143 Mo. App. 313 | Mo. Ct. App. | 1910
I. As we have stated, this case was tried upon the theory that the public highway which the defendant is charged to have obstructed had been dedicated by public user prior to such obstruction.
In cases where it is sought to establish a dedication by user, it being an exceptional and peculiar mode of passing title to interests in land, the proof must usually be strict, cogent and convincing and the acts proved must not be consistent with any construction other than that of a dedication. In criminal prosecutions for obstructing public highways in .which dedication is sought to be .proved, such dedication must be established beyond a reasonable doubt. [13 Cyc. 476.] Even in civil cases, more must be shown than a mere neighborly license and that measure of proof must be furnished which is required to divest the title out of the real owner and vest it in that intangible entity, the public. [Field v. Mark, 125 Mo. loc. cit. 517, 28 S. W. 1004.] A careful examination of this case shows that any obstructions the defendant may have made were made for the purpose of protecting his title to his land against unlawful use by the public which had attempted illegally to appropriate it without right and without making the owner any compensation. The demurrer to the evidence should have been sustained.
“You are instructed that the proceedings had in the county court to establish and open the road charged to have been obstructed by the defendant, Hood, are insufficient in and of themselves to constitute a legal public road or highway, but if you find and believe from the evidence that the said road was opened by an order of the county court of Greene county, and that a plat thereof was made and filed with the clerk of the said county court, and that said road was used continuously as a public highway by the traveling public for a period of ten consecutive years prior to December — , 1904, then said road is a legally established public road.”
This instruction was erroneous and should have been refused. It takes more than a continuous use to make a road a public highway by user. There must be an adverse use for the statutory period and this must be continuous and exclusive. [State v. Walters, 69 Mo. 463.] And. it must be acquiesced in by the owner. [State v. Wells, 70 Mo. loc. cit. 638. See also Bauman v. Boeckeler, 119 Mo. 189, 24 S. W. 207; Bowman v. Lee, 48 Mo. 335; State v. Baldridge, 53 Mo. App. 415; Rosenberger v. Miller, 61 Mo. App. 422.] The fact that the defendant may have at one time allowed a public road to be across his land does not show an intent on his part to dedicate it to public use if at other times he built wire fences across the road and performed other acts of ownership. [Field v. Mark, supra.]
The evidence in this case is insufficient to show that the public acquired title to defendant’s land by prescription and does not support a conviction. The judgment is therefore reversed and the defendant discharged.