Opinion
No. 21798.
January 12, 1953.
APPEAL FROM THE CIRCUIT COURT, CLAY COUNTY, JAMES S. ROONEY, J.
Arthur R. Kincaid and Robert E. Colebered, Liberty, Lawson, Hale Coleberd, Liberty, of counsel, for appellants.
Wherritt Sevier, Alan F. Wherritt and Robert F. Sevier, Liberty, for respondents.
Plaintiffs (respondents) brought suit in equity to enjoin defendants from maintaining gates on an alleged public road which runs through and across defendants' farm to the contiguous resort property of the plaintiffs on the west. The court found the road in question to have been dedicated as a public road by the conduct of the defendants, declared the same to be a public road and enjoined the defendants from maintaining gates, or otherwise obstructing the use of the road by the plaintiffs and the public. The defendants have appealed to this court.
Our jurisdiction is not challenged by any of the parties, but it is our own duty to consider that essential prerequisite. The question presents itself to us as to whether title to real estate is here involved so as to vest jurisdiction of this appeal exclusively in the Supreme Court. Constitution of Missouri, 1945, Article V, Section 3, V.A.M.S.
Plaintiffs' amended petition describes the plaintiffs' land and the 160 acre farm of the defendants adjoining same on the east; alleges, in effect, that for more than 32 years just prior to this action, two certain roads in Clay County from the north and east converged and continued westward to defendants' farm property at or near the southeast portion thereof, where it entered defendants' property and extended northwesterly across the same, as described, to the defendants' west boundary, and there connecting with a north and south road which runs along the east boundary of defendants' contiguous lake resort property; that Cooley Lake is situated on the plaintiffs' said land and is operated privately as a resort for fishing, hunting and boating, and is enjoyed by the general public; that the road thereto, across the defendants' farm adjoining on the east, is well defined and has been used by the plaintiffs and their predecessors in title for more than 30 years as a means of ingress and egress by plaintiffs and the general public to and from the plaintiffs' property; that in recognition of the roadway in question across defendants' farm and of its use, defendants, some 15 years ago, fenced the road on each side thereof to show a well marked roadway across defendants' land; that plaintiffs have expended money for grading and placed rock on the road in question as it crosses defendants' land, and Clay County has graded and ditched parts of said road for a number of years; that prior to the acts herein complained of neither defendants nor their predecessors have ever attempted to interfere with the use of said road by plaintiffs or the general public to and from Cooley Lake.
The petition further alleges that defendants have by their conduct under the conditions described, intended to dedicate said road and by reason of such use of the road and the intent of the defendants far in excess of 10 years, "defendants have dedicated said road as a public road" and are estopped from denying plaintiffs and the general public the use thereof; that defendant Cameron Crabtree, son-in-law of the defendants, is a tenant now living on defendants' tract described; that on or about August 20, 1951, defendants placed two cumbersome gates across said roadway, where it crosses their farm, one of which is located at the west line of defendants' land, and another some 100 yards east thereof, which gates, though not locked, the defendants say they intend to lock, and thus permanently to close the roadway; that the gates interfere with the free passage of the plaintiffs and public over the roadway, and unless enjoined, the defendants will maintain and lock said gates, thus causing irreparable damage to the plaintiffs, and plaintiffs have no adequate remedy at law.
The prayer of the petition is that defendants, their agents and employees, be restrained and enjoined from interfering with the plaintiffs and public in the use of said road extending across the defendants' land, and that the court order defendants to remove said gates and obstructions from said strip of land so that the plaintiffs and all others desiring to have access to plaintiffs' contiguous land may use said strip as a roadway, and for such other orders as to the court may seem just and proper.
By their answer to the amended petition the defendants admit ownership of the land on which the road in question is alleged to exist; admit that defendant Crabtree is their tenant thereon; that they are informed that the plaintiffs own the property adjoining on the west, as described in the petition; admit that defendants have maintained a road on their own property for their own benefit for the past several years; deny that plaintiffs or Clay County have ever expended any money on any road on defendants' property, or contributed in any manner to repair or maintain the same; admit that defendants have from time to time suffered and permitted plaintiffs and plaintiffs' customers using the facilities of Cooley Lake to trespass over and across defendants' property; admit that defendants placed gates across the roadway located on their property, and that the same may reduce the hospitality heretofore accorded the plaintiffs and their customers; deny that they ever dedicated any road on their property to the public, or that any road thereon has become a public road, and deny each and every other allegation in plaintiffs petition contained.
By their reply the plaintiffs deny the defendants have maintained a roadway for their own benefit on their farm, but reaffirm that the roadway across the defendants' property, as described in the petition, has been used by plaintiffs and others as a public roadway, as alleged in the petition.
In its decree the court found the ownership of the tracts involved as pleaded; that the roadway described in the petition existed and had been used by the plaintiffs and the public for 25 years as a public road with the knowledge and acquiescence of the defendants in such a manner as to imply on their part a dedication of said roadway and an acceptance and use thereof by the plaintiffs and public as a public highway; declared the roadway to be a public road; found that defendants had placed gates so as to obstruct and interfere with the free passage of the plaintiffs and the public over said road, and that inasmuch as said road was at the time a public highway, the defendants had no right so to interfere with such use by the plaintiffs and public and therefore ordered and decreed that the defendants, their agents and employees, be enjoined from obstructing or interfering with the use of said road by the plaintiffs or the public, describing the road by metes and bounds.
The rights that arise from the establishment of a public highway constitute a public easement to travel the same throughout its whole surface and by any method of travel which is reasonable and proper in the use of public roads not prohibited by law or dedicatory restrictions and available equally to all persons, consonant with the safety and convenience of each other. 25 Am.Jur. pp. 458, 460, Sections 164-166. When a road has been established by prescription to be a public highway, the public cannot be divested of its easement over the same except by vacation or abandonment as provided by law. 39 C.J.S., Highways, § 19, page 937. A completed common law dedication by equitable estoppel is irrevocable. Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d 650.
Whether or not the pleadings in a case such as this disclose that title to real estate is involved in a constitutional sense, a judgment in such a case determining title and responsive to the pleadings is sufficient to classify the proceeding as one involving title in the constitutional sense respecting appellate jurisdiction. The pleadings may be consulted to ascertain the effect of the judgment, — whether or not it is directly "to take title from one and give it to another". If the judgment does not so determine title, but the judgment sought by the pleadings would directly affect title, then title is directly in issue. Nettleton Bank v. Estate of McGauhey, 318 Mo. 948, 954, 2 S.W.2d 771, 773. We think it proper here to consider both the pleadings and the judgment on this question of appellate jurisdiction. Hilton v. City of St. Louis, 129 Mo. 389, 391, 31 S.W. 771, 772.
Let us first consider the pleadings. We are fully aware that the petition does not in precise words pray for a determination of the rights of the parties in the strip of land in question, nor for a quieting of the title thereto, but prays for an injunction against interference by the defendants with the use of the roadway by plaintiffs and the public, and for an order for the removal of the gates and obstructions complained of. However, the plaintiffs in their petition base their right to such relief upon their averment that defendants Edwards previously by their conduct and by equitable estoppel, had dedicated the strip of land across their farm as a public road for the use of the plaintiffs and the general public, and that the roadway had thus become and is a public highway. This issue was specifically denied by the defendants' answer. It was the basic issue in the case and to which nearly all of the immense record of the proceedings is devoted. In response to an inquiry by the trial court at the outset of the trial, the plaintiffs' counsel stated: "As I understand it, Judge, the whole controversy in this case is whether or not by the actions of the defendants they have intended to dedicate this as a public roadway. That, I think, is the sole question in this case". Plaintiffs thereupon called some 37 witnesses to testify on that issue, and most of defendants' evidence was on that issue. All of the points made on this appeal by defendants have to do with the law and sufficiency of the evidence to establish the disputed status of the roadway on defendants' farm as a public highway. A determination of that issue in plaintiffs' favor would not be merely personal to the plaintiffs, but one which would run with the title to the land and would inure permanently to the general public, binding the defendants and their successors in title, and continuing for the benefit of the plaintiffs' successors in title and to all persons in the future desiring to avail themselves of the road as a public highway.
Considering next the decree rendered in this case, it is true, as pointed out in the Nettleton Bank case, supra, that, to involve title to real estate in the jurisdictional sense, it is not enough that the judgment, when executed, would merely affect the title to land, but that the title must be involved in the suit itself and be a matter about which there is a contest; that the judgment must be such as to adjudicate a title controversy and which will destroy or affect title in some measure or degree adversely to one litigant and in favor of another; that pure suits for injunction or other relief only in personam or for monetary relief do not so involve title.
The decree in this case, disposing of the issues in controversy, declared the roadway on defendants' farm as a public highway. It fixed the permanent rights of the plaintiffs and general public to the free use and passage thereover as a public road, with all the attributes that attend the status of a public highway. The defendants' exclusive right to the use of and control over the road across their farm asserted by them is reduced by the decree to no more than the right of any other traveler over that road, save for the mere right of an abutting owner. The decree enjoined the defendants from the erection of gates or other obstructions on the same within the boundaries of their farm. Such judgment certainly, it seems to us, determines title "in some measure or degree" [318 Mo. 948, 2 S.W.2d 776] adversely to the defendants and in favor of others. Nettleton Bank v. Estate of McGauhey, supra. As we have said above respecting the pleadings and the judgment sought, the judgment as rendered is not one in personam nor purely for injunctive purposes. The controverted issue of the status of the roadway on defendants' farm as a public roadway would not be merely collateral or incidental to the relief prayed for.
In Oliver v. Wilhite, 329 Mo. 524, 45 S.W.2d 1083, the plaintiff claimed the right to use a strip of land between the residence property of the plaintiff and that of the defendant as a passageway to the defendant's garage by reason of an alleged oral agreement between the parties permitting such use, and pleaded that defendant, in violation of such agreement, had erected a wire fence which prevented the plaintiff's use of the strip, and after plaintiff had expended large sums of money on his garage, relying on such agreement. This court transferred the cause to the Supreme Court on the ground that title to real estate was involved and jurisdiction was vested solely in the Supreme Court. That Court held otherwise and returned the cause to this court. In its opinion it is said that while it was necessary for the trial court to inquire into the validity of the plaintiff's claim for an easement to grant the relief prayed, that such inquiry was purely incidental or collateral, but the court pointed out, 329 Mo. at page 527, 45 S.W.2d at page 1084: "The judgment sought in the petition, and the one actually rendered and appealed from, operates in personam, and does not run with the land. The title to real estate is not therefore involved in such sense as to give this court jurisdiction of the appeal".
In Chapman v. Schearf, Mo.App., 220 S.W.2d 757, a suit was brought to determine the existence of a public road over defendants' land and injunction sought to prevent defendants' interference with the plaintiffs' use of it. The petition pleaded long use of the road by the plaintiffs and the general public and for more than ten consecutive years, and pleaded open, notorious, adverse use and occupation of the same by the plaintiffs and public over the same as a means of ingress and egress, with the notice and knowledge of the defendants, and that defendants had recently obstructed the roadway. The petition prayed that the title to the road be quieted and that the rights of the parties therein be determined and for permanent injunction. Among other things the answer of the defendants denied that the servitude of the road was such as to establish a public highway. The trial court found that an easement had been created by prescription over the road and in favor of the public generally, and granted the injunctive relief prayed. The court considered whether or not title to the real estate was involved and whether or not that issue was merely collateral or incidental to the injunctive feature of the case. While the St. Louis Court of Appeals pointed out that the petition specifically asked for a quieting of title and an adjudication of the rights of the parties respecting the roadway, yet the court said, 220 S.W.2d loc. cit. 759: "Whether the road was a public road, or whether it was at most but a private road with plaintiffs' right to use it merely prescriptive, was the basic thing in controversy. Furthermore, not only did plaintiffs specifically pray that title to the road be quieted and that their own right and the rights of defendants be determined, but the court in fact found that the right to use the road was one inhering in the public generally by prescription, subject, however, to what the court held to be the prescriptive right which defendants had acquired to maintain gates across it. In such respect it would appear that the determination of the status of the road was a matter directly in issue, and not merely incidental or collateral to the question of injunctive relief".
In the last mentioned case, when determined by the Supreme Court upon transfer, 360 Mo. 551, 229 S.W.2d 552, 553, the court said: "Since plaintiffs prayed for the relief of a decree determining the rights of plaintiffs and defendants and for the quieting of title, and since the decree does establish the right of an easement in the public use, the relief sought does raise a `title issue' and the relief granted does directly operate upon defendants' title `in some measure or degree.' We agree with the St. Louis Court of Appeals that title to real estate is involved."
We believe the ruling of the Supreme Court in that case that since the judgment actually rendered established a public easement over the defendants' roadway, it thereby involved the title to real estate, was not dependent upon the plea in the petition that title be quieted and the rights of the plaintiffs be determined. In Wallach v. Stetina, Mo.Sup., 20 S.W.2d 663, the court held that if the judgment rendered established an easement over defendants' land in the public's favor, appellate jurisdiction was vested solely in the Supreme Court. See, also, State ex rel. Greisinger v. Cox, Mo.Sup., 292 S.W. 75. It was said by the Supreme Court in the recent case of Zinser v. Lucks, 361 Mo. 671, 235 S.W.2d 844, 847: "The subject matter on appeal in this case is the establishment of an easement by prescription. An easement implies an interest in land which places the jurisdiction in the Supreme Court. Wood v. Gregory, Mo. Sup., 155 S.W.2d 168, 171, 138 A.L.R. 142". In that case the action was one in ejectment for possession of a portion of land claimed by plaintiffs upon which defendants had erected and maintained signboards over ten years, and the answer pleaded an easement by prescription and sought injunction against interference with defendants' continued use thereof. The trial court found that the defendants had a right by prescription to use the land for the signboards and granted an injunction. The quoted part of the Supreme Court's decision on the matter of jurisdiction goes further than the other authorities we have cited herein wherein the easement claimed and decreed was public in nature, permanent in duration and ran with the title to the land.
Considering the judgment sought and the main issue in dispute, together with the decree actually rendered, namely, that the defendants' unconditional proprietary rights claimed by them over and upon the roadway on their farm be declared no longer to exist and that a perpetual easement to the general public has been established by prescription for use of the road as a public highway, and applying the law which we deem applicable, it is our conclusion that title to real estate is here involved in the constitutional sense, and that the appellate jurisdiction of this action is vested solely in the Supreme Court of Missouri. If there be any doubt as to the correctness of such conclusion, it should be resolved against our own jurisdiction. Chapman v. Schearf, supra, Mo.App., 220 S.W.2d 759. The cause is transferred to the Supreme Court of Missouri.
All concur.