21 Mo. 580 | Mo. | 1855
delivered the opinion of the court.
It is an error to suppose that the land over which a public road passes belongs to the state or county. The law, for the convenience of the community, has appropriated portions of the lands of individuals to be used as public roads or highways. Subject to this use or easement of the public, the soil over which the road passes remains in the owner, in the same manner as though no appropriation of it had been made. When the land of an individual is taken for a road, whether he gives it voluntarily or sells a right of way over it by claiming and receiving compensation, he must be understood as giving to the public power over it, to an extent that will enable it to construct such a road as the laws in force at the time require or permit to be made. The grant of a right of way for one purpose will not authorize the use of a road for another and a different purpose. One may be willing that there may be a right of way across his land for one purpose, and very unwilling that the same right should exist for another purpose. So, an authority to build one kind of road would not be a warrant for making another kind of road, which would increase the inconvenience and injury resulting to the owner.
At the time it is claimed this land was condemned for a high way, the law in force required that all roads should be laid out and cleared according to the utility of the same, with a proviso that no road should be laid out of a greater width than fifty nor of a less width than twenty feet, and directed that all roads should be cleared of trees one foot through, and of brush and limbs of trees which might incommode horsemen and carriages, and that no stump should exceed one foot in height, and that
The case of Callender v. Marsh, (1 Pick. 417,) is not applicable to that under consideration; it is like that of the City of St. Louis v. Taylor, (14 Mo. Rep.) which arose out of the opening of streets in a city, which stands upon different considerations.
There was no instruction asked or point raised as to the consent of Mrs. Williams to the construction of the road in front of her house ; besides, her consent, as given, if it availed any thing, could not prejudice the rights of others.
The other judges concurring, the judgment will be reversed, and the cause remanded.