McCarty v. Clark County

Black, J. There are two counts in the petition; the second is ej ectment for a strip of land, one hundred and sixty rods in length by sixty feet in width. The county defends under proceedings had in 1872 for the opening of a public road. The court found for the defendant. As the record stands, the important questions arise over the following instructions given by the court of its own motion : The right of the public to travel over and use the public road in question cannot be tested by an action of ejectment against the county. The evidence does not show that the county is in possession of the lands over which the alleged road is located. [182] The first of these instructions, when applied to the facts, is an assertion that ejectment will not lie by the owner of the fee of land over which the county has, by illegal and void proceedings, laid out and opened a public road. That our counties- are quasi public corporations, and may sue and be sued, is too plain a proposition to call for the citation of statutes and authorities. The cases of Reardon v. St. Louis County, 36 Mo. 555, and Clark v. Adair County, 79 Mo. 536, were suits to recover damages occasioned by defective bridges. Swineford v. Franklin County, 73 Mo. 279, was a suit to recover damages for filling up a mill race. The principle of law asserted in these cases is that counties are not responsible for neglect of duties enjoined on them or their officers, unless a right of action -for such neglect is given by statute. These cases, which are relied upon by the respondent, do not meet the question. Indeed they have little or no bearing upon it. It was long ago held by this court that ejectment would lie against a city to recover land which the city had wrongfully taken and converted into a public street. Armstrong v. The City of St. Louis, 69 Mo. 309. A city invested with the control of its streets may maintain ejectment for land dedicated for a street, though the fee is in the county by virtue of the law concerning town plats. The City of California v. Howard, 78 Mo. 89. But the argument is made that the county courts in opening, repairing and maintaining roads are not the agents of the counties, and that the counties, as such, have nothing to'do with the roads, and in contemplation of law are not in possession of them. It may be well to refer to some of the provisions of the law in force under which the county endeavored to open this road as found in 2 Wagner’s Statutes of 1870, page 1218. All roads must be opened and repaired under the provisions of that act. All roads formerly [183] known as state and county roads are called public roads. The county courts have authority to locate, open and improve roads, and may macadamize, grade and improve them, and for these purposes may borrow money on the credit of the county, and may issue the bonds of the county. The road commissioner, in laying out roads, “shall have power to take conveyances of the right of way in the name of, and for the use of, the county through lands upon which any road may be located, when such conveyance can be had.” All these, and many other of the provisions of the statute show that the counties, through their county courts and other officers, have the management and control of the public highways. - A distinction has long been maintained between counties and cities as to liability for injuries arising from defective highways ; but that distinction does not affect the question in hand. Ejectment will lie against, a county, the same as against a city, to recover land which has been wrongfully taken and converted into a public road. The remedy being allowed in the one case, there is. no good reason why it should be denied in the oth'er. Sedg. & Wait on Trial of Land Titles [2 Ed.] secs.-251, 252. If the proceedings to open the road in question are void, and there has been no dedication by use, then the plaintiff should recover. The county, in its answer, sets up the proceedings had to locate and open the road and insists that they are regular and were conducted according to law. It is then alleged that the road has been used as a public highway continuously from that date to the present time. These allegations constitute • an admission of possession on the part of the county, and no proof was ■required upon that point. The court, therefore, erred in both of the instructions -in question. As to the first count, it is sufficient to say, that it is but a detailed history of the proceedings taken by the [184] county to open the road, with the prayer that they be set aside. It is a useless count, and should be stricken out. The proper remedy, as we have said, is by ejectment. The judgment is reversed, and the cause remanded. All concur