Wells v. Harris

Brace, J. This cause is transferred here from the St. Louis court of appeals, on the authority of State ex rel. Railroad v. Rombauer, 124 Mo. 598, as involving title to real estate. The proceeding originated in the county court of Lincoln county, and was taken thence to the circuit court of said county by certiorari, where the judgment of the county court was quashed, and an appeal taken to the court of appeals. By the judgment of the county court, on the petition of the appellants, a private road eighteen feet wide and one half mile long was established, running one [516] fourth of a mile through the lands of Fritz Leitman, and one fourth of a mile on and with a private road of said Leitman, over the lands of Howard Martin. The petition was in substantial conformity to the-requirements of section 7834, Revised Statutes 1889, and a copy thereof, together with a notice of the day on which it would be presented to the court, was duly served on the said Leitman and Martin, but no service thereof was had on the respondent Harris. The proceedings in the county-court thereafter to their culmination in the judgment were in conformity to the-requirements of the statute. The private way of Leitman which was appropriated for the purposes of the road and which he was required to fence, was wholly on the land of Martin (at each end of which gates were maintained by Leitman), and ran east of, and along the division line between, his land and that of the respondent. On this line there was a fence. The gravamen of the respondent’s complaint is that, whereas that fence is now a division fence between him and Martin and he is required only to keep up one half of it, when the private road is established that fence will cease to be a division fence, and he will have to keep up the whole of it, and this, result will follow from the fact that Leitman will no longer be under obligation to keep gates at the ends of the private way, but must take them down and build a fence along the east end thereof, parallel with, and distant from, the division fence eighteen feet, whereby Martin’s land will be inclosed and he will have no further use for the division fence, which he alleges he and Martin have used in common, each bearing one half of the expense of its maintenance. This is the case made by the respondent in his petition for certiorari, in which many things are stated, but in which he is very careful not to state who is the [517] owner of this fence. If he is the owner of this quarter of a mile of fence, it would be no great hardship for him to have to keep his own fence in repair, and if he owns part of it, and Martin owns part, their ownership is in no way disturbed by the establishment of this private road — it still remains the division fence between their premises, and they sustain the same relations to it as before, with the same obligation in respect thereof to “keep the same in good repair” (R. 8. 1889, see. 5042), in which case Martin, and not the respondent, is the one that might have cause to complain. However the case may be in this respect, by the proceeding to establish this road not a foot of the respondent’s land nor an inch of his fence is taken, disturbed, or damaged, or their value impaired; all of his property, in all its integrity and value remains just as it was before. He was not a necessary party to that proceeding, and has no right to interfere with it. The writ was improvidently granted and ought to have been quashed. The judgment of the circuit court is therefore reversed, and the cause remanded with directions to quash the writ. All concur.