Belk v. Hamilton

Barclay, J. This suit is for an injunction to restrain defendant from interfering with plaintiff’s use of a road which affords access to plaintiff’s property. The defendant claims exclusive title to the land on which the road is located, and denies the legality of the proceedings on which plaintiff relies. The only question submitted upon this appeal is as to the validity of the proceeding to open the road. . The land in dispute lies in De Kalb county. The proceedings were had before the township board, under the township organization law (sec. 8552 and the following sections, R. S. 1889). The material parts of the record of the board are given in the statement introducing this opinion. After the road was opened (under order of the board) the defendant obstructed the road and interfered with plaintiff’s use of it as a thoroughfare. To prevent the continuance of such acts, and to restrain further disturbance by defendant of plaintiff’s enjoyment of the easement, this suit was begun. The trial court held that plaintiff was not entitled to the relief asked, and gave judgment for defendant. Plaintiff appealed. Both parties present here the one question of validity of the steps taken to open the road. [299] 1. It is argued that the proceedings are void because the petition for the road opening does not say, in so many words, that the road is a way of necessity. The petition closely follows the terms of the statute (section 8559) prescribing what such a petition shall contain. In this case the petition declares, among other facts, that no public road passes through or touches plaintiff’s land. The lawgivers probably considered that there was an obvious inference of necessity for a road in such circumstances, or that those allegations, if true, were a sufficient foundation for the exercise of the power of eminent domain. It is an error to suppose that a private road, as defined by statute, is sanctioned only by the constitutional provision which authorizes private ways of necessity (Const. 1875, art. 2, sec. 20). A statutory private road maybe used by the public as a highway (R. S., secs. 8567 and 7843). But the cost of opening it does not rest on the public. The reference in the constitution to private ways of necessity “enlarged the occasions for the invasion of private property for private use by permitting it under circumstances of doubtful, if not denied, right at common law,” as was observed in Humes v. Railroad (1884), 82 Mo. 221. But that section of the organic law certainly did not restrict those statutory highways called private roads to “ways of necessity,” known to the common law as well as to the jurisprudence of Missouri. R. S., 1845, ch. 183; R. S., 1879, ch. 70; Snyder v. Warford (1848), 11 Mo. 513. A private road, within the meaning of the statutes authorizing its opening, is subject to public use as a thoroughfare, and compensation to those damaged by it must be paid, under our positive law. R. S. 1889, sec. 8561, and following, sections. But such a road is [300] obtainable at the instance and expense of some person or persons especially benefited by it. The form of petition prescribed by the statute to initiate such a proceeding is clearly good against a collateral attack, such as is made against it in this case. Humboldt Co. v. Dinsmore (1888), 75 Cal. 604 (17 Pac. Rep. 710). 2. It is next insisted that it does not appear that the land in question is situated in Adams township in which the township board was authorized to act, and did act. The plaintiff’s petition describes her land accurately, and states its location in the southeast quarter of the northwest quarter of section 16, township 58, range 30, in De Kalb county. Plaintiff is further described as a householder of Adams township and she asks for the establishment of the road ‘‘for the benefit of said Martha Belk in said township.” The course of the proposed roád is also defined. We think it is fairly and reasonably inferable from those allegations that plaintiff’s land is in Adams township. But if the petition will not fairly bear that construction, the omission is not fatal, now. Where enough appears to show that the case falls within a class of proceedings which the court has authority to act upon, and the parties defendant have lawful notice, the humblest court should be held, in a collateral inquiry touching jurisdiction, to have rightly acted (as other public officers are supposed to rightly act) until, at least, the contrary is made to appear. This was ruled at an early day in Missouri, with reference to road cases and other proceedings before local tribunals. And although that rule has not invariably been folfowed, we yet consider it the correct rule. It is moreover supported by decisions of the court in banc, which received thorough consideration. Crowley v. Wallace [301] (1848), 12 Mo. 143; Kayser v. Trustees (1852), 16 Mo. 88; Butler v. Barr (1853), 18 Mo. 357; State v. Weatherly (1869), 45 Mo. 17; Snoddy v. Pettis Co. (1870), 45 Mo. 361; Lingo v. Burford (1892), 112 Mo. 149 (20 S. W. Rep. 459); Union Depot Co. v. Frederick (1893), 117 Mo. 138 (21 S. W. Rep. 1118). There are other decisions in recent years to the same general effect. The description of the land, with reference to the government survey, would probably not indicate, to a reader unacquainted with the locality, that plaintiff’s property is in Adams township of De Kalb county. Yet it may in fact be within that township, and the description may be very intelligible to that effect to citizens of that county. Its location in that township was a fact which the board must necessarily have found as a basis for its action in the matter. Under the ruling in the Lingo case, already cited, as well as upon principle, we consider the road judgment safe from successful attack in this collateral way on account of the omission, or supposed omission, under discussion. 3. It is also contended that the board gave no final judgment or order opening the road. The requirement of law on this point is that, at the proper stage, the board should order that the road be established according to the report, and render judgment 'against the petitioner for the damages assessed, etc., as indicated by section 8562. The orders of the board, on this point, though somewhat informal, are a sufficient compliance with the law. The substance of those orders is that the petitioner,- having deposited with the township treasurer the damages awarded to the defendants,, the defendant Hamilton was directed to vacate the road, and the road [302] overseer was ordered to open the road (describing its course) over the land of both defendants. No more formal judgment was necessary. R. S. 1889, sec. 2117; Bowie v. Kansas City (1873), 51 Mo. 454. The gist of the final decision of the board is seen. In reviewing collaterally the action for such tribunals, composed of persons not required to be skilled in legal forms, it is enough if their records clearly show the purport of their judicial acts. ' Such records should receive a fair and reasonable interpretation, and effect be accorded to their manifest meaning. Satterly v. Winne (1886), 101 N. Y. 218; Rutherford v. Wim (1831), 3 Mo. 14. 4. Defendant has chiefly relied on Colville v. Judy (1881), 73 Mo. 651, to sustain the ruling on the circuit. It is sufficient to say that that decision deals with a direct attack upon a road judgment. The remarks of the court must be taken to refer to that phase of the subject. As the appeal at bar involves a collateral attack on a similar judgment, we consider the Colville' case is not decisive of the present issue, without pausing to inquire how far its authoritative force may have been limited by later decisions. 5. It results that the judgment should be reversed and the cause remanded with directions to proceed in conformity to the views above given. Brace, C. J., and Macearlane and Robinson, JJ., concur.