Berry v. St. Louis & San Francisco Railroad

BLAND, P. J. On September 24, 1904, plaintiff’s cow was unavoidably struck" and killed by defendants’ engine and cars, at a country road crossing in New Madrid county. The action is bottomed on section 1105., Revised Statutes 1899. Plaintiff recovered judgment for double the.value of the cow. The point in controversy is as to whether or not the road where the crossing was [438] made was a public road, or such a road as defendants were required by law to keep open by constructing a ■crossing where its tracks crossed the same. The evidence in respect to the road was all furnished by plaintiff and, briefly stated, is that plaintiff had lived on his farm for seventeen years and the road run over his land just outside of his south fence, when he moved on the farm; that nine or ten years before the trial, he moved his fence one hundred and fifty or two hundred yards south, taking in the old roadway, and cut out a new one along and on the outside of his fence, for the purpose of giving his neighbor a road; that the road was a neighborhood road and had been traveled by the public during all the time he had lived in the neighborhood, and he did not know how much longer; that no public work had ever been done on the road; that it led into another road that turned east and people had to travel it; that the railroad had been in operation about two years, and when the tracks were laid the company made the crossing and put up the statutory crossing sign. At the close of the evidence, defendants offered an instruction in the nature of a demurrer to the evidence which the court refused. No other instructions were asked and none were given. The question for decision is, were the railroad companies authorized to fence the road? If not, defendants’ demurrer to the evidence should have been granted. The road was used and traveled by the public for more than ten years, hence the public acquired a right to it by adverse possession, and defendants were not required to fence it. [Dow v. Railroad, 116 Mo. App. 555, 92 S. W. 744; Easley v. Railway, 113 Mo. 236, 20 S. W. 1073; Longworth v. Sedevic, 165 Mo. 221, 65 S. W. 260] We do not think the fencing in of a part of the originally traveled road, and moving it one hundred and fifty or two hundred yards south, by plaintiff, was an act hostile to the right of the public in the road but, as shown by [439] plaintiff’s evidence, was done in recognition of sucb right and with the intention that the road as changed should he used hy the public as it had been theretofore. This slight change in the road, made in the circumstances related by plaintiff, we do not think interfered with the running of the Statute of Limitations in the public’s favor, and conclude that defendants had no right to fence the road and that their demurrer to the evidence should have been given. The judgment is reversed. All concur.