Oetting v. Pollock

189 Mo. App. 263 | Mo. Ct. App. | 1915

OPINION.

FARRINGTON, J.

There is no theory upon which the judgment of the trial court denying plaintiff relief can be sustained. It is alleged and proven that he will suffer irreparable damage by the maintenance of this public nuisance. It is alleged and established to our satisfaction that plaintiff has no adequate remedy at law. [State ex rel. Rucker v. Feitz, 174 Mo. App. l. c. 460, 160 S. W. 585.] It is alleged and shown that the injury to plaintiff is special — that he will suffer damage over and above that suffered by the community at large, and that his damage is different in kind and not merely in degree from the injury to the public generally. [Weller v. Lumber Co., 176 Mo. App. 243, 161 S. W. 853; Patton v. Forgey, 171 Mo. App. l. c. 8, 153 S. W. 575; Beutel v. West Bay City Sugar Co. (Mich.), 94 N. W. l. c. 204.] The finding is “that if the fence placed by defendant across the road in question is permitted to remain plaintiff will have no connection with any public r,oad.” [Italics are ours.] And it is further found that the private road will be useless and that plaintiff will be “substantially damaged thereby.” ■ The obstruction is not in the private road but is maintained in the old public road that is still used by school children at least — the road that the county court upon petition of freeholders as late as 1907 saw fit to recognize as a public road to the extent of making a change of some kind in a part of it — the road that the trial court finds is not traveled “by the public generally to any extent. ’ ’ There is no mention of laches, or bad faith, or unclean hands, or any of those elements which often cause courts of equity to stand aloof. It is no longer doubted that equity will grant the affirmative relief characterized as “ a mandatory injunction.” [See, State ex rel. Rucker v. Peitz, supra; Atterbury v. West, 139 Mo. App. 180, 122 S. W. 1106; Patton v. Forgey, supra, l. c. 9.] Unless plaintiff can obtain this extraordinary remedy he will — according to the finding of facts — have no connection with any public road and the private road will be useless to him. We have, therefore, a plain .case for equitable intervention.

The deference we owe and like to pay to the learned trial judge in his conclusions must not be permitted to obscure our vision or to prevent the plaintiff from obtaining what we conceive to be his rights. The courts are open and ample provision is made for the vacation of roads that have become useless. In 2 Elliott on Roads and Streets (3 Ed.), sec. 1172, we find the following language: “ ‘Once a highway always a highway/ is an old maxim of the common law to which we have often referred, and so far as concerns the rights of abutters, or others occupying a similar position, who have lawfully and in good faith invested money or obtained property interests in the just expectation of the continued existence of the highway, the maxim still holds good.” Again, in Kyle v. The Board of Commissioners of Kosciusko County, 94 Ind. 115, 116: “It is a very ancient rule of law that vacations of highways are not favored, and that the presumption will always be in favor of their continuance. ’ ’ The rule as stated in Elliott on Roads and Streets, quoted above, has received the sanction of our Supreme Court in the case of Johnson v. Rasmus, 237 Mo. l. c. 590, 141 S. W. 590. Hence, since the effect of an abandonment or vacation of this public road will be to deprive plaintiff of his way of ingress to and egress from his farm, the road cannot be vacated except by a proceeding for that purpose. In such a proceeding plaintiff could appear and assert his rights, but until such course is taken the road must be left open and unobstructed. That the judgment of the trial court was based on an abandonment by nonuser and not on any order vacating is evident as the finding of facts recites that “no steps were ever taken to vacate the road in controversy and no action of the county court looking to that end was ever had,” which is followed by recitals tending to show a nonuser. In the case of Johnson v. Rasmus, supra, the Supreme Court said: “The only limitation upon the abandonment of an established public road is that it must not be done to the injury of the vested rights of abutting owners or persons similarly situated.” The plaintiff in our case is a person “similarly situated,” as was the relator in the case of The People on Relation of Phillips v. The Highway Commissioners of China, 35 Mich. 15. [See, also, McQuigg v. Cullins (Ohio), 47 N. E. 595, 596.]

There may be a vacation of a public highway by proceedings under the statute, as we have shown, or the vacation may occur by abandonment under section 10446, Revised Statutes 1909 — from nonuser by the public for a period of ten years continuously. That is to say, “a highway may cease to exist either by abandonment or by vacation according to law.” [2 Elliott on Roads and Streets (3 Ed.), sec. 1172.] The same authority (Sec. 1173) holds that the burden of showing an abandonment is upon the party who asserts it. The court in our case, in its finding of facts, stated that this road has been regarded by most of the people living in the neighborhood of it as an abandoned road. We do not believe this is sufficient to constitute abandonment. If no other way existed of vacating highways, it might be argued with good reason that what most of the people thought who were entitled to use a highway would be a controlling factor. In the case of O’Dea v. State (Neb.), 20 N. W. 299, 300, the rule is thus declared: “In order to vacate a road by nonuser, there must be a clear and entire abandonment of the road by the public for the statutory period. . . . Officers and courts cannot inquire into the extent of the use whether used much or little by the public. If used at all, the road will not ‘be deemed vacated.’ ” [See, also, Cox v. Commissioners of Highways of East Fork Twp. (Ill.), 62 N. E. 791, 793; Kelly Nail & Iron Co. v. Lawrence Furnace Co. (Ohio), 22 N. E. 639, 640.] In the case of Small v. Binford (Ind.), 83 N. E. 507, 510, the court said: “The fact that the road is rarely, if ever, used by persons other than the appellants, makes it none the less a public highway. The law does not fix the number of persons who must travel upon a road to determine its existence” — citing authorities. When a right to use a road as a public highway has become vested in the public it inures to the benefit of all the public; hence such a right cannot be surrendered or abandoned unless all of the public concur therein. The court in this case did not find that the public generally had entirely ceased to travel this road, but did find that it had not been traveled by the public generally to any extent for the last fifteen or twenty years; and that can only mean that the extent of the travel by the public was limited. The fact that defendant in the year 1912 took the law in her own hands and fenced up a highway that at least was still used by'the plaintiff and the children who attended the school situated on that road, and one that was recognized as an existing public road in 1907 by the county court, does not constitute an abandonment under the statute. Our Supreme Court in the case of Hickman v. Link, 116 Mo. l. c. 127, 22 S. W. 472, said: “ ‘Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect.’ ” We think the defendant in this case utterly failed to carry the burden cast upon her of establishing an abandonment of this public road,'and that the trial court clearly erred in its judgment. [37 Cyc. 194.]

Accordingly, the judgment is reversed and the cause remanded with directions to the circuit court of Wright county to set aside its judgment and enter a decree granting plaintiff the relief prayed for and taxing the costs of the suit against the defendant, Laura Pollock.

Sturgis, J., concurs. Robertson, P. J., concurs in the result.