Opinion
No. 7061.
December 3, 1952.
APPEAL FROM THE CIRCUIT COURT, LACLEDE COUNTY, CLAUDE E. CURTIS, J.
Jean Paul Bradshaw, Springfield, Fields Low, Lebanon, for appellant.
Donnelly Donnelly, Robert T. Donnelly and Phil M. Donnelly, Lebanon, for respondent.
From a decree granting a permanent injunction restraining defendant from placing a fence across a road, he has appealed.
This is an equitable proceeding, and is heard de novo in this court and we render such decree as we think should have been rendered by the chancellor, at the same time, according due deference to the advantage he had in being able to hear and observe the witnesses as they testified. Howell v. Reynolds, Mo.Sup., 249 S.W.2d 381. Milgram v. Jiffy Equipment Co., Mo. Sup., 247 S.W.2d 668. Marshall v. Callahan, Mo.App., 229 S.W.2d 730.
The original petition was filed April 28, 1949. The first amended petition, upon which the case was tried, was filed May 21, 1949, and a trial was had beginning February 17, 1950. At the conclusion of the trial, the court took the case under advisement and on the 7th day of May, 1951, made its findings of facts, conclusions of law and entered its decree.
Briefly, the petition states that the plaintiffs live on the south half of the S.W. 1/4 of Section 29, Township 36, Range 14 in Laclede County. That they are engaged in farming, dairying, etc., that there is a roadway from the west side of their premises in a northwesterly direction of approximately 300 yards in length; that said roadway "is the only means of travel from their said premises to said county public road" and that they travel this roadway in marketing their products, etc., "that there is no other roadway leading in any direction" from their premises.
It is further alleged that defendant owns the forty acres directly west of them and through which said road runs; that it has been continually and adversely used for 65 years "by the traveling public with the knowledge of defendant and his predecessors in title; that public money and labor has been expended on said roadway for a number of years; * * *." That the defendant on April 19, 1949, placed posts and wire across this road within a few yards of plaintiffs' premises, closing the roadway and preventing the plaintiffs "from using said roadway as a means of ingress and egress" to and from their premises. It is then specifically alleged that plaintiffs "have no other means of ingress and egress" to their property except over this roadway and that unless said posts, wire etc., are removed, that plaintiffs "will have no means of ingress and egress" to and from their premises, and that unless the court enjoins the defendant from obstructing this roadway, the plaintiffs "will sustain irreparable injury, * * *."
An injunction is prayed for. The record shows that upon the filing of the petition, a temporary injunction had been issued and a bond given. After the filing of the first amended petition, a motion was filed to dissolve the temporary injunction, which, after a hearing, was overruled by the court.
The record is long, consisting of two volumes of nearly 450 typewritten pages We will refer to the parties as plaintiffs and defendant.
The plaintiffs owned 80 acres of land in Laclede County, Missouri, described as the S 1/2 of the SW 1/4 of Section 29, Township 36, R 14, and the defendant owned 40 acres of land directly west of plaintiffs' west 40, and described as the SE 1/4 of the SE 1/4 of Section 30, Township 36, R 14. No plat or map was introduced in evidence to help clarify verbal descriptions of the relative positions of these tracts of land, the roads traversing them, etc. But the following plat shows the general outline, as shown by the evidence, and will, (we hope) aid the reader in understanding the statement of facts.
These three forties lay in a row east and west — the west 40 belonging to the defendant. Years ago, the old Stoutland-Richland road traversed them, entering the defendant's 40 somewhere along its north line, proceeding in a southeasterly direction until it crossed the west line of plaintiffs' west 40, then in an easterly and northeasterly direction, finally leaving plaintiffs' east 40, crossing the east line somewhere near the northeast corner thereof. This road seems to have had trails leading from it, one of them going south across defendant's 40 and one branching off to the south or southeast, possibly in plaintiffs' east 40. These trails, however, are not in controversy here. The plaintiffs acquired their 80 acres of land from Leonard Brown and wife on the 3rd day of August, 1942. This 80 acres originally were obtained from the Government by John Begley and the principal persons who had owned it after Mr. Begley were Messrs. Bell, Jordan, Price, Thyr, Brown and the plaintiffs, Mr. and Mrs. Sellers.
The line of ownership of defendant's 40 acres is not so long and, according to the record, for years was known as "Railroad Land," then passed to what is known as the "Ozark Plateau Land Co." It was from this latter Company that the defendant obtained title about four years before the trial.
The evidence shows that defendant's 40 was and is a rough, unimproved, uninhabited and unenclosed woodland. There is some evidence that perhaps at one time during the years, there had been a small portion of the southwest corner of defendant's forty fenced for pasture by another person and apparently not with the knowledge or consent of the owner, but we think the evidence conclusively shows that none of it near the road had even been fenced. Some distance south of the north line of plaintiffs' west 40, and near the west line thereof, Mr. Begley, the then owner, had, years ago, built a log cabin. Later a predecessor in ownership of the plaintiffs, built a more modern residence south of the log cabin, 135 steps from the west line of plaintiffs' west forty, and between the cabin and the new residence, the old road, known as the Stoutland-Richland road, ran. It came from the east and approached the west line of plaintiffs' west 40 in a westerly or northwesterly direction and after it crossed it, it turned more northwesterly and forked some 100 or more feet south of the north line of defendant's 40. This road across the three forties was used by some of the residents of that region up until 1903. At that time Mr. Jordan owned what is now plaintiffs' two forties and he petitioned the County Court of Laclede County for a change in the previous location of the road so that it would run from the northeast corner of his east 40 due west three-fourths of a mile on the quarter section line (the north line of all three forties) thence along the railroad in a southwesterly direction, connecting with the old Stoutland-Richland Road. This petition was signed by the Ozark Plateau Land Co., by O. T. Nelson, agent, and this Company was listed as one of the owners of land through which such new location would run, and would give the right of way. This change of location was ordered made by the County Court of Laclede County as a county road, at the expense of the petitioners. This order changing the location would seem to be a recognition of the previous public character of the old Stoutland-Richland road. Mr. Jordan immediately fenced his two forties, the fence going across the abandoned old Stoutland and Richland road. This old road was used very little, if any, from that time on except by the plaintiffs and their predecessors in title or by persons coming either to the log cabin or the new home later to be owned by plaintiffs. The road in controversy in this law suit is the road from plaintiffs' west line in a northwesterly direction to the county road, established on the quarter section line in 1903. Plaintiff Ralph Sellers testified that there were two old road-beds where roads had been across his land from his house to the new road on his north line. That he had at times let one of his neighbors drive through a gap in his north line fence and down to his house "just to be a good neighbor" and keep him from having to go so far around.
There is no evidence as to who owned defendant's 40, for many years, but it was called "Railroad Land". (See Act of Congress, approved June 10, 1852, 10 Stat. 8, granting Missouri certain lands for aid of railroads, also Mo.Laws, 1853, p. 10, 1859, p. 63, 1868, p. 118, and 1870, p. 109.) Also, there is no evidence as to where the Ozark Plateau Land Company" was located at any time. As stated, defendant acquired his title from the latter owner, about four years before the trial.
While the evidence may be slightly conflicting, we think it almost conclusively proves that the 40 acres of the defendant, in addition to being wooded, unenclosed, uncultivated, unimproved and open range, also had no clearly defined trail or road continuously used by the public for any great period of time. It seems to have been more of a trail, which when it became impassable at any place, would vary from its old road bed onto new ground and remain there for a while. This conclusion is accentuated by the proven and admitted fact that it had two exits into the established county road on the north line of defendant's 40, in fact, one of plaintiffs' witnesses testified to a third entrance. There is some evidence that at one time, a commissioner of the road district in which the road in controversy was located, took a road grader, at the request of plaintiff, Ralph Sellers, and another, and reduced the high center of the road but whether this was done before or after the filing of this law suit, is uncertain. Neither could the commissioner remember when or where they were when he was requested to do the work, or what was said. Although he had "lived down there five years" it was the only time he had ever worked on it and this time only for 30 minutes.
There is also some evidence that this entire road across the three forties was used in a general way by the public for perhaps ten years prior to 1887. There is no evidence that the railroad or the "O. P. or Plateau Land Company" ever consented or objected to the use of this open woodland by anyone who ever wanted to cross it, but there is evidence that it was crossed at any place and for many years by anyone that wanted to.
The defendant offered to prove that there was a gap in the fence on the north line of plaintiffs' west 40 directly north of their house and that they could have ingress and egress to their property over their own land north of their house and through this gap, that this way was practicable and that within two years vehicles had travelled this way to plaintiffs' house and over plaintiffs' land. The court refused to admit this evidence and refused the offer upon the strenuous objection of plaintiffs, that it injected a different issue in the case. While both of the exits of the road in question into the county road on the north line of defendant's 40 were used, the one farthest west toward Stoutland seemed at times to go through a mudhole and was the least used. The road established by the County Court in 1903, by changing its previous location, is now the Stoutland and Richland road but one may go south to Highway 66 and from there in an easterly direction to the state road leading from 66 into Richland. This route was much farther than the county road between Richland and Stoutland.
After hearing the testimony and taking the case under advisement, the chancellor granted a permanent injunction, upon the theory that the road in question was a public road.
Prior to 1887, a road would become a public road if used by the public for ten years continuously. State ex rel. McIntosh v. Haworth, Mo.App., 124 S.W.2d 653. Jordan v. Parsons, 239 Mo.App. 766, 199 S.W.2d 881. Laws of Mo. 1887, Page 257, Sec. 57.
After 1887, a road could become a public road by a proper order of the county court or by the continuous use of said road for a period of ten years or more and the expenditure of public funds upon the road "for such period." Section 228.190 RSMo 1949, V.A.M.S. Marshall v. Callahan, Mo. App., 229 S.W.2d 730. State v. Kitchen, 205 Mo.App. 31, 216 S.W. 981, 984.
As to the expenditure of public money or labor upon the road in question, the evidence shows a probable use of a grader some five years before the trial and another use of a grader about the time the suit was filed, probably a short time before. There is also some evidence that 30 or 35 years ago certain persons worked out their poll taxes on this road. The evidence further shows that the plaintiff, Ralph Sellers, did some work on the road himself, part of it with the knowledge of the defendant. Taking this all as true and fully proved, we do not think it yet meets the requirement of the statute. This court, speaking through Judge Bradley, in State v. Kitchen, supra said:
"We are clearly of the opinion that all that is required by this statute with reference to the expenditure of public money or labor is that for the ten consecutive years of use sufficient public money or labor should be expended on the road to keep it in substantial repair and condition for the public use and public travel."
The evidence in this case clearly shows that the road was not kept in substantial repair and condition for the public use, even by adding the labor of the plaintiff to the alleged operations of the public grader. It is not sufficient that the road be used for ten years continuously, but public money or labor must be expended on it "for such period, * * *." We think the evidence here wholly fails in that regard.
A public road may be established by prescription, that is by the open, notorious, exclusive, continuous, uninterrupted, hostile and adverse user of the road with the knowledge and acquiescence of the owner of the land for a long period of time. But this evidence shows a permissive use only and not one that would prevent the present owner (the defendant) from denying the existence of a prescriptive right.
We do not believe the evidence in this case justifies the finding that this road was used continuously by the public for ten years prior to 1887, but supposing it had been so used for such a period, in 1903, the Stoutland-Richland Road was changed from its then location, the meandering route across these three forties in the approximate shape of an inverted rainbow, to a straight road of designated width on the quarter section line along the north side of all three forties.
The evidence showed this road was actually opened under the County Court order about the first of 1904, had been used by the public continuously since that time and had been maintained by the road district in which it was situated. Such a change of a road from its former location to another necessarily means the abandonment of the former location, so if the old road had been a public road because of user prior to 1887, it was abandoned by the County Court's order made in 1903. This was a progressive change. It shortened a rough and crooked road, placed it upon a straight quarter section line between the different landowners and was consistent with the modern theory of road building and this change in the road undoubtedly included not only that part of the old road on plaintiffs' land but the west part of it that traversed defendant's land because the new road connected with the old road at both ends. The facts here differ from those in State v. Kitchen, supra, for there, the change to the new road was never fully accomplished but abandoned, and the old road was never abandoned but continuously used and maintained by public funds.
We think the evidence in this case preponderates on the side of the theory that there was no definite permanent and fixed road bed of the road in question across defendant's property. The fact that it undisputedly has two exists substantiates this conclusion. But it must also be borne in mind that this was wild and unimproved land. There were no houses upon it, no one living upon it and as far as the evidence shows, no one ever visited and inspected it for its owners prior to its acquisition by the defendant. Mere occupancy or possession of the premises, though known to the owner will not prejudice his rights, he must also be aware of its adverse character. Under the circumstances here, there is no presumption that a right of way for a road was dedicated by the owner of the land or that its use was open, adverse, notorious, continuous, uninterrupted, exclusive and hostile, but rather that it was permissive. Anson v. Tietze, 354 Mo. 552, 190 S.W.2d 193. Zinser v. Lucks, 361 Mo. 671, 235 S.W.2d 844. Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894. Kelsey v. City of Shrewsbury, 335 Mo. 79, 71 S.W.2d 730. Garnett v. City of Slater, 56 Mo.App. 207. Burnett v. Sladek, Mo.App. 251 S.W.2d 397. Schulenbarger v. Johnstone, 64 Wash. 202, 116 P. 843, 35 L.R.A., N.S., 941.
Furthermore, while plaintiffs allege in their petition that they have no other means of ingress and egress, they strenuously objected to evidence showing that they did have such, when proof of such fact was offered by the defendant. Their objections were sustained by the court. If they did have other means of ingress and egress, then there could be no irreparable injury by the closing of the old road.
The evidence does not show this road to be a "way of necessity". It does show that there has been two old roads across plaintiffs' land north to the county road. There is a gap in the fence through which to pass, and it has been used within two years. A route across defendant's land may be a convenience but not a necessity. Marshall v. Callahan, Mo.App., 229 S.W.2d 730.
After a careful reading of the record in this case, we have come to the conclusion that the court erred in granting a permanent injunction. While the trial court had an advantage in hearing the witnesses testify and observing their demeanor, while so doing, it did not have the record before it more than a year after the trial when it rendered its decision. We have it before us and can read and re-read the testimony of each witness and are not required to lean upon the fickle support of memory.
It is our considered conclusion that the plaintiffs were not entitled to an injunction restraining the defendant from fencing his premises. For the reasons, the cause should therefore be reversed and remanded with directions to the trial court to dissolve the temporary injunction, set its decree aside and dismiss plaintiffs' bill.
It is so ordered.
BLAIR and McDOWELL, JJ., concur.