Butler, Appellant, vs. Barr et al., Respondents, 18 Mo. 357

Scott, Judge, delivered the opinion of the court. 1. The questions involved in this controversy, are new and of some importance. This judgment must be reversed, for the refusal of the court to give the instruction, to the effect, that the overseer, in opening a road, should follow the marked trees on the line of the road, and where two trees are marked on the line of a road, and nothing more appears from the report of the commissioners or otherwise, a straight line from one of these trees to the other, is the line of the road in contemplation of law.

This was the turning point of the case, and the law should have been distinctly put to the jury. The instructions given in lieu of those asked, evaded this question. It must be obvious to all, that it would be unwise to trust an overseer of a road with the power to change its location at his discretion, against the will of the owner of the land over which the road passes. The public would frequently suffer, even if it could be done with the consent of the owner.

When we consider the mode pointed out by law, for viewing and locating roads, the qualifications of the commissioners, their number, we cannot for a moment suppose, that it was intended that their action should be changed or varied by a road overseer. This officer may be wholly irresponsible, and yet, under such authority, influenced by malice or some worse motive, he may do a proprietor over whose land the road passes, a great injury.

After the care taken to have a road located by commissioners, it never was designed that an overseer should change its location to suit his notions of public utility; An owner of land may not object to the road as marked by the commissioners, and yet would strenuously oppose a change made by the overseer, and under this power, there would be no mode of redress, whereas objections can be taken to the report of the viewers.

There may arise difficulties from the vagueness of the report of the commissioners, in the application of this rule, but, like all other rules, it should have a reasonable and practical application. -Certainly it should have that degree of stringency which will restrain overseers from indulging their malice to the serious injury of those over whose land the road may pass.

When two objects or trees on a line, distant from each other, are designated or marked by the road commissioners, and nothing appears to the contrary from their report, the presumption is, that the road, from the one object to the other, is located on a straight line. 2. When the viewers have reported, and the road is ordered to be opened, they are then funcii officio, and their opinions as to where the road should be, can avail nothing. They cannot vary or change the legal import of their report by their parol testimony.

They, like any other witness, may be examined to show that the road opened is on the line designated in the report. 3. We know the looseness with which all the proceedings in relation to the surveying and opening of roads are conducted in our courts ; indeed the members of those courts are not required to be skilled in the law, nor are they sought from the legal profession. To apply to such proceedings the technical rules which, in some places, govern courts of limited jurisdiction, would put a stop to all road opening in this state.

It would be great injustice to require a road overseer to ascertain whether all the steps, previous to his appointment, were regular, and to hold him a trespasser in the event of their turning out to be otherwise. The employment is forced upon him under a penalty ; he receives no compensation ; under such circumstances, whilst acting in good faith, the order appointing him should be a protection from all litigation, on the score of the courts having deviated from the law, as it clearly possessed jurisdiction of the subject matter.

Frequently the roads are very loosely described in the orders appointing road overseers ; under such circumstances, evidence out of the record must be admissible to show for what districts they were appointed. The order appointing Barr road overseer for district No. 46, was a sufficient warrant in law to justify the opening, as well as the working or repairing of that district. The other judges concurring, the judgment is reversed and the cause remanded.