91 Mo. App. 329 | Mo. Ct. App. | 1902
— The defendants were indicted, tried and convicted in the circuit court of Platte county for obstructing a public road. The indictment was in three counts, but as the jury returned a verdict of guilty on the first count alone it is the only one in issue in this court.
The road in controversy is one leading from New Market in Platte county, to Wallace in Buchanan county. It is shown by the evidence that at and prior to the year 1866 the road in question ran “angling” over the lands of one lewis, but it was changed so as to run east and west, and, as we presume, along the north line of said lewis’s land. It is not claimed that the road was regularly laid out, although it appears that some steps were taken for that purpose. At the time, or soon after the change was made, lewis, the owner of the land, planted a hedge fence along the south side of said road’which remained until about the year 1893 when the defendants cut it down. It seems also that said lewis had erected a rail fence on the north side of said hedge, presumably for its protection while it was growing. The evidence tended to,
It was claimed by the State that the circumstances in evidence showed a dedication by Lewis of his ground between the hedge fence on the south and the fence on the north. And the jury were told in an instruction in behalf of the State that if they believed from the evidence that “Lewis, on whose land said road was laid out, planted a hedge fence along the south line of said road and intended at the time that said hedge fence should mark the southern boundary of said road, and that said hedge fence remained there as the southern boundary of said road for ten or more consecutive years before the board and wire fence was erected, then the defendants did not have any right to erect a fence north of the hedge fence in said road, even though the jury may believe from the evidence that there was sufficient space left north of said board and wire fence for the usual' and ordinary - travel along said road.”
The defendants assign thé giving of this instruction as error, and suggest that instruction number nine, asked in their behalf and refused by the court, should have been given. Said instruction is as follows. “The jury is instructed that the State relies for the establishment of the public road alleged to be obstructed, known in the indictment as the Wallace and New 'Market road upon dedication and user, and the road under the law is confined to the traveled public road and the width used.”
We think the trial court was right in giving .the instruction objected to and refusing the one asked by the defendants. If the said Lewis by planting his hedge on the south side of said supposed road intended to dedicate it to the use of the public, and the public accepted the same by user by traveling along the same, its rights are not restricted to that particular
During the trial the State offered and read in evidence the report of the road commissioners, to which the defendants objected on the ground that it was not in order. We have not found this report in the bill of exceptions. It is therefore impossible to tell whether the defendants could have been prejudiced by the action of the court in permitting it to go to the jury. The objection also should have been more specific.
We believe the case was fairly submitted to the jury by the instructions of the court, and the finding is well supported by the evidence. The case is affirmed.