18 Mo. 357 | Mo. | 1853
delivered the opinion of the court.
1. The questions involved in this controversy, are new and of some importance. This judgment must be reversed, for the refusal of the court to give the instruction, to the effect, that the overseer, in opening a road, should follow the marked trees on the line of the road, and where two trees are marked on the line of a road, and nothing more appears from the report of the commissioners or otherwise, a straight line from one of these trees to the other, is the line of the road in contemplation of law. This was the turning point of the case, and the law should have been distinctly put to the jury. The instructions given in lieu of those asked, evaded this question.
It must be obvious to all, that it would be unwise to trust an overseer of a road with the power to change its location at his discretion, against the will of the owner of the land over which the road passes. The public would frequently suffer, even if it could be done with the consent of the owner. When
2. When the viewers have reported, and the road is ordered to be opened, they are then funcii officio, and their opinions as to where the road should be, can avail nothing. They cannot vary or change the legal import of their report by their parol testimony. They, like any other witness, may be examined to show that the road opened is on the line designated in the report.
3. We know the looseness with which all the proceedings in relation to the surveying and opening of roads are conducted in our courts ; indeed the members of those courts are not re
The other judges concurring, the judgment is reversed and the cause remanded.