
    Rose et al., Appellants, v. Garrett.
    Injunction: pbactice in supbeme coubt: opening- public boad. Where the judgment of the circuit court, establishing a public road, has been reversed and the proceedings held null and void by the Supreme Court, and after the rendition of its judgment and before its reversal, the circuit court dissolved a temporary injunction restraining the road overseer from opening the road in question, such judgment will also be reversed and the temporary injunction made perpetual.
    
      Appeal from Johnson Circuit Court.— Hon N. M. Givan, Judge.
    Reversed.
    
      Cockrell & Suddath for appellants.
    The court will readily perceive that the road and lands in controversy in this case are the same as those involved in the case of Anderson v. Pemberton, 89 Mo.' 61. This court, in its opinion in that’ case, holds that the proceedings locating the road were void, and that Mrs. Rose was the owner of the tract claimed by her and her husband. It necessarily follows, then, that the court below erred in dissolving the injunction, and that this court will reverse the decision of the court below, and perpetuate the injunction.
    
      Samuel P. Sparks for respondent.
    The assessment of damages to M. P. Fisher, who was the record and legal owner of the tract in possession of appellants, was not error. The statutes when they use the term, “owner,” refer to the record owner as well as the legal owner, without regard to the equities of those who may be in possession. State ex rel. Hunt Sack, 79 Mo. 661; Vance v. Corrigan, 78 Mo. 94; Smith v. Ferris, 6 Run, 553. The testimony shows that, since the institution of this suit, Mrs. Rose has accepted a deed to the premises from the record and legal owner, M. P. Fisher, thereby clearly recognizing that the legal title and ownership was in Fisher at the time of assessment of damages. B. F. Rose was in possession, but his wife claimed the equity. Had the damages been assessed to her it may have turned out that he would have asserted a claim of legal ownership, having been in possession the statutory period. It was a case of Scylla, on one side and Charybdis on the other, and serves to illustrate the reasonableness of our contention that the statute contemplates the record "owner” as the party to whom damages should be. assessed.
   Ray, J.

This case is an incident to, and grew out of, the case of Anderson v. Pemberton, 89 Mo. 61. The latter case was a proceeding, commenced in the county court of Johnson county, to establish a certain public road in that county. In the county court, an order was made to establish and open up said road, from which an appeal was taken to the circuit court, where a similar order and judgment was also rendered, from which an appeal was taken to this court, where the judgment was reversed, and said proceedings held to be null and void, in a well considered opinion by Sherwood, J. After the judgment of the court in said cause was rendered, and before the reversal thereof, by this court, the plaintiffs in this case (who, in right of the wife claimed to be the owner and in possession of a part of the land, over which said proposed road ran, and who had neither relinquished the right of way, nor been assessed, or paid damages therefor), commenced this proceeding, in the Johnson circuit court, to enjoin the defendant, who is district road overseer in said county, from proceeding to open up said road, and tear down plaintiffs’ fences, in conformity to the wrongful order of said court to that •effect, and thereby expose plaintiffs’ crops to destruction and otherwise inflict upon plaintiffs irreparable damage, for which they have no adequate remedy at law, unless so restrained by the order of said court to that effect.

Upon filing the petition, in the present case, a temporary injunction was granted, which, upon the final hearing, was, by the circuit court, dissolved, and the bill dismissed, from which the plaintiffs appealed to this court. As the judgment of the circuit court, establishing the road in question, has been reversed and said proceedings held to be null and void, by this court, in- the case of Anderson v. Pemberton, supra, it follows that the judgment of the circuit court in this case, dissolving the temporary injunction, and dismissing the bill, must now be held error, for the reason assigned in said opinion, and for that reason, and the reasons there assigned, said judgment, so dissolving' the temporary injunction, is hereby reversed, and said temporary injunction made perpetual,

in which all the judges concur.  