* Headnotes 1. Injunctions, 32 C.J., Section 461; 2. Highways, 29 C.J., Section 385. Action in circuit court of Christian county asking for a writ of prohibition against the judges of the county court of said county to prevent the issue of a temporary writ of injunction. A temporary writ of prohibition was issued by the circuit judge in vacation. When the circuit court convened the respondents filed a motion to dismiss the temporary writ of prohibition issued by the judge in vacation. This motion was sustained and damages assessed. Relator appealed.
The essential facts shown on the record before us are as follows: A petition for a permanent injunction was filed in the circuit court of Christian county by the James River Special Road District against W.K. Gibson. A copy of the petition was presented to the county court of Christian county and that court asked to issue a temporary writ of injunction to hold until the case filed in the circuit court could be heard. The county court was about to take cognizance of said application for a temporary writ of injunction when this proceeding of prohibition was started to prevent the county court taking cognizance of said application for a temporary restraining order on the ground that the county court was without jurisdiction in the premises.
The only question before us is whether the county court had jurisdiction to grant a temporary writ of injunction on the petition presented to it. That question must be determined by a construction of the petition filed in the circuit court, a copy of which was the petition presented to the county court. If that petition alleges facts sufficient to show jurisdiction in the circuit court to issue a permanent writ of injunction, then the county court had jurisdiction to issue a temporary writ of injunction. If the petition filed in the circuit court would not support a judgment in that court granting the relief prayed for then the county court could not issue a temporary writ. Albers Commission Co. v. Spencer, 245 Mo. 368, 150 S.W. 712.] *Page 465
The purpose of the petition filed in the circuit court by the Special Road District was to enjoin and prevent the defendant, W.K. Gibson, from interfering with plaintiff in working a certain alleged public road in the district. The petition alleged that the road in controversy had been opened as a public road by order of the county court in 1898 and attempts to set out the proceedings of the county court by which that result was accomplished. We need not recite all that is there pleaded as to the records of the county court but shall allude to what we regard as essential here. The petition shows that the road adjoins Mr. Gibson's land and in fact a part of his land is supposed to have been taken to constitute a part of the road and that his fence is five feet over the line of the road and that he will not move the fence back nor permit the plaintiff to move it. The defendant is alleged to be in possession of the five foot strip of ground in controversy. There is no allegation in the petition that he had ever granted a right of way for this road or that the county or the Special Road District had ever had possession and exercised control over it for a period of time sufficient to bar defendant by the Statute of Limitations. Unless defendant was barred, or had relinquished the right of way, or the right of way had been condemned, he could not be compelled by injunction or otherwise to surrender possession of his land until it had been properly condemned and his damages paid. That essential allegation was omitted from the petition and without an allegation of facts to show that defendant had relinquished a right of way or was barred by the Statute of Limitations or that the land had been properly condemned, the petition would not support a judgment and did not confer jurisdiction on the county court to issue a temporary writ of injunction which, in effect, would compel the defendant to sit quietly by and see his land taken and appropriated without compensation provided by the State Constitution being paid. *Page 466
Our conclusion is that the circuit court erred in dismissing the temporary writ of prohibition. On the contrary it should have been made permanent. This disposition of the prohibition proceeding need not necessarily dispose of the injunction case in the circuit court. If the facts so warrant, the petition in the case in that court might be so amended as to confer jurisdiction to proceed.
The judgment will be reversed and the cause remanded with directions to set aside the judgment of dismissal and assessment of damages and enter a judgment making the temporary writ of prohibition against the judges of the county court permanent.Bradley, J., concurs; Bailey, J., not sitting.