State v. Hood

1. CRIMINAL LAW: Obstructing Highway: Dedication by User, •Where the road with which defendant was charged with obstructing had for its initiatory establishment an order of the county court based upon irregular and defective proceedings, and defendant protested against its use as a public road and claimed the land as his own and built fences across it from time to time which were torn down by the road overseer; held, ' that the attempt on the part of the public by user to appropriate defendant’s property for a highway, without compensation, was insufficient to deprive him of his property and that, under the evidence, he was not guilty of obstructing a public highway. 2. -: -: -:-. The fact that defendant, charged with obstructing a highway, may have, at one time, allowed a road across the land to be used by the public does not show an intent on his part to dedicate it to public use if at other times he built wire fences across the road and performed other acts of ownership. 3. -: -: -: Instruction. It takes more than a continuous use to make a road a public highway by user. There must be an adverse use for the statutory period, and this must be continuous and exclusive, and it must be acquiesced in by the owner. An instruction which failed to include all these elements held erroneous. 4. -: -: -: Evidence. In criminal prosecutions for obstructing public highways in which dedication is sought to be proved, such dedication must be established beyond' a reasonable doubt. 5. HIGHWAYS: Dedication by User: Evidence. The evidence necessary to show the establishment of a highway by user must show more than a mere neighborly license, and that measure of proof must be furnished which is required to divest the title out of the real owner and vest it in the public.

Appeal from Greene Criminal Court. — Eon. A. W. Lincoln, Judge. (1) Instruction number one should ha.ve been refused, because it fails to instruct the jury “that ten years adverse occupancy and use of a road by the public will be sufficient, if acquiesced in by the owner, to vest in the public an easement in the road and cause it to become a public highway.” State v. Wells, 70 Mo. 635; State v. Walters, 69 Mo. 463; State v. Baldridge, 53 Mo. App. 415; State v. Culver, 65 Mo. 607; State v. Bishop, 22 M'o. App. 435--; Bauman y. Boeckeler, 119 Mo. 189; Elliott on Streets and Roads (Ed. 1890), 137, (Ed. 1900), 188. (2) It takes more than a continuous use to make a road a public road by user. There must be an adverse use of the way for the .statutory period, and this use must be continuous and of right. It must be exclusive, not only of the owner but of all other persons. .1 Am. and Eng. Ency. of Law, 795; 9 Am. and Eng. Ency. of Law, 39; Bowman v. Lee, 48 Mo. 335. Statement. — This was a prosecution by information filed in 1904 in the criminal court of Greene county charging the defendant with obstructing a public highway by unlawfully fencing across the south end of said road with three strands of barbed wire. Defendant admitted the obstruction but defeuded on the ground that the road had not been' legally established. The evidence offered by the State tended to show that the road in question had been petitioned for in the county court about the year 1890; that the proceedings by which it was sought to dedicate the road were irregular, and that the road was never legally established under the statutes of this State applicable to such cases. The State tried the case on the theory that the road had been dedicated by public use for a period of more than ten years. The evidence showed that in 1893 the defendant purchased some of the land along which the road was intended- to be established and that he subsequently acquired other land along the proposed route. There was evidence introduced by the State showing that portions of the road had been used for public purposes ever since the application was made to the county court to establish the road in 1890. The evidence also tended to show that the defendant, after he acquired the land, protested against the opening and use of said road by the public, claiming that the proceedings in the county court were void and claiming the land adversely to the public and constructing fences across and along said road; that these fences were torn down, but that he subsequently rebuilt them and ordered all persons to keep off the land, and protested to the road overseers against any work being done on the road or any funds being expended thereon.- Several witnesses for the State who had been road overseers in this road district, testified that for eight or ten years prior to the time of the trial, defendant had maintained wires across the road and warned them not to work the road and notified them that it was not a legal highway. Upon trial, the jury found the defendant guilty and assessed his punishment at a fine of five dollars and costs. The case is here on appeal. The errors relied on for reversal are that the court denied defendant’s. demurrer to the evidence offered by the State, and that the court gave improper instructions at the request of the State.