had been erected upon and obstructed a street of the town.. The answer denied the locus in quo was a street of the municipality. Upon a hearing the Circuit Court dismissed the petition. It was developed by the testimony that it was a matter not free from doubt whether a street existed as claimed, and that the town, in good faith, denied- the existence thereof. It was not a case where, without the writ, there would be a denial of justice. An appropriate and effectual remedy is provided by Secs. 221 and 222 of the Criminal Code. .Resort to it would have brought into court the person who built the fence, the wrong-doer, if there was a street there. The writ of mandamus if granted would expose the defendant in error to the hazard of liability in damages. The court correctly ruled it was not proper to coerce the town by mandamus to exercise jurisdiction over the alleged street. 14 Amer. and Eng. Ency. of Law, 206; Elliot on Roads and Streets, 517; State ex rel. v. Buhler, 90 Mo. 560. The judgment is affirmed.