184 Mo. App. 634 | Mo. Ct. App. | 1914
For the second time this case is before the court. It was brought here the first time by plaintiff who appealed from the judgment of the trial court sustaining a demurrer to the evidence. The
It is urged that the notice shown in evidence did not comply with the statute in that it was not given by the road overseer himself. .But the evidence was that the overseer made out and officially signed two duplicate written notices to the defendant notifying
When the road was obstructed, and the notice given, Road District No. 5 was in existence and controlled the road in question. After the service of the notice by the overseer, that district was absorbed and swallowed up by the Boonville Special Road District. Defendant on this account challenges the latter’s right to sue. This, however, was decided adversely to defendant on the former appeal.
The constitutionality of section 10533 is sought to be attacked on the ground that the statute gives the penalty to the road district while the Constitution says it shall go to the school fund. Whether the statute says anything'about where the penalty shall go, but merely provides a method of procedure for its recovery, is a question with which we have nothing to do since a decision of it either way would involve the question whether or not the section came within the. constitutional inhibition, and jurisdiction to pass on
The road alleged to be obstructed is called the Little Ferry Road and runs west from the top of “Bell’s Hill” at said road’s intersection with the old “Santa Fe Trail” now “The State Highway.” Defendant owns land south of the Little Ferry road extending from the above intersection west for a considerable distance. The obstruction complained of consists of a post and wire fence which defendant set commencing at the above intersection and running west to inclose his land. It is claimed that from the intersection west for a distance of 160 or more yards the fence is in the road.
The pleadings admit that the road was originally established sixty feet in width. This was done many years ago. It was at least before 1848 because at that time and continuously thereafter the road has been open to and used by the public. How long it was used before that no one now living knows.
Defendant bought the land abutting the road on the south in 1885. After buying, he moved his fence two or three times, a few feet at a time, outward to the north and closer to the fence on the other side of the road. The last time he moved his fence was six or eight years before the trial. Having been traveled so long, the roadway had become worn down until there were then, and now are, banks three or four feet
Defendant’s claim that his fence does not encroach upon the road is based upon the theory that the road in question was located so that its center line is upon and coincident with the east and west center line of; ■section 5', and that although the road was originally established sixty feet in width, yet in August, 1874, the county court, upon the petition of landowners along the road, reduced its width to forty feet. Consequently, his position is that as the offending fence is twenty or twenty-one feet from this center section line, and therefore in the road as originally established, yet it is still outside of the twenty feet constituting the south half of the road as reduced, and the fence is, therefore, not an obstruction.
The evidence, however, does not show that the road was established on the section line as its center. No surveys establishing the road were introduced to show that this was so, and defendant’s surveyor admitted that none would show such to be the fact. There was evidence on the contrary, however, which tended to show that the larger portion of the road was south of the section line. This was abundantly shown to be the fact so far at least as the actual location of the road upon the ground is concerned. The surveys of lands adjoining the road did not state that the section line was in the center of said road, and for that reason, if for no other, they were not evidence that it was. Consequently, the court did not err in refusing to ad
As to the other branch of defendant’s contention, namely, that the county court in August, 1874, reduced the width of the road to forty feet, it may be said that conceding for the sake of the argument that the county court had authority to reduce the width of the road, there is no evidence showing that anything was done thereunder either in changing its location or in reducing the width of the road as actually existing upon
So that defendant’s position that his fence is not in the road is untenable. His major premise, that the road is located equally on each side of the section line, was not established; and even though his minor premise — that the road was legally reduced to forty feet— be conceded, still it was so reduced only on paper, because during the eleven years from August, 1874, to 1885, when defendant bought his land, the public continued to travel over and use the ground where the offending fence now stands, and continued thereafter to do so until 1907, when said fence was erected directly in the wagon track. . And in addition to this, the ground occupied by the fence had been traveled continuously from 1848' and prior to that time.
Defendant also contends that the cause of action is barred by section 4949, Revised Statutes 1909. The section does not apply to cases, of this character. It is not a suit to recover a “forfeiture given in whole or in part to any person who will prosecute for the same. ’ ’ The only other limitation statute which might be applicable is section 4946, Revised Statutes 1909. But under the terms of section 10533 each day the obstruction is maintained, after the ten days ’ notice, constitutes a distinct offense penalized by a forfeiture of $5. The offense was therefore a continuing one, and the evidence showed that it continued down to the day suit was filed. It was held in State v. Gilbert, 73 Mo. 20, that in such case, a prosecution for obstructing a public road was not barred. The trial court applied the statute by requiring the jury to find that the obstruction was maintained down to date of the
The statute is penal and of course must be strictly construed and the case against defendant must come clearly within the terms thereof. We have carefully gone over the entire record repeatedly but are unable to find any place where plaintiff has not brought the case strictly within the terms of the statute. That the penalty is severe is undoubtedly true. But no doubt the Legislature intended it should be so in order that the State’s highways should not be unlawfully encroached upon in the manner shown in the evidence. The severity of the statute is a matter for the Legislature, not for us. We are, therefore, without authority to disturb the verdict, and the judgment is affirmed.