Opinion
No. 37989.
March 2, 1943. Rehearing Denied, April 6, 1943.
INJUNCTIONS: Highways: Courts: Judgments: Order Establishing County Road Valid: Proper Notice to Landowners Inferred: Interference With Use by County Should be Enjoined. The county having previously used a width of 40 feet, attempted to condition the county road to a width of 60 feet, which it claims is the legal width, and seeks an injunction against interference by an abutting owner claiming a width of only 40 feet. The road was formally laid out in 1849 pursuant to an order of the county court reciting a width of 60 feet under a statute requiring a minimum width of 60 feet. The report of the commissioners, which was approved by the county court, recited that they had located the road and that no objection was offered by any proprietor to the location of the road as surveyed. It will be inferred that the abutting landowners had notice.
No question of adverse possession, waiver or abandonment is presented by the record.
The assumption of certain county surveyors that the road was only 40 feet wide is immaterial.
Interference with the use of the disputed strip by the county should be enjoined.
Appeal from Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.
REVERSED AND REMANDED ( with directions).
Erwin Vetter for appellants.
(1) The order and judgment of the County Court of St. Louis County on December 18, 1849, establishing Sappington Barracks road sixty feet wide is immune from collateral attack. Bingham v. Kollman, 256 Mo. 573, 165 S.W. 1097; Naeglin v. Edwards, 228 S.W. 764; State v. Dugan, 110 Mo. 138, 19 S.W. 195; Lindo v. Burford, 112 Mo. 149, 20 S.W. 459; State ex rel. v. Taylor, 224 Mo. 393, 123 S.W. 892; State ex rel. v. Wilson, 216 Mo. 215, 115 S.W. 549; In re Petition of Gardner, 41 Mo. App. 589; Mitchell v. Kansas City I.R.T.R. Co., 138 Mo. 326, 39 S.W. 790; Rose v. Kansas City, 128 Mo. 135, 30 S.W. 518; Seafield v. Bohne, 169 Mo. 537, 69 S.W. 1051. (2) An order entered in 1849 under the Constitution of 1820 could not violate the Constitution of 1875 nor the Fourteenth Amendment to the Constitution of United States adoped in 1868. 12 C.J., p. 721, sec. 80; p. 1193, sec. 958; p. 1194, sec. 959. (3) Defendant's claim of title by adverse possession or prescription to a ten-foot strip in the public road is without foundation in law, since the untraveled portion of a public road, used by the public from the date of its establishment, cannot be acquired by adverse possession. Baughman v. Faulwell, 156 Mo. App. 227, 137 S.W. 627; Eckerle v. Perry, 297 S.W. 424; St. Louis v. Missouri Pac. Ry. Co., 114 Mo. 13, 21 S.W. 202; Wright v. City of Doniphan, 169 Mo. 601, 70 S.W. 146; Brown v. C.B. K.C. Ry. Co., 101 Mo. 484, 14 S.W. 719; Union Elevator Co. v. Kansas City Suburban Belt Ry. Co., 135 Mo. 353, 36 S.W. 1071; Fiorella v. Jones, 259 S.W. 782. (4) The defense of estoppel is not pleaded, nor will an estoppel arise in favor of one encroaching upon a public highway. Wright v. City of Doniphan, 169 Mo. 601, 70 S.W. 146; Laclede Christy Clay Products v. St. Louis, 246 Mo. 446, 151 S.W. 460; Drannek Realty Co. v. Frank, 139 S.W.2d 929. (5) All roads in this State established by order of the County Court and used as a public highway for a period of ten years or more are "legally established public roads," and any irregularity in the proceedings to open such roads is cured by Sec. 8485, R.S. 1939. Sec. 8485, R.S. 1939; Harper v. Morse, 46 Mo. App. 470. (6) A survey made by a county surveyor in which the width of a road is "assumed" is not competent evidence or proof of the width of a road established by order of the county court. Calif. Special Road Dist. v. Bueker, 256 S.W. 98; Laclede Christy Clay Products v. St. Louis, 246 Mo. 446, 151 S.W. 460. (7) "All county roads established in St. Louis County in the year 1849 are as a matter of law sixty feet in width," unless a greater width is fixed by order of the county court. Laws 1849, p. 591, sec. 8.
Henry C. Stoll and J.E. Higgins for respondent.
(1) Appellate courts are bound by the findings of fact of the trial court if supported by any credible evidence. Stubblefield v. Husband, 106 S.W.2d 419; Stephen v. Fowlkes, 338 Mo. 527, 92 S.W.2d 617; St. Louis Union Trust Co. v. Busch, 145 S.W.2d 426; McKinney v. Hutson, 336 Mo. 867. (2) A county court is one of limited jurisdiction, and can exercise its jurisdiction only in the manner prescribed by statute. State ex rel. v. Redman, 194 S.W. 260; St. Louis v. Hollrah, 175 Mo. 79; State ex rel. Ray v. Arcadia Timber Co., 274 Mo. 263. (3) Even though the judgment of the county court is not subject to collateral attack, its invalidity, appearing on the face of the record, may be shown. Givens v. Harlow, 251 Mo. 231; Howell v. Sherwood, 213 Mo. 565. (4) The judgment of the St. Louis County Court of 1849, if it were given an ordinary interpretation, indicates an intention to comply with the Act of January 20, 1847. Laws 1847, pp. 322, 323, sec. 3. (5) The taking of property without proper notice, and without compliance with law, would be a violation of the Constitution of Missouri of 1820. Constitution of Missouri 1820, Art. XIII, Sec. 9; Laws 1847, pp. 322, 323, sec. 3. (6) Sec. 8485, R.S. 1939, is not applicable to the present case. Proctor v. Proctor, 222 Mo. App. 21, 4 S.W.2d 882.
Action to enjoin the defendant from interfering with county employees who seek to condition for use, to a width of sixty feet, Sappington-Barracks Road in St. Louis County. The road existed as a trail or pathway through "timber country" from time immemorial. For many years it has been used to a width of forty feet. In 1941 the county proceeded to condition for use ten feet of the ground on each side of the forty feet used as a public road. Defendant owner of abutting property claims the road is only forty feet in width. The county claims the road is sixty feet in width. On county employees entering upon the ten foot strip of land adjacent to defendant's property, title to which is in controversy, defendant ordered them from the strip and threatened them with violence. Thereupon the county sought relief by injunction. The trial chancellor found that the controverted strip of land was not a part of the public road and dismissed plaintiffs' bill for an injunction. From this order plaintiffs have appealed.
The road was formally established as a public road in 1849 under the Laws of Mo. 1844-45, p. 343, as amended by the Laws of Mo. 1848-49, p. 592. The Laws of Mo. 1844-45 required a road to be "a necessary width not exceeding sixty feet." (p. 344.) This was amended to require a road to be at least sixty feet wide, with the provision that any portion of the road may be eighty feet wide in the discretion of the county court. [Sec. 8, Laws of Mo. 1848-49, p. 592.] There is no question of adverse possession, waiver or abandonment presented by the record.
Furthermore, the proceedings in the county court, prior to the report of the commissioners on the establishment of the road, are not challenged. In other words, the court had jurisdiction of the case. [Seafield v. Bohne, 169 Mo. 537, 546, 551, 69 S.W. 1051.] Even so, defendant contends that the failure of the commissioners to expressly state in their report the width of the road authorizes a collateral attack on the judgment establishing the road. Thus it appears that the only question presented by the record is whether or not the then owners of the land had notice of the extent to which their land would be appropriated for public use.
Of course, the judgment of the court is based upon the report of the commissioners and the statute fixing the width of the road. The report submitted to the court a survey and plat of the proposed road showing the location. The certificate of the commissioners to the report follows:
"We certify that we caused the above survey to be made and that there was no objection offered by any proprietor to the location of the road as thus surveyed. And we therefore recommend that the same be established as a public highway. By order of the county court dated the 17th day of October, 1849."
On December 18, 1849, judgment was entered on the report as follows:
"Jesse Stoner and Dolph Conlin a majority of the Commissioners appointed by the Court on the Seventeenth day of October, 1849, to mark and lay out a road from the road leading from St. Louis to Fenton at or near the corner of the North lines of the lands of Tyre Sappington and John Sappington Sen. and running thence East the nearest and most practicable route to Jefferson Barracks, this day appear in Court with their report in the premises accompanied by a map of the survey of said road as laid out by them, which report being read in open court and no objections being made to the establishment of said road the report of said Commissioners is approved and it is ordered that the said road be declared a public highway in conformity to the survey thereof, and opened to the width of sixty feet."
It is admitted that both the survey and plat accurately fixed the center line of the road. Of course, the then property owners had statutory notice that the road must be at least sixty feet in width. Furthermore, it is not conceivable that they would consent to the establishment of the road without actual knowledge of the width of the proposed road. It must be inferred that they had such knowledge. If so, the judgment of the court fixing the width of the road at sixty feet did not take from the then owners any land without lawful notice. Furthermore, the commissioners certified that, under order of [891] the court, they located the road. They could not have done so without laying out and marking the same.
Furthermore, the assumption by certain county surveyors that the road was only forty feet in width is of no consequence in determining the above stated question of notice presented by the record.
It follows that the judgment should be reversed and the cause remanded with directions to enter judgment permanently enjoining the defendant from interfering with conditioning the controverted ten foot strip of ground for use as a part of the public road. All concur.