Cox v. Tipton , 1885 Mo. App. LEXIS 361 ( 1885 )

Opinion by

Hail, J.

1. The first point made by defendant is- that the petition fails to allege facts sufficient to entitle plaintiff to the relief prayed for therein. The petition is sufficient. It affirmatively alleges that the “road prayed for is of great necessity.” The petition is not open to the objection made and held good by the court in the case of Colville v. Judy (73 Mo. 651).

2. This proceeding is a proceeding in inmtum “against common law and common right,” and must be strictly construed. Colville v. Judy, supra. By "way of necessity” is meant, not a way of convenience, but a way of strict necessity. Tiedeman on Real Property, sect. 609. “Prom all the authorities referred to, it is clear that when a way is claimed of necessity, it is a good answer to show another way which the party may use.” Holmes v. Goring, 2 Bing. 76, and vol. 16, p. 124 of Central Law Journal. The fact that the way is one of necessity, that is, strict necessity, and not mere convenience, is a jurisdictional fact, and must be alleged and proved, affirmatively. Colville v. Judy, supra. So long as the plaintiff had a practicable way to and from his land, either private or public, he had not a right, by necessity, to a way over the defendant’s lands. A way, as here used, is a right of way — the privilege of going over another’s land. Away, as here meant, is away, snoh as the plaintiff by the judgment of the circuit court, obtained over the defendant’s land. In other words, a way, as here meant, is a legal way, to use which one has a legal right, which may be enforced, and which may not be rightfully interfered with.'

3. The court properly refused the last declaration of law asked by defendant. Unless the plaintiff had a legal right of way over the surrounding lands, which he could enforce, he had no way to and from his land, and the necessity for a way existed. A refusal by the owners of the surrounding lands to permit him to pass over their lands, was not necessary to constitute the necessity. The only evidence found in the record to support that declaration of law is, that certain lands, lying between plaintiff’s land and a public road, were “open public commons, and were not and never had been fenced.” This evidence did not tend to' establish any right of way had by plaintiff over such open lands. And besides, the plaintiff in rebuttal introduced evidence that the owner of the open lands was threatening to fence them, contradicting any possible presumption of a right of way over them by plaintiff.

4. Against the evidence offered by the defendant tending to prove the existence of a public road touching the plaintiff’s farm, the plaintiff in rebuttal introduced evidence of the failure of the county court and road overseer, to recognize such road as a public road. Such recognition was not necessary to make the road a public road. “ Ten years’ adverse occupancy and use of a road by the public would be sufficient, if acquiesced in by the owner, to vest in the public an easement in the road and cause it to become a highway.” State v. Wells, 70 Mo. 636.

The circuit court erred in refusing to give the second and third declarations of law asked by defendant.

The judgment of the circuit court is reversed and this proceeding is remanded.

All concur.