Summary
recognizing that to acquire an easement there must be a dominant and a servient estate and they must not be lodged in the same person
Summary of this case from One Harbor Fin. Ltd. v. Hynes PropOpinion
Opinion delivered April 6, 1950.
1. — Appeal and Error. An equity case is heard de novo by Court of Appeals which must render such a judgment and decree as should have been rendered by trial court, giving due deference to advantageous position of chancellor in being able to see and hear witnesses as they testified at trial.
2. — Highways. In absence of evidence that road had been used for ten consecutive years prior to March 30, 1887, or that road had been opened by county court and used for 10 years continuously or had been used by public for 10 years continuously and public money had been spent thereon, road was not a public road.
3. — Easements. To establish private road or easement by prescription, use of road must be hostile and defendant must have known that use of road was under claim of right and in defiance of defendant's title.
4. — Deeds. Doubts arising as to intention of parties to deed must be resolved in favor of free and untrammeled use of land.
5. — Easements. Plaintiffs having ample means of ingress and egress to their pasture farm were not entitled to lane as way of necessity across land conveyed by plaintiffs to defendants.
6. — Easements. A mere convenience or a shorter route is not sufficient to create or convey a right or easement or impose burdens on land other than those granted as incidents to the grant.
7. — Easements. The law does not favor implication easements.
8. — Evidence. To change or modify plain terms of warranty deed and to settle upon the fee simple title a burden not shown by the record, the evidence must be clear, cogent and convincing.
9. — Easements. To acquire an easement there must be a dominant and servient estate and they must not be lodged in the same person, and one who owns the fee cannot acquire an easement over it.
10. — Tenancy in Common. Each tenant in common would be presumed to hold with and for the other tenants in common.
11. — Easements. Evidence was insufficient to show that right of way was part of consideration for 20 acres of land conveyed by plaintiffs to defendants by deed not reserving right of way or that plaintiffs and defendants entered into parole agreement reserving right of way or that reasonable necessity existed for right of way, or that there existed a private road or easement by prescription.
Appeal from Circuit Court of Howell County. — Hon. Gordon Dorris, Judge.
REVERSED AND REMANDED WITH DIRECTIONS.
A.W. Landis, for appellants.
As this is an equity case on appeal, it is the duty of this court to review the entire evidence in the case and reach such conclusion as in equity and good conscience as the court deems proper under all the circumstances. State ex rel. v. Raeder, 196 S.W.2d 19 (1), l.c. 23; Connell v. Realty Inv. Co., 180 S.W.2d 49 (10), l.c. 54; Fricke v. Belz 177 S.W.2d 702 (2) l.c. 704. II. To support the finding of the trial court that the alleged lane road on defendants' land had been shown "to have the standing of a public road by prescription", it must be found from the greater weight of the evidence, either: (1) That a right of prescription was established by the use of such lane road by the public for ten consecutive years next before March 30, 1887; Jordon v. Parsons 199 S.W.2d 881 (4), l.c. 886; State ex rel. v. Haworth, 124 S.W.2d 653 (1-3), l.c. 654-656; Rosendahl v. Buecker 27 SW (2) 471 (2-3), l.c. 472. (2) Or that such alleged lane road on defendant's land had been used or traveled by the public for ten years continuously and upon which there had been expended public money or labor for such period. Section 8485 of R.S. of Mo., 1939. See cases cited under subdivision (1) of II above. No such evidence appears in the record of this case. III. Where a lane or road is left open on the owner's land for his own convenience and no public money or labor has been expended thereon for such ten year period, it is not a public road, even though traveled by the public with the knowledge and consent of the owner. Kansas City S. Ry. Co. v. Woolard 60 Mo. App. 631; Field v. Mark 28 S.W. 1004, 125 Mo. 502; Kelsey v. Shrewsbury 71 S.W.2d 730 (1) l.c. 731. IV. To entitle plaintiffs to a private road by prescription over defendants' land, it devolved upon the plaintiffs to show that they, or those under whom they claim title to the lands owned by them north of defendants' land, had used such road (in same place) adversely to owners of defendants' land for a period of ten years openly, notoriously, continuously, and exclusively under a claim of right with the knowledge of the owners of defendants' said land that such road was being so used. State ex rel. v. Shain, 152 S.W.2d 174; Fassold v. Schamburg 166 S.W.2d 571; Novinger v. Schoop 201 S.W. 64. V. A private road is an easement or right of way over another's land which a person has the right to use in connection with his own land for a definite purpose and is distinct from a way that is used by the public in general. Mahnken v. Gillespie 43 S.W.2d 797 (3), l.c. 800, 801; 329 Mo. 51; Rice v. Wade 111 S.W. 594 (4), l.c. 595, 596, 131 Mo. App. 338. VI. The burden was on the plaintiffs to prove the commencement of the adverse user by them, or those under whom they claim, of the lane road in question on defendants' land. Doyle v. Brown 88 S.W.2d 889 (1) l.c. 891; Hynds v. Hynds 202 S.W. 387 (2, 3), 274 Mo. 123. VII. Vacant, uninclosed and unoccupied lands used for a road will be presumed to have been by permission of the owner and not adverse to him. Anson v. Tietze, 190 S.W.2d 193 (12-18) l.c. 198-200; Mayo v. Schumer 256 S.W. 549; Kelsey v. City of Schrewsbury 71 S.W.2d 730. VIII. To acquire the right to the use of a road way by prescription, the road must run, or be, in the same place during the whole of the prescription period. State ex rel. v. Haworth, 124 S.W.2d 653 (2), l.c. 655; Rigg v. City of Springfield, 126 S.W.2d 1144 (4, 5) l.c. 1149; City of Higginsville ex rel. v. Alton Ry. Co., 171 S.W.2d 795 (23) l.c. 805; Roth v. Hoffman 111 S.W.2d 988 (4) l.c. 992. IX. No prescriptive right was acquired by George Callahan and his wife, Minerva J. Callahan, in the lane road on defendants' land during their ownership of it and plaintiffs' land north of it, because one cannot acquire a prescriptive right of way over his own lands and so long as a tract of land remains in one ownership there can be no dominant and servient tenements or estates between different portions of the tract. Gardner v. Maffitt 74 S.W.2d 604 (1-3), l.c. 606, 607; Bales v. Butts 274 S.W. 679 (1) l.c. 681, 309 Mo. l.c. 150; State ex rel. v. Hughes 173 S.W.2d 45, l.c. 47, 50; Vossen v. Dautel 22 S.W. 734, l.c. 735, 116 Mo. 379. X. For the same reason, no prescriptive right was acquired in said lane road on defendants' land by any co-tenant during the period of ownership of the Callahan heirs. There was no evidence of any adverse user of such lane road under a claim of right of any co-tenant against the other co-tenants during such joint ownership in common. The general rule is that the possession of one co-tenant is the possession of all co-tenants in common. Mann v. Mann 183 S.W.2d 557 (2, 3) l.c. 558; Doyle v. Brown 88 S.W.2d 889. XI. No adverse user of a private road or passage way in favor of a dominant estate against a servient estate can arise until such estates come into existence. See cases cited under No. IX above. Greisinger v. Klinhardt, 282 S.W. 473 (9), l.c. 476, 477. XII. An easement may be extinguished by the act of the owner of the easement which is incompatible with the existence of the rights claimed. "Frisco" Ry. Co. v. Oil and Gas Co., 127 S.W.2d 31; Eureka Real Estate and Inv. Co. v. Southern Real Estate and Finance Co., 200 S.W.2d 328. XIII. Non-user of an easement for the ten year period prescribed by the statute of limitations constitutes an abandonment of the right. Barkshire v. Drainage District 136 S.W.2d 701 (1) l.c. 707; Mahnken v. Gillespie 43 SW (2) 797 (4) l.c. 800, 801. XIV. The law does not favor easements by implication, and plaintiffs, to establish their right to an easement over defendants' land by implication, must show such right by proof that is clear, cogent and convincing. Schnider v. Realty Inv. Co. 193 S.W.2d 69 (4) l.c. 73-74. XV. Where a party can at reasonable expense secure over his own land the relief which he seeks to impress on another's land by an implied easement, the essential element of necessity required in such cases is missing, and mere convenience is not necessity. Schnider v. Realty Inv. Co. 193 S.W.2d 69 (2-5) l.c. 73-74; Seested v. Applegate 26 S.W.2d 796, l.c. 799; Rice v. Wade 111 S.W. 594, 131 Mo. App. 338. XVI. In the absence of fraud, duress or mistake — and there is not any evidence whatsoever of these in the instant case — oral testimony of the grantor of a deed, or of a party to any written contract, is inadmissible to change, contradict, add to, or take from the provisions, terms or limitations of such deed or written contract. Miles v. Robertson 167 S.W. 1000, 258 Mo. 717; In re: Jamison's Estate 202 S.W.2d 879; Baptiste Tent Awning Co. v. Uhri 129 S.W.2d 9; State ex rel. v. Boyle-Prior Const. Co. 180 S.W.2d 727. XVII. Parol evidence of prior or contemporaneous oral agreements is inadmissible to vary, add to, contradict or change the terms of a written contract for the reason that the law presumes that all prior or contemporaneous oral agreements are merged into the written agreement. Schroeder v. Drewer 113 S.W.2d 1045; Construction Co. v. Osterholm 136 SW (2) 86; Oldham v. Siegfried 202 S.W.2d 132; XVIII. Injunction should be denied when it would cause a loss without correspondingly great advantage to complaining party, or where the injury is small or technical. Putnam v. Coats 283 S.W. 717, 220 Mo. App. 218; Johnson v. United Ry. Co. of St. Louis 127 SW l.c. 70, 71; Holland Realty Power Co. v. City of St. Louis, 221 S.W. 51, 282 Mo. 180.
Green Green, Will H.D. Green, H.D. Green for respondents.
(1) The respondents by the allegations contained in their Second Amended Petition predicated their right to the relief prayed for on any one of four grounds (1) Establishment of the road by prescription; (2) As a part of the consideration in the sale of twenty acres; (3) By parole agreement and (4) As a way of reasonable necessity. A. An easement had been established by prescription long prior to the acquisition of either tract by the present owners. The roadway was visible and clearly defined. Therefore defendants title was subject to the easement. Smith v. Santarelli 207 S.W.2d 543; Missouri Power Light Co. v. Thomas 340 Mo. 1022, 102 S.W.2d 564; 28 C.J.S. Easements, Sec. 49. B. After easement is established by adverse use over a period of ten years such easement by prescription can only be abandoned by ten years period. Barkshire v. Drainage District No. 1, 136 S.W.2d 701; Hatton v. Kansas City C. S. Railroad Co. 253 Mo. 660, 162 S.W. 227, 232. C. Where there is a sale of a tract of land upon which there is an obvious existing easement or burden of any kind like an ordinary highway, a railroad or mill pond, the fair presumption, in the absence of any express provision in the contract upon the subject, is, that both parties act with direct reference to the apparent existing burden, and that the vendor demands, and the purchaser pays, only the value of the land subject to it. This presumption is independent of the question whether the party enjoying the easement has perfected his title as against the vendor or not. Nothing being said upon the subject they deal with the property in its existing condition and upon the assumption that it is subject to all the burdens to which it appears to be subject. Missouri Power Light Co. v. Thomas et ux. (Sup) 102 S.W.2d 564; Pomeroy Ex'r v. Railroad 25 Wis. 641, 643. D. Consideration for deed is always open to investigation and may be established by parole testimony. Finley v. Williams 325 Mo. 688; 29 S.W.2d 103; Hart et al. v. Reidel et ux. 51 SW (2) 891; Roberts v. Robberson et al. 215 S.W.2d 767, 771. E. Every element necessary to establish an easement by reasonable necessity was proven in this case. The elements necessary are (1) A separation of title, (2) Necessity that before the separation takes place the use which gives right to the easement shall have been so long continued and obvious or manifest as to show that it is meant to be permanent and (3) reasonable necessity that the easement be essential to the beneficial enjoyment of the land granted or retained. Greisinger v. Klinhardt (Sup) 9 S.W.2d 978; Schnider v. Realty Investment Co. 193 S.W.2d 69; Mahnken v. Gillespie 329 Mo. 51, 59 43 S.W.2d 797. F. The defendant, Alfred Callahan is a brother of the plaintiff, Minnie Marshall. Callahan did not attempt to close the road until seven years after obtaining the deed from plaintiffs conveying him the twenty acres.
This cause was begun by the plaintiffs (respondents) filing a petition in the Circuit Court of Howell County, Missouri, praying the issuance of a mandatory injunction against the defendants (appellants) requiring them to remove obstructions from a road which the plaintiffs alleged was a private road or lane, by prescription, leading across defendants' land, connecting plaintiffs' residence with their farm and that said road or lane has been in use "continually, openly, adversely and notoriously for more than 50 years." The right of plaintiffs to maintain their action was denied in defendants' answer and the points raised will be more specifically referred to in the course of this opinion.
The situs of this litigation is the SW¼ of Section 34, Township 23, Range 10, North, in Howell County, Missouri. A short history of the title to this quarter section is necessary for an understanding of the issues. The north half of this quarter section (80 acres) was conveyed to George R. Callahan, the father of Minnie Marshall, and Alfred M. Callahan, by a patent from the United States, dated February 2, 1900. The SE¼ of this quarter section was deeded to G.R. (George R.) Callahan by W.J. Murphy, a single man, by warranty deed August 30, 1906. The other 40 acres of this quarter section (SW¼ of the SW¼) was owned by other parties and is referred to as the "Summers" or "McDaniel" forty. On January 18, 1915, G.R. (George R.) Callahan conveyed the N½ and the SE¼ of this quarter section to his wife, Minerva J. (Jane) Callahan, who was the mother of Minnie Marshall and Alfred Callahan. Minerva J. Callahan died May 25, 1928 and George Callahan, her husband, died in April, 1937. Until her death, the title remained in Minerva J. Callahan and after the death of Minerva and George, in their children as heirs or tenants in common until April 22, 1940, at which time by mutual exchanges of warranty deeds between the heirs, plaintiffs became the owners of all of the N½ and the SE¼ of the SW¼ of the quarter section in controversy. Plaintiffs on that day conveyed to defendants, by warranty deed, the S½ of the SE¼ of the SW¼ of said quarter section. The lane in controversy was not reserved or mentioned in this deed.
Plaintiffs own a farm of 220 acres on the south side of Highway 80 and south of this twenty acres, so conveyed. On this farm was their residence, located approximately south of the center of this quarter section, and at the south end of the lane, which was alleged to have been obstructed. Highway 80 is a black top road, and runs east and west between the Marshall home farm and the 20 acres of defendants. On the east side of the SW¼ of Section 34, running the full length thereof, north from Highway 80, was a county road which could be and was traveled by automobiles and other vehicles. Running north from Highway 80 on the west side of the quarter section, was a public road which was also used for vehicular traffic. The public road on the west bordered the plaintiffs' pasture farm by one-fourth mile and the county road on the east bordered it three-eighths of a mile. Near the center of this quarter section was an old barn, but there is no evidence that it was being used. The entire one hundred acres was used for pasture and much of it was covered with timber. The land extends north from Highway 80, one-eighth of a mile on the west end of defendants' twenty acres, to the plaintiffs' pasture land.
The trial court granted a permanent mandatory injunction upon the theory that the plaintiffs had acquired a private road by prescription and the obstructions were ordered removed.
The decree was rendered September 7, 1948 and the record shows that the chancellor's docket contains the following minutes:
"Decree and judgment for plaintiffs as per prayer of petition and injunction made permanent — Court finding being the road in question has been shown to have the standing of a public road by prescription; and on the question of establishment of public road by consideration paid by parole agreement or reasonable necessity failure of proof on such issues."
The decree grants a permanent injunction and states:
"The Court finds that the road in question as described in the pleadings has been shown to have the standing of a road by prescription."
From this judgment and decree, the defendants have appealed.
This being an equity case, it is heard de novo by this court. The responsibility is ours to render such a judgment and decree as we think should have been rendered by the trial court, at the same time giving due deference to the advantageous position of the chancellor in being able to see and hear the witnesses as they testified at the trial. State ex rel. Wallach v. Raeder (Mo. App.) 196 S.W.2d 19. Held v. Reis, (Mo.) 193 S.W.2d 17. Binnion v. Clark (Mo.) 221 S.W.2d 214. Thomas v. Milfeit (Mo. App.) 222 S.W.2d 359. Palich v. Hermann (Mo. App.) 219 S.W.2d 849. Rubenstein v. City of Salem, (Mo. App.) 210 S.W.2d 382.
The decree does not specifically state whether the Chancellor found the road to be of a public or private nature but under no theory of the case could it have been a public road because there is no evidence that it had been used for ten consecutive years prior to March 30, 1887. (Laws of Missouri 1887, p. 257, Sec. 57. Jordon v. Parsons 239 Mo. App. 766, 199 S.W.2d 881.) Neither is there evidence that it had been opened by the county court and used for ten years continuously or that it had been used by the public for ten years continuously and public money had been spent thereon for such period (Sec. 8485 M.R.S.A. 1939. State ex rel. McIntosh v. Haworth et al. (Mo. App.) 124 S.W.2d 653.
But did the evidence show that the plaintiffs were entitled to use the lane in question across defendants' land, as a private road or easement, by prescription? The evidence on this issue, on the part of the plaintiffs, was that this lane had been used intermittently for from 25 to possibly 60 years. But there is no proof that this user was hostile, (Kelsey v. City of Shrewsbury 71 S.W.2d 730, 335 79) or that defendants knew the use of the road was under claim of right and in defiance of their title. (Allen v. Wiseman, (Mo. Sup.) 224 S.W.2d 1010. Anson v. Tietze 354 Mo. 552, 190 S.W.2d 193. Fassold v. Schamburg 350 Mo. 464, 166 S.W.2d 571.)
The lane was over rough land and at one time part of it had been across what was known as the "Summers" or "McDaniel" forty (SW¼ of SW¼) so it would be near a water hole on that land. There is no evidence that it was ever worked or improved by anyone. The evidence did show that many years ago a "yoke of oxen" had been driven over it. The evidence shows that it was sometimes used for driving cattle, going on horseback or on foot but there was no positive evidence that it was used or could be used for an automobile, buggy, or wagon. At one time a tractor had been driven over it. The evidence shows it was more of a trail than a road. How often it was used or what period of time does not clearly appear but in the testimony of Plaintiff, Wm. Marshall, we find the following:
"Q. Have you used this lane during the years, that is 7 or 8 going back and forth up there?
"A. Yes, sir."
Mrs. Marshall testified she drove cattle through the lane every few days since this lawsuit was instituted.
Plaintiff, Wm. Marshall, contended that as part of the consideration for the 20 acres, the defendant, Alfred Callahan, agreed to leave the lane open and in support of that contention the record shows the following question to which an objection was sustained by the court:
"Q. Now Mr. Marshall at the time that you were negotiating and delivery was made by you and wife deeding the 20 acres to Mr. Callahan and his wife did you have any agreement or was there any part of the consideration in regard to this lane?"
However, the witness (plaintiff, Wm. Marshall) answered:
"A. I told him we wouldn't deed it to him unless he deeded us a right of way through the lane and he said it had been a road too long and he couldn't close it if he wanted to."
This was again objected to and the objection overruled.
The record further shows Mr. Marshall testifying:
"Q. State whether or not as part of the agreement it was agreed to leave the road open?
"A. It absolutely is."
On cross examination, he testified further:
"Q. Do you know whether this statement or alleged agreement you testified to was before or after the dates of the deeds?
"A. I suppose it was afterwards.
"Q. You wouldn't say?
"A. I am sure it was.
* * * *
"Q. You say that there was an agreement between you and Callahan that he would keep this road open, when was that made?
"A. It was in the deal in making the trade."
On the other hand, this testimony was emphatically denied by defendant, Alfred Callahan. Assuming but not deciding, that evidence of this character was admissible to show that this alleged agreement was part of the consideration, it was not clear, cogent and convincing.
When the deed was made to the defendants by plaintiffs, they had title to the entire tract. They did not demand or receive a deed to the roadway. There was no reservation or mention in the deed, executed by plaintiffs, of the right of way or easement that plaintiffs now value so highly. It would have been a simple matter to have provided for this easement in the deed and then it would have been of record and there could have been no question as to the rights of the parties. From the fact that the plaintiffs did not include it arises the inference that it was not part of the consideration because they were selling the property, were preparing and executing the deed to the 20 acres, and had full opportunity to protect themselves if such was the understanding.
In Restatement of the Law, Property, Servitudes, Vol. 5, page 2979, Sec. 476 the law is stated thus:
"In construing conveyances doubts are resolved in favor of the conveyee and against the conveyor. To a greater extent than is true of the conveyee the conveyor controls both the language of the conveyance and the circumstances under which it is made and has the power to make the language of the conveyance express the intention of the parties. To the extent to which this is true his failure to make it do so is held to operate to his disadvantage rather than to the disadvantage of the conveyee. What is true in construing the language of a conveyance is likewise true in drawing inferences from the circumstances under which the conveyance was made. Accordingly, circumstances which may be sufficient to imply the creation of an easement in favor of a conveyee may not be sufficient to imply the creation of one in favor of the conveyor."
Doubts arising as to the intention of the parties must be resolved in favor of the free and untrammeled use of the land. Gardner v. Maffitt 335 Mo. 959, 74 S.W.2d 604. The evidence does not show a private road or easement by prescription.
The undisputed evidence shows that plaintiffs could go 1/8 mile north from the east end of the home farm on the county road and be at their pasture farm. Unquestionably they could also go west from their residence on the paved highway ¼ mile and north ¼ mile over a public road and reach the Southwest corner of their north 80. Plaintiffs have ample means of ingress and egress to their pasture farm and are not entitled to the lane as a way of necessity. Rice v. Wade 131 Mo. App. 338, 111 S.W. 594. Plaintiffs claim an implied easement in the lane in question as a way of necessity. The evidence does not sustain that contention, in fact it clearly shows that such is not the case. In Schnider v. M.E.H. Realty Co. 239 Mo. App. 546, 193 S.W.2d 69, Judge Cave, speaking for the Kansas City Court of Appeals, exhaustively reviews the authorities on the degree of necessity that will justify an implied easement, discusses the differences between strict necessity, (See Bales v. Butts, 309 Mo. 142, 274 S.W. 679) and reasonable necessity and holds that the present trend of authority is to require reasonable necessity only, but then states:
"Where a party can, at reasonable expense, secure, over his own property, the relief which he seeks to impress upon another's property by an implied easement, the essential element of necessity is missing and his claim must fail. (Citing numerous cases)
"All authorities agree that no implication of a grant of an easement arises from proof that the easement will be convenient in the occupation or use of the land granted — the foundation of the easement must be necessity and not convenience.
In that case the evidence showed that the defendant could eliminate the necessity of an easement on adjoining property by the expenditure of $2,000.00. In the case at bar, there would be no expenditure, whatsoever. In driving cattle or going to the pasture farm, plaintiff would be required to cross paved highway 80, whether they went by the public road on the west, the county road on the east or the lane in the center. There is a great deal of difference between convenience and necessity. A mere convenience or a shorter route is not sufficient to create or convey a right or easement, or impose burdens on land other than those granted, as incidents to the grant. Bussmeyer v. Jablonsky 145 S.W. 772, 241 Mo. 681. Vossen v. Dautel 116 Mo. 379, 22 S.W. 734. Field v. Mark 125 Mo. 502, 28 S.W. 1004. We are not convinced that traveling the lane, which was rough, would be more convenient than traveling the good county road on the east or the public road on the west. But, be that as it may, the use of that lane is certainly not shown to be either a strict or reasonable necessity.
The law does not favor implication easements. In this case the effectuation of plaintiffs' contentions would be to change or modify the plain terms of a warranty deed; to saddle upon the fee simple title a burden not shown by the record. To do this the evidence must be clear, cogent and convincing. Schnider v. M.E.H. Realty Co. 239 Mo. App. 546, 193 S.W.2d 69. In this case it falls far short. The reason for this rule is clearly stated in Warren v. Blake 54 Me. 276, 89 Am. Dec. 748, where it is said: (l.c. 289)
"If we adopt any other rule than that of strict necessity, we open a door to doubt and uncertainty, to the disturbance and questioning of titles, and to controversies as to matters of fact, outside of the language or boundaries of the deed. If an estate, fully granted without exception or reservations, can be encumbered forever by an easement, or right of use by a third party, by the finding of a jury that such use would be highly convenient, or that it was exercised by a former owner, or was notorious, or any other ground short of strict necessity, the sanctity and security of titles by deeds exact and precise in their terms, would be seriously shaken and impaired. The record gives no notice of any such right or easement."
Foxx et al. v. Thompson, (Mo.) 216 S.W.2d 87.
To acquire an easement, there must be a dominant and servient estate and they must not be lodged in the same person. Gardner v. Maffitt 335 Mo. 959, 74 S.W.2d 604. State ex rel. v. Hughes, 351 Mo. 488, 173 S.W.2d 45. Bales v. Butts, 309 Mo. 142, 274 S.W. 679. Vossen v. Dautel 116 Mo. 379, 22 S.W. 734. One who owns the fee can not acquire an easement over it. The easement, if one existed, is merged into the fee. There is no evidence in this case that plaintiffs acquired any prescriptive rights in this lane when it was owned by their father and mother or either of them. Mrs. Marshall was only six or seven years of age at that time they acquired it. Upon the death of her parents and until April 22, 1940, the children owned the entire 120 acres as tenants in common and the presumption would be that each held with and for the other. 1 Am. Jur. Adverse Possession Sec. 51, Hynds et al. v. Hynds 274 Mo. 123, 202 S.W. 387, Mann et al. v. Mann et al. 353 Mo. 619, 183 S.W.2d 557. Allen v. Morris et al. 244 Mo. 357, 148 S.W. 905. Doyle et al. v. Brown, et al. (Mo.) 88 S.W.2d 889. Indeed, this joint ownership was recognized by the mutual exchange of the various deeds of plaintiff, Minnie Marshall, and her brothers and sisters by which plaintiffs obtained their title. Between April 22, 1940 and the filing of this suit (Jan. 12, 1947) ten years had not elapsed and they could not have acquired title by prescription. The most that can be said from the evidence is that it shows a permissive right or license to use the lane in controversy but that it was with no intention of permitting it to develop into a prescriptive right and become a burden upon the fee. Foxx et al. v. Thompson, (Mo.) 216 S.W.2d 87.
Respondents contend that the lane was open and visible at the time the land was purchased by the appellants, and that it came within the doctrine announced in Missouri Power Light Co. v. Thomas et ux., 102 S.W.2d 564, 340 Mo. 1022, where it was stated:
"Where there is a sale of a tract of land upon which there is an obvious existing easement or burden of any kind like an ordinary highway, a railroad or mill pond, the fair presumption, in the absence of any express provision in the contract upon the subject is, that both parties act with direct reference to the apparent existing burden, and that the vendor demands and the purchaser pays only the value of the land subject to it."
With the law pronounced in that case, we find no fault. But the facts in the case before us do not bring it within the doctrine there announced. If the road described in evidence in the case before us was so obvious that one purchasing the land over which it ran would take title subject to that easement, then there would be no safety in accepting any deed to land over which there was an old road or trail. It was not an apparent existing burden upon the land.
We have carefully read the cases cited by Respondents but they are not controlling when applied to the facts in this case.
We think the Chancellor was correct in finding that the right of way contended for was not part of the consideration for the twenty acres, that the road was not established by a parole agreement between the parties and that there was no reasonable necessity for it, but we think he was in error in holding that it had "the standing of a road by prescription." The judgment should therefore be reversed and the cause remanded with directions to the trial court to dismiss respondents' petition for want of equity. It is so ordered.
Blair, J., and McDowell, J., concur.