Wyatt v. Thomas, 29 Mo. 23

Wyatt v. Thomas

29 Mo. 23 | Mo. | 1859

Napton, Judge,

delivered the opinion of the court.

In the case of Walker v. Likens, 24 Mo. 298, an owner of land was not allowed to maintain trespass against an overseer of a road, who was acting under the orders of the county *24court in proceeding to open a road over the land of the party complaining, although it did not appear, from the report of the commissioners who laid out the road, that the complaining owner had consented to the road going over his land, or that the proper steps had been taken to condemn the land to public uses, as in cases of the owner’s refusal. Here was a case where a constitutional safeguard had been set at naught; but the remedy was not considered to lie in an action against the officers, who were but acting in conformity to the orders of a court having jurisdiction over the subject.

The present suit is against the overseer of a road district for opening a road across plaintiff’s land under orders of the county court, and the liability of the defendant is attempted to be placed upon the vague and indefinite character of the report of the commissioners who located the road, which is supposed to invalidate it and make the order based on it no protection to the officer. But conceding its deficiencies, it is not perceived how they could have any greater efficacy in vitiating the proceedings of the officers, who undertook to execute the orders of the court, than the omissions^which occurred in the report and action of the commissioners in the case to which we have alluded.

The statute does not require the road to be surveyed. It is left to the discretion of the commissioners whether they will employ a surveyor and the necessary assistants. In a great number of cases, we know such is not the practice; and in all these cases, when there is no actual survey, the description of localities, courses and distances must necessarily be somewhat vague, and the designated route is chiefly ascertained from the stakes set or the trees blazed.

Whether the line of the road, as reported in this case, actually passed over the plaintiff’s enclosure and required the removal of his 'fence, was a question for the jury.

Judge Ewing concurring, judgment affirmed. Judge Scott absent.