Sheppard v. May

BIGG-S, J. The plaintiffs own farms abutting on a public road leading from West Plains to Mountain Home. They charge that the defendants obstructed this road at a point between their farms and the city of West Plains. In this action they sought to compel the defendants, by mandatory. injunction, to remove the obstruction and to restrain them from interfering with the road in the future. There was a temporary injunction, which, on a final hearing, was made perpetual. The defendants have appealed. The evidence for plaintiffs tends to show that on or about the first day'of May, 1898, the defendants obstructed the road as charged. The defendants attempted to justify on the ground that the portion of the road obstructed by them had been previously vacated by order of the county court. In support of this defense an order of the county court entered at its February term, 1898, was read, which recites, that upon the representation of William Monks, a road overseer, the court had adjudged that the portion of the roadbed in question had washed out and become unsafe for travel, and that therefore the court under authority of section 7804, Revised Statutes 1889, as amended by the legislature in 1895 (Sess. Acts 1895, p. 249), ordered the road commissioner of the county to survey and locate that portion of the roadbed over other and safer ground. At the May term of the court following the. commissioner made his report showing the location of the new road, which the court approved, and the court made a further order vacating that [275] portion of the old road which had become unsafe for travel. The defendants rely on this last order for a justification of their acts. Whether that portion of the roadbed sought to be changed was in fact situated on “the bank of a river, creek or other watercourse,” which the plaintiffs contend was essential (section 7804, supra) to authorize a summary order for the location of a new road, need not be decided. Conceding that the facts as established by the evidence brings the case within the purview of the statute, there is nothing in the section authorizing the county court to declare the unsafe portion of the old road vacant, and the order esablishing the new road could not of itself have that effect. The law provides but one way for the vacation of public highways, and that is on petition to the county court of twelve householders of the township where the road is located, etc. We therefore conclude'that the county court in attempting to declare the road in question vacant acted without jurisdiction, and therefore its order in the premises was void. It follows that the judgment of the circuit court will be affirmed. All concur.