Opinion
No. 6892.
July 15, 1950.
APPEAL FROM THE CIRCUIT COURT, BARRY COUNTY, THOMAS A. JOHNSON, J.
John O. Sanders, Cassville, for appellants.
Royle Ellis, Cassville, for respondent.
This is an action to establish a private road, brought under Section 8488, Laws of Missouri, 1947, Vol. II, page 345, Mo.R.S. A. § 8488. The cause was filed February 17, 1949, in the Circuit Court of Barry County, Missouri, where it was tried on March 31, 1949, and judgment rendered for plaintiff as prayed for in the petition. From this judgment defendants appealed to the Supreme Court and the cause was, by that court, transferred to the Springfield Court of Appeals.
Plaintiff's petition states that she is the owner of 40 acres of land, being NW 1/4 of NE 1/4 of Sec. 20, Twp. 23, R. 26; that no public road passes through or alongside said land and asks for the establishment of a private roadway 30 feet wide to connect her premises with a public road.
The petition asks that said private road be established across the lands of defendants, described as the SW 1/4 SE 1/4 Sec. 17, Twp. 23, R. 26, and then describes the location of said road.
Defendant's answer denies that plaintiff owns the 40 acres of land described in her petition; denies that the private road sought is a way of strict necessity and then the answer states that plaintiff has one or more other ways for an outlet from said land.
The only question to be decided in this case is whether or not plaintiff is entitled to the road sought as a way of strict necessity as required under the statute.
We will refer to respondent in this case as plaintiff and to appellants as defendants.
We here state such parts of the evidence as we deem necessary to the decision of the issue involved.
The plaintiff owned the 40 acres of land described in her petition. This is admitted by the defendants.
The evidence is undisputed that no public road passes through or alongside plaintiff's tract of land.
The evidence shows that defendants' 40 acres of land adjoins plaintiff's 40 acres of land on the north and that the road plaintiff seeks to establish runs from the north line of plaintiff's 40 acres to the public road across defendants' 40 acres of land, a distance of about 600 feet. The evidence shows that the private road sought to be established by plaintiff, across defendants' land, follows an old road, which had been used for many years by plaintiff to reach the public road and said old road goes from plaintiff's land down a branch and on rocky ground, which is practically level.
Plaintiff testified that this old road across defendants' land from the public road to where her buildings are located on her land had been there for 43 years prior to the time that defendants closed the road.
Defendants testified that in February, 1948, they served notice on Bill Madison to keep off their property and to quit using the old road. On November 26th, 1948, Mr. Sheets testified that he posted a notice on this old road, by advice of attorney, for plaintiff to keep off said property. He admits that he put up a barricade across the north end of the old road, being the road over which plaintiff now seeks to establish the private road and the road she had used to reach the public road for many years from her property.
The evidence further shows that defendant placed logs and other obstructions across this old road, which had been used for many years by plaintiff to reach the public road, to prevent it being further used by plaintiff or her tenant.
Now the evidence shows that Bill Madison, son of plaintiff, owned 40 acres of land adjoining plaintiff's 40 acres on the east; that a public road crossed the corner of the Bill Madison forty.
Now the evidence further shows that plaintiff had no legal road or easement for a road to any public road at the time of the filing of this suit.
To show a want of strict necessity, defendants suggested three other possible ways by which plaintiff might have ingress or egress to the public road from her land. One of the ways suggested by defendants was through the Bill Madison 40 acres of land to the public road that crossed his forty. Defendant Sheets testified that it was 60 feet from where the road sought by plaintiff enters his land to the west line of Bill Madison's land. Mr. Sheets testified that the public road could be reached across Bill Madison's 40 acres in about 300 feet and he would be willing to give one-half of the right-of-way along that road Defendant Sheets states there would be a slight grade if the road were constructed over Bill Madison's forty equal to that on the county road on the Mineral Springs road. But the testimony clearly shows that the distance would be much further constructing a private road over the Bill Madison 40 acres because of the deep valleys and bluffs that would have to be crossed in constructing said road. The testimony shows that a bridge would have to be constructed in order to cross the deep valley on this proposed road, which would possibly cost $1000.00 or more, and that said roadway would be very impracticable.
Defendants suggest two other roadways, one way was the road across lands owned by Beeson and Mitchell. The evidence shows that these landowners have been permitting plaintiff to reach the public highway across their lands until they can get a road established. There is no open road there, only a trail through the fields of lands owned by said Mitchell and Beeson.
When Bill Madison was asked about the distance that he would travel if he should secure roadway across Beeson and Mitchell's land he gave this answer: "A. I know that it is farther way around through Beeson's and Mitchell's than through Sheets, and I know those hills is so steep in there there ain't no outlet; that is my only way."
The testimony is practically admitted that, to establish a road across the Beeson and Mitchell land, the distance would be across several 40 acres of land and so rough and rugged that it would be almost impossible to so establish a private road.
The same evidence as to roughness and impracticability in establishing a private road was shown as to the other possible ways suggested by the defendants.
The evidence shows that when the defendants closed the road, used by plaintiff to reach the public road from her land, Bill Madison, her son, went to Mr. Beeson and Mitchell and got permission to cross their lands to the public road until they could secure a legal road. Bill Madison testified this permission was only to last until July 1st.
Now the evidence on the part of the defendants, is that the place where plaintiff seeks to establish the private road, is down a small valley, across his 40 acres of land; that in this country there is not much level land. Defendants testify that the proposed road will cross a spring branch and they have a sawmill in this valley, which the road will interfere with. Mr. Sheets, in his testimony, admits the three suggested ways purported by him as ways to reach the public road by plaintiff, were ways which would have to cross over rough and hilly country but he contends that a way could be constructed.
The appellate court shall review the case upon both the law and the evidence. The judgment shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. A. A. Electric Machinery Co. v. Block, Mo.App., 193 S.W.2d 631, 635.
This action, to establish a private road, was brought under Section 8488, Laws of Missouri, 1947, Vol. II, page 345, Mo.R.S.A. § 8488. We find against plaintiff in her contention that the judgment in this case was not final. The trial court found for the plaintiff and, in its judgment, established the private road. We hold that such judgment was final and could be appealed from.
The real question involved in the case is the sufficiency of the evidence to sustain the judgment of the trial court in finding that the private road was one of strict necessity.
Defendants admit plaintiff was the owner of the 40 acres of land described in her petition. The evidence is undisputed that no public road passes alongside or through her land. There is no dispute that defendants own the 40 acres of land adjoining plaintiff's land on the north over which plaintiff seeks to establish a private road because of strict necessity, connecting her lands with a public road.
Now the evidence is undisputed that for 43 years there had been a road used by this plaintiff and others across defendants' land at the very location where plaintiff now seeks to establish the private road. The evidence shows that defendants purchased the land over which plaintiff seeks this private road in 1940. Defendants state the road, at that time, was not used as a public road and that gates had been placed across it. The evidence also shows that defendants had given plaintiff and plaintiff's tenant permission to cross over this old road to the public road and they had done so up until 1948, when defendants placed logs and obstructions across the road and forbade the further use by plaintiff of the old road to reach the public road from her land. It was then that plaintiff, through her tenant, secured a temporary right to go over the lands of Beeson and Mitchell until the first of July.
The testimony is unquestionably convincing that the private roads, suggested by the defendants, other than the one sought in plaintiff's petition, were ways that plaintiff had no legal right to use. She had no easement or legal way from her land to any public road. If these ways, or any of them, should be used by plaintiff, she would have to condemn or secure a right-of-way from others. The evidence is almost conclusive in this case that the suggested right-of-ways of the defendants are impracticable because they extend over country so rough and rugged that it would be almost impossible to construct a road and the cost of doing so would be prohibitive.
In order to show a lack of strict necessity, the defense refers to Cox v. Tipton, 18 Mo.App. 450. The law is stated thus:
"The fact that the way is one of necessity, that is, strict necessity, and not mere convenience, is a jurisdictional fact, and must be alleged and proved, affirmatively."
In Richter v. Rodgers, 327 Mo. 543, 37 S.W.2d 523, 528, the Supreme Court, commenting upon the decision in Cox v. Tipton, supra, quoted the above quotation and then said: "But the court also said: `From all the authorities referred to, it is clear that when a way is claimed of necessity, it is a good answer to show another way which the party may use.' And, further, that `a way, as here meant, is a legal way, to use which one has a legal right, which may be enforced and which may not be rightfully interfered with.' The court there held no more than if it be shown that the plaintiff already has a road open and in use over which he has acquired an enforceable easement then he is not in a condition to demand a way of necessity."
Certainly, if that is what the court held, and we believe it is, Cox v. Tipton, supra, is no authority to reverse this case.
From the admitted facts in the case at bar, plaintiff has no way of ingress or egress to a public road from her premises, which is a legal right.
In Richter v. Rodgers, supra, 37 S.W.2d loc. cit. 527, the court said: "Nor does defendants' answer deny that the proposed road is a way of necessity, but rather that it is not the only or exclusive way of necessity available to plaintiff, in that there is another or other `ways of necessity' available to plaintiff by another route and connected with a different public road and over other persons' lands, just as or more convenient and less expensive, and causing less damages (to defendants at least), than the one asked for. It is not necessary for us to decide to what extent this defense may be considered by the county court in establishing a private way of necessity. The necessity exists, but, as to the method of relieving the necessity, some discretion might well be exercised by the county court, but that would not be jurisdictional. The statute, Section 10638, R.S. 1919, provides that the petition shall so designate the road as to connect the plaintiff's land with a public road `at some convenient point,' and shall `describe the place where said road is desired, and the width desired.'"
The court stated in that opinion, "* * * but as to forcing on the plaintiff an entirely different outlet than he has selected and asked for, though giving him a way of necessity, is doubtful at least."
In Welch v. Shipman, 357 Mo. 838, 210 S.W.2d 1008, 1011, the court states the following rule of law: "In order for one to obtain a private way over the lands of another the way must be `a way of necessity', and such must be alleged and must be established by the evidence. * * * Proceedings to acquire a private way over the lands of another are in invitum, against the common law and against the common rights and must be strictly construed. Colville v. Judy, supra, [73 Mo. 651]. If some other way of ingress and egress different from the way sought is suggested, as in the present case, the suggested way must be reasonably convenient and reasonably practical. Reading v. Chandler, 269 Mo. 589, 192 S.W. 94."
In the case at bar the testimony is clear and convincing that the ways of ingress and egress suggested by defendants other than that claimed by plaintiff were not reasonably convenient and reasonably practical; that the trial court was justified in so finding and his judgment should be sustained.
In Welch v. Shipman, supra, the court states the following rule: "Is there a practical and reasonably convenient way for plaintiff to have ingress and egress as to his land other than by the old road or by the way decided upon by the commissioners and approved by the county court? Or to state the proposition otherwise, Is the way fixed by the commissioners and approved by the county court a way of necessity? The term `way of necessity' does not mean a way of convenience, but a way of strict necessity. Cox v. Tipton, supra. It is stated in the Cox case `that when a way is claimed of necessity, it is a good answer to show another way which the party may use.' Also, in determining the question of the necessity of a private road, it is proper to consider not only the convenience and benefit it will be to the limited number who will use it, but the injury and inconvenience it will occasion the owner over whose land the private road will pass."
While it is the duty of the appellate court to review the case upon both the law and the evidence, the trial court's judgment should not be set aside unless clearly erroneous, and due regard should be given to the opportunity of the trial court to judge of the credibility of the witnesses.
In this case there is no doubt that the necessity existed because of plaintiff having no legal way of ingress or egress to a public road. Where some other way of ingress and egress different from the ways sought is suggested, as in this case, the suggested way must be a reasonably convenient and reasonably practical way, Reading v. Chandler et al., supra.
The evidence as to the practicability of the other ways suggested in defendants' answer is at least conflicting and the trial court's judgment, in weighing this evidence, should not be disturbed.
Judgment affirmed.
VANDEVENTER, P. J., concurs.
BLAIR, J., dissents in separate opinion.
There is no question about this action being sought to be brought under the Laws of Missouri for 1947, Vol. II, page 345, repealing and reenacting Section 8488, of the Revised Statutes of Missouri for the year 1939, Mo.R.S.A. § 8488. Also, I agree fully with the majority opinion in its ruling that the judgment below was final and capable of being appealed from; but I cannot agree with the majority opinion that the judgment of the Circuit Court should be affirmed. I dissent from the conclusion, as I think the opinion of the majority and of the trial court emasculates the statute under which respondent attempted to proceed.
In the first place, an examination of the pleadings, set out in the transcript, shows that respondent there stated her ownership of the Northwest Quarter (NW 1/4) of the Northeast Quarter (NE 1/4) and appellants' ownership of the Southwest Quarter (SW 1/4) of the Southeast Quarter (SE 1/4) in an adjoining section of land, and that a roadway over appellants' land was a way of "strict necessity," and prayed for the establishment of a private roadway for respondent, over the land of appellants.
In their answer, appellants alleged: "On the other hand, defendants state that plaintiff has one or more other ways than that petitioned for to the said land alleged to be owned by her for an outlet from said land."
Nowhere in her petition did respondent state that she had no roadway to a public road, other than over appellants' land. Respondent filed no reply and the transcript does not show that she ever disputed, in the pleadings, appellants' allegation, in their answer, that she had one or more ways out of her land, other than over appellants' land.
The nearest respondent came to proving that she had no roadway, other than over appellants' land, was developed in cross-examination, when she said:
"A. Well, coming down through Mr. Sheets' there is the closest outlet. * * *
"A. I know that is a farther way around through Beeson's and Mitchell's than through Sheets', and I know those hills is so steep in there there ain't no outlet; that is my only way."
And she did not allege that she had no other outlet.
The evidence of respondent's son, Bill Madison, on cross-examination, shows that a way over the forty-acre tract, just east of the forty-acre tract pleaded to have been owned by respondent, could have been had by building a new road over the Northeast corner thereof, and possibly by the construction of a bridge to connect with the same public roadway which respondent seeks to reach over appellants' land. This witness, Bill Madison, was a son of plaintiff and apparently was interested in the result, about as much as respondent herself.
The construction of such a road, and a possible bridge, would have cost respondent some money; but the cost to her and the inconvenience of such a road do not amount to strict necessity, in my opinion.
It was not up to appellants to prove that such suggested ways were available to respondent. It was essential that respondent should allege and prove that such suggested ways were not available to her, and she should make such proof before appellants' land could be burdened with her private roadway.
The Supreme Court and the Kansas City Court of Appeals have not been as explicit, as they should be, as to what the words "strict necessity" mean, and it is time that the meaning of those words be authoritatively defined by the Supreme Court.
In Ells v. Pacific R. R., 51 Mo. 200, loc. cit. 204, Judge Sherwood, of the Supreme Court, said: "* * * the evidence would not have been of a character so clear and forcible, and in its nature so positive and definite as to warrant a court of equity in affording relief." That was a condemnation suit, and not a suit for a private road, as here.
What Judge Sherwood said, as above quoted, may not have been strictly necessary to the decision of the case then before the court; but it showed what the court thought about what is required, when the lands of anyone are sought to be subjected to the alleged needs of another.
In Colville v. Judy, 73 Mo. 651, Judge Sherwood, after quoting the provisions of Section 20, Article II, of the (then) present Constitution, said: "Section 20 of article 2 of our present constitution, declares: `That no private property can be taken for private use with or without compensation, unless by the consent of the owner, except for private ways of necessity * * * in such manner as may be prescribed by law.' This proceeding was not begun until 1877. Consequently this constitutional provision must control. This being the case, the petition must be held fatally defective, in that it does not set forth that the road sought to be opened over Judy's land, was a `way of necessity.' This is not shown, either directly or by necessary implication. But under the constitution, the wisdom of whose farmers is nowhere so conspicuously displayed as in the careful manner in which they have sedulously guarded private property and the rights incident thereto against ruthless invasion, and virtual confiscation under the thin disguise of legal process, it is a sine qua non to opening a private road over the land of another; it is a jurisdictional fact which must affirmatively appear — that such road is a `way of necessity.' These proceedings, in invitum, against common law and common right, have always been strictly construed, and this court has spoken but one language concerning them. Ells v. Pacific R. R. Co., 51 Mo. 200, and cases cited; Jefferson Co. v. Cowan, 54 Mo. 234; Kansas City, St. Jo. C. B. R. R. Co. v. Campbell, 62 Mo. 585."
Again, in Welch v. Shipman, 357 Mo. 838, 210 S.W.2d 1008, Division One of the Supreme Court, speaking through Commissioner Bradley, said: "In order for one to obtain a private way over the lands of another the way must be `a way of necessity', and such must be alleged and must be established by the evidence."
In Cox v. Tipton, 18 Mo.App. 450, Judge Hall, of the Kansas City Court of Appeals, said: "The fact that the way is one of necessity, that is, strict necessity, and not mere convenience, is a jurisdictional fact, and must be alleged and proved, affirmatively."
So, both the Supreme Court and the Kansas City Court of Appeals have held that, when one seeks a private roadway over the lands of another, it is required that the one seeking such private roadway must not only allege that the way thus sought is one of "strict necessity," but must also prove such necessity as a fact.
As the Supreme Court and the Kansas City Court of Appeals have both so held, I am convinced that, in holding that respondent was only required to show that the suggested roadways were impractical or too costly, the opinion of the majority is in conflict with the opinions of the Supreme Court and the Kansas City Court of Appeals, as above cited.
I not only dissent from the opinion of the majority in affirming the judgment below, but feel that I am fully justified in certifying the case to the Supreme Court of the State of Missouri for its opinion.
I therefore direct the Clerk of this Court to transfer this dissenting opinion, the opinion of the majority of this Court, the briefs filed and the files of the Circuit Court of Barry County, Missouri, to the Supreme Court of Missouri, for such action as that Court may be advised to take, and to make such transfer under the authority of Article V, Section 10, of the 1945 Constitution of Missouri, Mo.R.S.A.