Opinion
No. 6909.
April 6, 1950.
APPEAL FROM THE CIRCUIT COURT, LACLEDE COUNTY, CLAUDE E. CURTIS, J.
J. W. Grossenheider, Lebanon, for appellant.
Bradshaw Fields, Lebanon, Jean Paul Bradshaw, Lebanon, Robert C. Fields, Lebanon, John F. Low, Lebanon, for respondent.
Plaintiff (appellant here) sought an injunction against defendant (respondent) to prevent him from obstructing a certain road over defendant's premises, which plaintiff claims he, and his predecessors, have used "openly, notoriously and adversely to the owners of the land now owned by defendant and under claim of right for a period greatly exceeding ten years." It is further claimed that this road is plaintiff's only means of ingress and egress to and from his land. After asserting that plaintiff's land joins the north boundary of defendant's, the right of way claimed is described as running "through defendant's said land commencing at the northeast corner of defendant's said land where said land of the defendant joins the plaintiff's said land and said road meanders in a southwesterly direction through the defendant's lower forty continuing through defendant's upper forty acre tract turning in a westerly direction approximately 200 feet south of defendant's pond and leaving defendant's land approximately 200 feet south of said pond and approximately 400 feet north of the house of defendant on the west boundary of the upper forty acre tract of the said land of the defendant."
The prayer asks for a temporary injunction, to be made permanent upon final hearing. A bond was given and temporary injunction issued.
The answer denied specifically each paragraph of the petition. Upon final hearing the court dissolved the temporary injunction and judgment was entered for the defendant. From that judgment, this appeal was taken.
The evidence on the part of the plaintiff showed that he lived on 40 acres of land adjoining the defendant on the north, that he, and those under whom he claims, had been using a certain road that entered defendant's north forty near the northeast corner and crossed it in a circuitous and meandering manner, finally entering the 40 acres of land adjoining it on the south and making its exit on what is designated as Highway 32. There was evidence that this was the plaintiff's only means of ingress and egress to and from his home to the highway and there was further evidence that it had been used by plaintiff and his predecessors in title for a considerable period more than ten years.
On the other hand the defendant's testimony showed that it had not been used continuously, openly and notoriously for a period of ten years prior to the filing of this suit, that there had been and were other means of ingress and egress to and from plaintiff's land and that the road attempted to be described in plaintiff's petition and evidence was not in fact a plain and well used road but was more like a trail that meandered across plaintiff's pasture land, that it had not been continuously followed in its present location, but that through the years its route had been changed because of mud holes, because of falling trees, etc. The court heard this highly conflicting evidence and rendered a general judgment against plaintiff without specifying the grounds upon which it was based.
This being an equity case, it is the duty of this court to hear it de novo and render such decree as it thinks from the record should have been rendered by the Chancellor. In this connection, however, where the evidence is hopelessly conflicting and where the trial court had a much better opportunity of ascertaining the facts, considerable deference will be given to its decision for that very reason. See 3 Mo. Lifetime Digest, Appeal and Error, 987(3), and 990 for numerous cases.
The plaintiff did not introduce a plat of the land but introduced in evidence eight aerial photographs allegedly showing the two farms in question. These photographs are four inches long and slightly less than 2 1/2 inches wide but there is nothing on them to show from what direction they were taken and no markings on any of them which clearly indicates the position of the two farms and the position of the road. On Exhibit D, one of the photographs, the plaintiff, in testifying, made a cross indicating one end of the road in question and on each of them is a meandering white line which we assume is the road in controversy. These photographs were presented to witnesses in the presence of the court and there was testimony relating to them but that testimony means very little when read in a cold record. For instance, in testifying about Exhibit A, the witness said:
"A. I can see the pond right here, it shows up in the picture. Right here is where it is starting down from my place, right down in here on below this.
* * * * * *
"Q. Now, let's start out with Plaintiff's Exhibit `A'. Is that what you referred to when you said this was Highway 32 and right down here was the road? A. Yes, you can see it right down here; here is the pond right down there."
In relation to Exhibit B, the witness testified:
"A. Right here is where I live, right about there you can see the top of my house, and follow that road right, right at the corner of his place and right on around you can see right here where that pond is again, comes on down to `32' right out to `32' highway."
In relation to Exhibit C, he further said:
"A. Well, you can see the field again here. You see here the field goes up clear up here to the corner and along in here is the other corner where it goes in."
In relation to Exhibit D, we find this:
"A. Herman Detherage, that is Mr. Linstrom's brother-in-law. Here and right here is where the pond is, goes right around the pond and comes on down, that is my field right there."
As to Exhibit E, he states:
"Q. Now, is this correct: is this other road here at the end of this clearing in Plaintiff's Exhibit E where this road runs from the clearing on up past the pond to this other road which is running down from Highway 32, is that the road that you have referred to in your petition? A. That is the road right there."
As to Exhibit F there is no testimony and as to Exhibit G, he states:
"A. You can see Herman's right about there is Herman's house and right around through here is where the pond is and on through there."
We then find:
"Q. All right, now, let's look at plaintiff's Exhibit `H'. Do you find it there? A. This right in here is where you can see the top of the pond.
"Q. You identify the beginning of the road by the pond in these photographs, then, which shows up from the air? A. That's right."
Exhibits I and J were not introduced and as "K" we find:
"Q. Plaintiff's Exhibit `K' now? A. It shows the picture all the way down, even shows his house right here.
"Q. Whose house? A. Herb Linstrom's.
"Q. All right."
This testimony might have been enlightening to the trial court where the witness was pointing out the various places as "here", "there" and "this" but it is not informative to this court. Plaintiff further introduced an aerial photograph of the entire section taken in 1939 which was exhibited to the court and described in much the same fashion as the other exhibits. However, from this exhibit and the testimony relating to it we get very little information.
While the defendant's witnesses were testifying, a plat of the defendant's land over which the alleged road ran was exhibited, but this plat was not introduced in evidence and we do not have the advantage of consulting it in light of the evidence. Some of the testimony relating to the plat was:
"Q. Now, looking at this plat, if this if Highway 32 and this is the section line, does that fairly represent it? A. That's right.
"Q. If this is the section line running through here, and if this is the place where Mr. Linstrom lives, Mr. Beery is up here, when you lived on that place how did you come out? A. Well, now, there was two roads out of there when I lived there, there was a road coming out on the section line —
"Q. And the Section line, now, tell us where the section line was? A. Well, the section line runs straight through by Herb Linstrom's place right on down by Herman Detherage's and right here goes the line, to my knowing, runs to the section line. * * *
"Q. Where was it crossed, if at all? A. All right, it come up, the old road come up from right here, right along about here and run up this way out of a big holler that comes right down through here.
"Q. But there wasn't any travel here across this forty? A. There wasn't no travel through there until we set a sawmill road in here, I made a road through there myself hauling logs."
On cross examination of one of defendant's witnesses, we find the following:
"Q. Now, I want to show you this plat here too. Assuming this is Herb Linstrom's house here, assuming this is the top, this is the upper forty and this is the lower forty acre tract that Linstrom owns, that this is the corner here where Dave Uder and Berry and Linstrom all join; are you familiar with that corner down there? A. Yes, sir.
"Q. There is a gate down there, isn't there? A. Yes, sir.
"Q. Isn't there a road that comes through that gate and cuts across down here as shown in this plat? A. There is now."
The necessity of the due deference rule is clearly exemplified in this case. Not only did the trial court see the witnesses and observe their actions and demeanor as they testified, but he heard the testimony, had the advantage of having a plat and photographs before him on which doubtless the witnesses pointed out the places meant by "this", "here" and "there."
The appellant draws the conclusion from the adverse finding of the trial court that it was based either upon the indefinite description of the road in the petition and the evidence or upon the testimony which indicated that the road had not been in substantially the same location for the prescriptive period. But in reviewing the case de novo, we cannot restrict the court to these two matters because in its judgment, it did not so restrict itself. See Bank of Brimson v. Graham et al., 335 Mo. 1196, 76 S.W.2d 376, 96 A.L.R. 399. The court could have found that the road was too indefinitely described in the petition and in the evidence. It could have found that for ten years it had not followed substantially the same route and it could have found also that it had not been used openly, notoriously and adversely for the prescriptive period of ten years. On each of these questions, he was in so much better position to understand the testimony than this court is that we must give due deference to his judgment. For that reason, the judgment of the trial court is affirmed. It is so ordered.
BLAIR and McDOWELL, JJ., concur.