State v. Farrelly

36 Mo. App. 282 | Mo. Ct. App. | 1889

Rombauer, P. J.,

delivered the opinion of the court.

An information was filed against the defendant by the prosecuting attorney of Monroe county, based upon the affidavit of Gr. W. Sterrett, as prosecuting witness, charging the defendant with unlawfully obstructing a certain public road, by then and there building a fence therein to the great hindrance and inconvenience of the citizens. Upon this information the defendant was-tried, found guilty, and sentenced to pay a fine of' twenty-five dollars.

The defendant appealing has assigned numerous-errors which we need not notice in detail as we must, conclude upon a careful examination of the record, that-under the conceded facts the conviction was unwarranted.

There is no dispute concerning the following facts More than twenty years anterior to this prosecution there was a lane known as Crawford’s lane, dividing-sections 28 and 33 as shown on the map hereto annexed, leading westwardly from the Florida and Mexico road. The centre line of this lane was supposed to be the-dividing line between sections 28 and 33. In 1867, the county court, upon petition, established a public road along this lane, and the fences of the owners in sections-28 and 33 were supposed to be set along the southern and northern boundaries of the road thus established.

In April, 1886, Gf. W. Sterrett, the owner of section 28, began to circulate a petition to the county court, praying for the establishment of a public road, commencing at the Florida and Mexico road, at the southeast corner of section 28 and the northeast corner of section 33, running west one mile, and ending at the corner stone of sections 28 and 33.

It will be thus seen that, assuming that the former claim that the center of Crawford’s lane and the old public road was the true dividing line between sections 28 and 33, the new road to be established occupied the exact territory of the road already established; and, assuming that the said line was not the true dividing line, the object of the petition was not to establish a new public road, but to change its boundaries in some particulars, so as to give better accommodation to the traveling public, and in the main for the benefit of Sterrett. This condition of things is made palpable by the following diagram •

The boundaries of the old road, formerly Crawford’s lane, are shown by heavy lines, and the boundaries of the road sought to be established in 1886, by dotted lines ; the junction of the old road with the Florida and Mexico road being at points A. A., and that of the new road at points B. B. The offense of Farrelly consists of re-erecting his fence along the southern boundary of the old road between points C. C.

These being conceded facts, we have no hesitation to say that the county court could not in 1886, upon a petition to establish a new road, change the boundaries of the old, without a showing that the establishment of the old road in 1867 was legally invalid. Of such showing there is no pretense in the evidence. Its judgment, in 1886, was therefore ultra vires and void, regardless of other informalities in the proceeding. Herman on Estoppel, secs. 438, 439, 440.

The counsel for the state claims, that since the court had unquestioned jurisdiction to change or widen a road, even if already established, and since the proceedings for that purpose under section 6935, Revised Statutes, are the same as for establishing a new road, this objection is wholly without merit. We think otherwise. The county court can obtain jurisdiction only by virtue of the petition, and can no more obtain jurisdiction to change a road under a petition for establishing a new road than it could for establishing a new road under a petition to widen one which has no legal existence. Won constat, but the twelve householders, whose signatures are an essential prerequisite, may have signed this petition upon the faith of the fact, that no legal road did exist at the point indicated, a fact which the petition necessarily implies, and would have declined to sign it, if advised that the contemplated proceeding was the mere change of the boundaries of a legal road, and an incidental change of a disputed boundary line, between abutting proprietors.

The right of the exercise of eminent domain being in derogation of the rights of the citizen can be justified only on the ground of necessity, and when exercised, the statute conferring the right must be strictly adhered to and complied with. Leslie v. St. Louis, 47 Mo. 474.

It results from the foregoing, that the judgment must be reversed, and the defendant discharged. It is so ordered.

All the judges concur.