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29 Mo. 23

Wyatt v. Thomas

Supreme Court of Missouri

Decided October 15, 1859

Supreme Court of Missouri · decided 1859-10-15

This was an action to recover damages for a trespass in throwing down plaintiff’s fences and exposing his fields so that his crop was destroyed and his stock went astray. The defendant justified on the ground that he was a road overseer and that the fences thrown down were in the public highway. The commissioners who made the location of the road did not call to their aid a survey, and no survey was made.

Cited by 3 later decisions — most recently June 1893

3 state decisions

Key passage — most relied on by later courts

““In the case of Walker v. Likens, 24 Mo. 298 , an -owner of land was not allowed to maintain trespass against the overseer, of a road, who was acting under the orders of the county court 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 case 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 with the orders of the court having jurisdiction over the subject.””

quoted by 1 later decision, including Crenshaw v. Snyder

Relies on Walker v. Likens

Good law ✅— No negative treatment on recordhow we know

Decided 1859-10-15

View the full empirical analysis of this case →

Napton, Judge,

¶1delivered the opinion of the court.

¶2In 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.

¶3The 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.

¶4The 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.

¶5Whether 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.
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