279 Mo. 524 | Mo. | 1919
This is a proceeding to open and establish a private road over the. lands of appellants, connecting the lands owned and occupied by the respondent with a public road running some distance to the west of it. It was begun in the County Court of Gasconade County, in which county the petitioner resides and all the lands involved are situated. The road' was laid out and established in due course by -the county and damages regularly accessed. An appeal was taken from that court to the Gasconade Circuit Court where the matter was retried, and the court made its findings as required, which are fully sustained by the evidence. The findings and judgment of the circuit court were made and entered at the January term, 1916, and are as follows:
“Now on this day the above cause coming on to he heard, and the plaintiff, Fred Wiese, appearing in person and being represented by counsel, and the defendants, John Thein and Vineenit Skornia, both appearing to this suit in person and being represented by counsel, and the matters in issue being taken up and considered by the court, and the court, after seeing and hearing the evidence adduced by the plaintiff and the defendants and each of them, finds for plaintiff, Fred Wiese; finds that the said Fred Wiese is an inhabitant of Gasconade County, in the State of Missouri; that he is the owner of the south half of the northeast-quarter of Section 21, Township 41 North, Range 4 West, in Gasconade County, Missouri, upon which he resides with his family; that the Bourbois Rivet-crosses the east end of his said lands in a general north to south direction, about 200 'yards west of and
“It is therefore ordered and adjudged by this court that the said private road be established according to the prayer of the petition and plat of same, to-wit:”
Here follows the description of the center line of the road twenty feet in width as located by the commissioners. The remainder of the judgment relates to the payment of damages and costs.
The petition is in two counts. The -first asserts that the petitioner is an inhabitant of Gasconade County; that he owns the south half of the northeast quarter of Section 21 and all that part of the northeast quarter of the southeast quarter of Section 21 lying west of the Bourbois River, in Township 41 north, of Range 4 west, in said county; “that he has no road from said lands and premises except through gateways and over the lands of others.” The second count states “that no accessible public road-passes through or touches said land.” Each count sets out in detail the necessity and use for a private road leading west from the premises described.
I. It will be seen from the foregoing statement that the only issue between these parties is a naked right of the petitioner under the Constitution and laws of this State to have access to the farm on which he resides through and over the. lands of the defendants. There is no' question of damages. These were ad’mitted to be just and reasonable, and include all those elements which the law recognizes as subjects of pecuniary compensation. Whether the vigorous defense proceeds from a desire for a holiday in court or from a
The framers of our Constitution were not inventors of the doctrine of private ways of necessity. They existed by the common law, and were usually said to be founded upon a presumption of grant or reservati°n; as where one sold a close surrounded by his own estate he was presumed to -grant the easement of access, or if he sold his surrounding-estate and reserved the close a reservation would be presumed of the same easement. In Snyder v. Wavford & Thomas, 11' Mo. 328, the same doctrine was said to apply to the United States as an original proprietor in the disposition of the public lands. Judge Napton speaking for the court said: “The United States being- the proprietor of a section of land, entirely surrounded by eight other sections, sells the section so surrounded; the purchaser acquires, by the common law, a right of way to the land he has bought, as a necessary incident of the grant. The case is not altered by the United States selling the surrounding land to, different individuals. The purchasers take it subject to the burden imposed on it whilst it belonged to the Grovemment, the original proprietor.” The State did not exceed its jurisdiction over private property within its limits by recognizing and perhaps enlarging, the application of this principle in Section 20 of Article 2 of the State Constitution, by excepting private ways of necessity from its guaranty of inviolability and expressly vesting in the Legislature the power to prescribe the manner in which such easements might be acquired. It was in pursuance of the authority so conferred that Section 10447, Revised Statutes 1,909, by which this proceeding must be judged, was enacted. It prescribes no formula of words in which the petition must be set forth that the petitioner is the owner of thé tract of land for which the easement is desired, and that no public road passes through it or touches it.
wor(^s express these facts in plain unmistakable terms are sufficient. This petition for instance states “that no accessible public road passes through or touches said land.” The word “accessible” is relied on by appellants as rendering this petition insufficient and the judgment rendered upon it null and void. The argument implies that there could be such a state of facts that a public road might touch the land and still be absolutely inaccessible to it. This involves a distinction altogether too shadowy for application by a court. To relieve the law from the charge of absurdity we must assume that the Legislature intended such a contact with the premises involved as would give access to the premises and thus avoid the necessity upon which the legislative right is founded. The petition is good and needs only to be sustained by the facts.
II. As we have already seen the right conferred by this statute is not a personal one, but pertains to the land to which it becomes appurtenant. It is the situation of the land that calls for its application, and the owner for the time being is the instrument by which the proceeding is instituted. The statute requires that he be the owner of a tract or lot of land and that no public road passes through or touches it, and it is to this tract alone that .the right appertains. That the same proprietor has other lands- in the same or adjoining counties does not impair his statutory remedy. The lines of Government subdivision have no application, even though they may be used in his title deeds to describe the extent of his holding. For instance; it is a matter of common knowledge that the Government, in surveying the public lands, frequently meanders a stream, so that no subdivision line is permitted to cross it; while in other cases, as appears to have been done in this, the subdivision lines cross the stream so that its bed is included in the description of sectional subdivisions. The
In this case the farm of the petitioner is situated on the west bank of the Bourbois River at a point where the stream is unfordable throughout a considerable portion of each year. One of its Government subdivisions extends across the river a distance of about two hundred yards. The east bank of the river is formed by a palisade of perpendicular rock surmounted by boulders which cover practically the entire strip. On this bluff runs a road which touches the east line of the strip for a distance of sixty-nine feet, and then •passes southwesterly away from it. The court has found that to construct a road from its farm to the road on the top of the bluff, so that it could be used only during that portion of the year when the stream was fordable would cost approximately four thousand dollars, which would be conficatory of his land, which means as far as it means anything that the cost would amount to as much or more than the value of his farm. It is perhaps unnecessary to take into consideration the fact that by passing this ford and climbing the bluff his children attain a school house less than a mile from his residence by going three and one-half miles and recrossing the river at another ford during that portion of the year when -the stream is fordable. The same disparity of .conditions exists in reaching available trading and shipping ■ points. These facts force the conclusion that for the purpose to which the provisions of Section 10447 apply, the tract owned by peti
III. The only remaining question is whether the mere fact that the respondent in his petition has described his holding as including the bluff on the east side of the river precludes him from presenting the case in the aspect we have considered. We do not think so. The disclosure of the real situation in his petition has no other or greater effect than does the disclosure of the same facts in evidence. He simply presented his entire ease to the county court and called for the determination of his right, and the law will not punish him for that commendable course. We think that upon the whole case as presented in the petition and upon the trial he is entitled to the relief granted him in the circuit court and its judgment is therefore affirmed.
The foregoing opinion of Brown, C., is adopted as the opinion of the court.