Summary
In Wann v. Gruner, 251 S.W.2d 57 (Mo. 1952) the supreme court affirmed the finding of the trial court that a disputed road was a public road although there was evidence that tree branches extended "to the middle of and down close to the road itself" and persons using the road "had to cut those branches to get by with their automobile."
Summary of this case from Wilson v. ShermanOpinion
No. 43055.
July 14, 1952. Motion for Rehearing or to Transfer to Court en Banc Denied September 8, 1952.
APPEAL FROM THE CIRCUIT COURT OF ST. FRANCOIS COUNTY, RANDOLPH WEBER, SPECIAL JUDGE.
Dearing Matthes, Joseph G. Stewart, Hillsboro, for appellants.
Roberts Roberts, Farmington, for respondents.
This equity action which seeks to judicially establish the existence of and the right of the plaintiffs and the public to use a certain country road (which has existed and been used by the public for more than 75 years) in St. Francois County, Missouri, presents us with another unfortunate instance where rural neighbors living on adjoining farms could not (or would not) use the same road without friction and final resort to the processes of the law in the courts. After the trial court had ordered a survey, and after a trial, the judgment and decree entered below found the issues in favor of plaintiffs and against defendants, granted the injunction prayed enjoining defendants from interfering with plaintiffs' use of the road, ordered defendants to remove certain encroachments on the road, decreed the road "to be an open and public thoroughfare" and set out its boundaries, limits and exact location. The court found the road had been used by plaintiffs, their predecessors, and the public "for at least 75 years, and that the County of St. Francois has expended public money for maintenance thereon for over ten years."
The defendants appealed to the St. Louis Court of Appeals. Under authority of Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552, that court ordered the cause transferred here as involving the title to real estate within the meaning of Article V, Section 3 of the Constitution, V.A.M.S.
The road in question, particularly described in the pleadings and decree, runs northward for only about a mile from a point just east of a certain Methodist Episcopal Cemetery located on the north side of the Doe Run-Elvins road in St. Francois County. Defendants (brother and sister) own and farm the first and second farms north of the cemetery, on the west side of the road in question. Plaintiff Raymond Wann owns and lives on the farm across the road in question from the defendants; plaintiff Harry Wann's farm next adjoins the Raymond Wann farm on the north; plaintiff Charlie Wann owns and lives on the farm next north of Harry Wann, and plaintiff Clifford Wann owns the farm across the road to the west, and just north of the Gruner farm. According to the survey map, made at the trial court's direction and filed here, the road ends at a point between the farms of Charlie and Clifford Wann. It has no outlet on the north. The road in question is the only means of ingress and egress to the premises of plaintiffs Charlie Wann, Harry Wann and Raymond Wann. Defendants claim title to certain portions of the road and authority to close it or place gates across it. Defendant Grace Gruner testified the road in question belonged to her and her brother, defendant Hugh Gruner. On occasions defendants piled dirt in the road and obstructed it to traffic thereover by plaintiffs. On one occasion defendant Grace Gruner ordered Charlie Wann, Jr., to get off of the road and stay off, saying, "it is my road." She said the road "was private property." Plaintiffs were advised in writing by one counsel for defendants that he had examined the abstract of title to defendants' property, and that the road in question "is entirely on Mr. Gruner's lands, and it is my opinion that he can prevent you from using this road if he so desires. Certainly he would be justified in placing two or more gates across this road," etc.
The testimony showed the road to be from 29 to 31 feet wide, except where defendants' fence was moved. The court's survey and decree established it as 29 feet wide. The testimony indicates the road is in an isolated section and somewhat difficult of travel at best. Some of the ruts across the road are six inches deep. Much of the fence along the road was originally the old snake rail or worm fence, — wooden rails laid in zig-zag fashion, the end of the rails laid one on top of another. Witness Henry Ruh, a pioneer of ninety-two years of age, who lived at Hogeye, near Iron Mountain, had known it as a public road and had travelled it as such for about seventy-five years. In front of defendants' house the road is only about 25 feet from the house. At or near that point the fence was moved by defendant Hugh Gruner 6 feet east for a linear distance of about 1200 feet. The branches of cedar trees located on defendants' property extended to the middle of and down close to the road itself and plaintiffs had to cut those branches to get by with their automobile. That resulted in trouble between plaintiffs and defendants. On one occasion when defendants had piled dirt on the road and when some of the plaintiffs were shoveling that dirt out of the way to get their car through, one of the defendants sought to stop plaintiffs from so doing, stood on the shovel and struck one of the plaintiffs with a shovel, saying, "you ain't seen nothing what you will see yet, dirt will be piled up there bigger than what it is now."
The county had done maintenance work on the road for more than ten years; it had been twice graded in the eight years before trial and many loads of rock, chat and gravel had been placed on the road by the county. Sometimes it was impossible to get the county grader through because of the immediate proximity of trees. The low hanging limbs and trees made ditching exceedingly difficult. Certain testimony indicates the road had been known and continuously used by plaintiffs, or their predecessors, and the public in general as a public road for more than 95 years. The road had always been for those years at the same place it was at trial time. It was continuously used by the plaintiffs and by the general public.
Actually the only question before the trial court was the application of the statute to the instant facts. In Section 228.190 RSMo 1949, V.A.M.S., it is provided that "All roads in this state * * * (which) have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads".
The findings of the court that the road in question had been used by plaintiffs, their predecessors and the public "for at least 75 years and that the County of St. Francois has expended public money for maintenance thereon for over ten years," and its decree that the road was "an open and public thoroughfare" were based upon substantial evidence. The findings and decree will not be disturbed on this appeal. Upon the subject generally, see Koller v. Shannon County, Mo.Sup., 19 S.W.2d 865. See also, Phelps v. Dockins, Mo.App., 234 S.W. 1022; Leiweke v. Link, 147 Mo.App. 19, 126 S.W. 197; State v. Kitchen, 205 Mo.App. 31, 216 S.W. 981.
But defendants contend the road in question runs through the above-mentioned cemetery property and over the property of a Mr. Kirkoffer lying east of and across the road from the cemetery. It is therefore argued by defendants that not all of the necessary parties were in court. It is sufficient answer to this contention to note merely that a careful examination of the testimony and the survey map does not support the contention made. The proof tends to establish that the road in question has been in existence and used by the public since 1855 while the cemetery deed was not made until 1866. Defendant Hugh Gruner testified the cemetery property was over a hundred feet west of the road. There is no merit in the contention made.
It is finally urged by defendants that the Chancellor erred in granting injunctive relief. That relief granted in the decree was based upon substantial evidence that defendant Hugh Gruner had encroached upon the road by moving his fence six feet in upon the road for a distance of about 1200 feet; and upon evidence that defendant Grace Gruner intended to further barricade the road and further obstruct the free use of and passage over the road by plaintiffs. Upon this record we may not interfere with the action of the Chancellor in that respect.
The judgment and decree appealed from are supported by both the law and the evidence and must be affirmed.
It is so ordered.
All concur.