Opinion
No. 28142.
December 19, 1950.
APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, EDWARD T. EVERSOLE, J.
J. W. Thurman, Mason Schubel, Hillsboro, for appellants.
John W. Barry, St. Louis, Dearing Matthes, M. C. Matthes, all of Hillsboro, for respondents.
This is an action wherein plaintiffs seek a permanent injunction against defendants to enjoin them from obstructing or interfering with plaintiffs' use of a certain roadway which traverses defendants' property, and a mandatory injunction requiring defendants to remove certain obstructions erected by them across said roadway. An easement by prescription is claimed by plaintiffs and denied by defendants. There was a finding and judgment below for plaintiffs. From this judgment, defendants have appealed.
The owners of the alleged dominant estates are the plaintiffs herein, namely, Herbert A. Meyer and Clara Meyer, his wife, and William Henry Wagner and Bernice Wagner, his wife. The servient estates are owned by defendants, namely Bernard Everett and Lucille Everett, his wife, George Hunkler and Matilda Hunkler, his wife, Edward Wagner and Gregor Wagner.
The petition alleged that the roadway had for a period of forty years been located upon the property of defendant Gregor Wagner, and that for a period of approximately sixteen years prior to April 10, 1949, the roadway in question had been used by plaintiffs, their predecessors in title, and the public generally, as a means of ingress and egress to and from their respective properties; that on or about April 10, 1949, defendants wrongfully blocked said roadway by constructing a barbed-wire fence across same, thereby depriving plaintiffs and others of the use of said roadway; that by reason of the use of said roadway plaintiffs and others had acquired an easement therein and the right to use said roadway free and unobstructed by gates, fences or other obstructions.
Defendants' answer admitted the existence of a road traversing defendants' property, but denied that said road was a public road. It was further alleged that said road was a private way traveled by the public only with the consent and permission of the defendants, and that neither plaintiffs nor any other persons had had the open and notorious use of said roadway for an uninterrupted period of more than ten years.
The road in dispute in about 1300 feet in length and runs in a northeasterly direction from a county road, known as the Corisande Hill Road, to the property belonging to plaintiffs Herbert A. Meyer and Clara Meyer. As it leaves the county road the road in question first passes through land belonging to defendants Bernard Everett and Lucille Everett, then through the property of the other defendants. The Meyers own two parcels of land, one containing 10.90 acres and the other 12.97 acres, and, since 1933, they have lived in a house situated on one of these tracts of land. Plaintiffs William Henry Wagner and Bernice Wagner own a tract of land adjoining the Meyers' property. The property of all the parties hereto is located in the northern part of Jefferson County. The road in dispute will hereafter be referred to as the Wagner Road.
From 1932 to 1942 plaintiffs Herbert A. Meyer and Clara Meyer, together with Mr. E. A. Miller, owned and operated a resort on the Meramec River known as the Corisande Beach. In 1933 the Meyers purchased the property adjacent to the Wagners' from Michael Kauseth and have lived there ever since.
Mrs. Meyer testified that before buying this property she and her husband visited Michael Kauseth about three times and each time used the Wagner Road. She stated that there was no fence, gate or obstruction of any kind on the road at that time. Mrs. Meyer further testified that after she and her husband moved onto the property in 1933 they used the Wagner Road practically every day; that her husband went over the road to the beach every day and returned over said road every night, and that they used the Wagner Road until defendants closed it in April, 1949. She further testified that she and her husband had friends who visited them who used the road in question; and that "Mr. Riebold had some land down there in the bottom and he and his sons would go through there every day with their wagon and tractor, hauling their tractor back and forth during the season they raised their crops." When asked how many people used the road from 1933 until it was closed in 1949, the witness replied: "That would be hard to say. There were lots of them. There were so many of our friends that would come down to the beach while we were working down there and they considered our house a little unusual and unique and would drive up there to see our house and come back."
Mrs. Meyer further testified that when she and her husband attempted to use the road on April 10, 1949, they found that a fence had been constructed across the road where their land adjoins that of Gregor Wagner. The wires were loosely tied across the posts at that time and Mr. Meyer loosened the wires. Later that day Mr. and Mrs. Everett nailed the wires to posts. Thereafter, the Meyers quit using the Wagner Road and have since been using what was referred to in the evidence as the Wiljeck Road which ran through land owned by four or five persons. According to plaintiffs' evidence, a portion of the Wiljeck Road runs through a marsh and is under water as much as a week at a time when the Meramec River is high, and the road is impassable during the time of heavy rains. It is over a mile from Meyers' house to the county road by way of the Wiljeck Road.
On cross-examination, Mrs. Meyer testified that from 1933 to 1937 inclusive she and her husband lived in the city during the winter months, but from 1937 to 1948 they lived on their Jefferson County property the year round; that they used both roads during that period, and that there had never been a fence across the Wagner Road until between the 3rd and 10th of April, 1949, when Mr. Everett or Mr. Wagner put a fence across it.
Mrs. Meyer was asked if there was a road running in a southeasterly direction from their property down a hill to the county road. She replied that "Mr. Kauseth had built a road, it was only a wagon trial and it was almost perpendicular in places and they went down through the bottom field * * * and Mr. Wagner's son ploughed it up. We couldn't use it anyway."
Plaintiff Herbert A. Meyer testified that after purchasing the property in 1933 he used the Wagner Road every day; that he was constantly in and out over that road and that there was never any objection to his using the road by Mr. Gregor Wagner. The witness stated: "Mr. Wagner and I got along swell. * * * We stayed there continuously for ten years. * * * I delivered groceries and picked up produce and everything and was always in and out that road." Mr. Meyer further testified that the Wagner Road had always intersected the Corisande Hill Road at its present intersection.
Defendants' evidence was to the effect that the Wagner Road was not extended to the Corisande Hill Road until 1937. When asked if he had done any work improving the Wagner Road, Mr. Meyer replied: "Yes, I have helped Mr. Wagner work on it as far as putting in culverts was concerned, and our road leading from our road to his house, I have put gravel on there." Mr. Meyer further stated that there never was a wire fence across the road until April, 1949. He stated: "We first noticed it April 10th. We went down to our house and when we got to the bottom of the hill there was a fence, the first we knew there was any obstruction. * * * We were going downhill. It is only a road twelve to fifteen feet wide. I couldn't back up. There wasn't any possible chance of backing up. I took the wires and laid them aside. I never put them up again because I didn't have any idea they were there for that. I laid them aside and went down the roadway. * * * They nailed them up that same evening." The witness further testified that since April 10, 1949, he had been using the Wiljeck Road; that the marsh through which the Wiljeck Road runs "is at least 500 feet in length and makes a big half moon and it gets four or five feet deep when water is high. When we have a heavy downpour like we had yesterday you run a chance of not getting out of there. I have had Wiljeck pull me out of there. * * * It (marsh) is very large. It is like a big lake. They call it salt spring. * * * When the river is up we can't get in."
When asked concerning the other possible way of getting from his place to the county road, which is southeast over a bluff, the witness testified: "It has been remarked that a road could be built down that hill. * * * It is terribly steep and dangerous. It crosses a ravine about eighty feet deep. It is impractical and impossible to keep a road there."
On cross-examination, Mr. Meyer testified:
"* * * I never had any difficulty with Mr. Wagner over this road.
"Q. When was the question of your right to use it first raised? A. The day I mentioned when I came there and took the fence down. That afternoon Mr. Everett and his wife came over and nailed it up.
* * * * * *
"Q. Did you attempt to buy a right-of-way from Mr. Wagner? A. We talked to Mr. Wagner about changing that road: that the proper place for his road would be back of his smoke house or back of his field. He was satisfied to leave it where it was. He said it didn't bother him and it didn't bother us, and we continued to use it that way."
Mr. Meyer could not fix the time of this conversation. He then testified:
"Q. You did offer to buy a right-of-way? A. To change it from where it was.
* * * * * *
"Q. Did you ever attempt to grade this road, Mr. Meyer? A. No. I believe Mr. Wagner at one time told me I could grade it if I wanted to.
"Q. Do you remember taking a grader there and starting to grade this road back in 1938? A. No, sir.
"Q. And you were told to leave by Mr. Wagner, you do not remember that? A. No, I was never told to leave by Mr. Wagner.
"Q. Did you send a grader over there to have the road graded along about that time? A. If I did it was with Mr. Wagner's permission. * * * As I remember, that was when we wanted to change the road back of the smoke house. * * They were satified where it was and we didn't change it. I never had any trouble with Mr. Wagner."
Henry Wallher testified that he traveled the Wagner Road in 1932, at which time there was no fence or obstruction of any kind across the road. He also stated that since 1933 he had used the road when visiting Mr. Wagner and that on those occasions there were no obstructions across the road.
Ralph Shepardson testified that in 1933 he traveled over the Wagner Road to the Meyer place two or three times a month. He stated that there was no fence or obstruction of any kind across the road at that time. He further stated that subsequent to 1933 he traveled the Wagner Road at least two times each year, with the exception of the two years he was "in the service," and that he never saw a chain across the road on any of those occasions.
Mr. Thomas Dunphy, a friend of the Meyers, testified that he had traveled the Wagner Road since 1933 and that he had never seen a fence, chain or any obstruction of any kind across that road. He stated that before the war he used the road quite often, and after the war on an average of once a week. He stated that when the Meyers operated the beach, the road was used as much as ten times a day.
Mr. A. J. Kohler testified that he visited at the Meyers' home in 1934 and used the Wagner Road about once a week during the summer of that year. He also stated that he had traveled that road in subsequent years for the purpose of visiting at the Meyer house, at least once a week in 1936, and had never seen any obstruction across the road. On cross-examination, Mr. Kohler testified that he had been traveling that road regularly, as it was at present established, since 1935. He further stated:
"Q. There has been no change during that period? A. No change that is visual, that I could notice.
* * * * * *
"Q. I want to know whether the private road that intersected with the county road is the same road you have known throughout the years that you have traveled it? A. I would say it is. If it has changed two feet or six inches one way or the other I am not positive about that."
Joe Reibold testified that he had traveled the Wagner Road for twenty-three to twenty-five years and that he had never seen a fence across that road. He further stated that the Corisande Hill Road had been located through there for thirty-three to thirty-five years. He also stated he had seen others using the Wagner Road. On cross-examination, Mr. Reibold testified:
"Q. Did you ask Mr. Wagner if you could use that road? A. Sure, he told me I could go through.
"Q. That was the only reason you went through, because Mr. Wagner told you to? A. Yes, sir."
Mr. E. A. Miller, who with plaintiffs Mr. Mrs. Meyer operated the Corisande Beach from 1932 to 1942, testified that since 1932 he traveled the Wagner Road five or six times a year and had never seen a fence or chain across the road until recently. On cross-examination the witness testified that when they operated the beach he probably traveled the road two or three times a week during the summer months. He further testified that he had never secured permission from Mr. Wagner or the other land owners to use the road.
Plaintiff William Henry Wagner testified he owned land just west of that belonging to Gregor Wagner; that he acquired his property first under lease in 1935 or 1936, and later acquired ownership; that he started to build on the land while he had it under lease, during which time he used the road in question sometimes once a day. He also testified he sometimes used the road through the salt marsh when the road was dry. He further testified that he had used the road in dispute continuously until the fence was recently built across it.
Defendant Gregor Wagner testified that in 1896 he built the road in question from his place to the Meyer place and south to the Everett place, but did not connect it with the county road; that there was no county road there at the time he built this road; that he built the road to the Everett place to gather his crops; that the road through the Meyer place was his only way out from his property at the time he built the road; that the first time the road in dispute connected with the county road on the south end was in 1936, and the connection was made by defendant Bernard Everett who changed the road at that time; that the distance from the present location of the road to the former location is approximately thirty or forty yards, and that the wagon ruts are still there to show that it was just a field road. Gregor Wagner further testified that he gave Mr. Meyer permission to use the road when the latter owned the beach; that Mr. Meyer always wanted an easement, but did not want to pay for it; that Meyer asked for an easement quite a few years ago; that when his (Wagner's) wife was ill, Mr. Meyer tried to put some gravel on the road; that Mr. Meyer pulled a grader in without consent and attempted to grade the road, but he (the witness) and his wife and daughter ran him out; that the grader was brought in by Ralph Shepardson and Ed Miller; that in 1946 a fence was placed across the road in question which remained closed from September, 1946, to January, 1947; that he told Mr. Meyer that Mrs. Wagner would not sign an easement; that from 1938 to 1940 no one used the road other than the Wagners and Everetts, and that no one went through "from '42 on."
Defendant Bernard J. Everett owns land west of Gregor Wagner's property, which he purchased from Frank Wiljeck in 1938. The road which is in dispute passes through the Everett property and connects with the county road. Everett testified that the county road was built in 1937, and that he himself connected the Wagner Road with the county road in 1938 so that he could get from his house to the county road. He stated that his house was 200 feet from the highway and about two city blocks from his father-in-law's residence. Everett further testified that there was no public travel on the Wagner Road between his house and his father-in-law's home prior to the time he connected the road with the county road; that the road in dispute was used to bring the crops out of a field beyond the Everett house; that Mr. Wagner's family always used the road through the Meyer place, and that he himself used that route for two years because the county road at that time was impassable. The witness further testified:
"There was a fence across there in 1946, running from the corner of Gregor Wagner's house, running due north along the edge of his alfalfa field until it connected with his pasture fence. * * * That fence was across there from the first part of September until in January.
* * * * * *
"Q. Was there any travel at all through there during that five months' period? A. No, sir, none whatever."
Mr. Everett further testified that there was a dispute between Mr. Meyer and Gregor Wagner the first part of July, 1938, when Mr. Meyer attempted to obtain an easement over the road now in dispute; that every summer there was a stationary fence across the road forming a wire gap to let the cattle run back and forth; that this fence would be up from May until September; that there is a road going through the Meyers' field to the county road which was formerly used, but is now, as has been, blocked off for the last ten years; that in the latter part of March, Ralph Shepardson attempted to dump some gravel on the road in dispute and that he was refused permission to do so; that from 1938 to 1940, due to the difficulty between Mr. Meyer and Mr. Wagner, Mr. Meyer did not use the road in dispute.
On cross-examination, Mr. Everett testified that he was the person who put the wire fence and chain across the road; that in 1946 the temporary fence was put across the road and that Mr. Meyer was not using the road at that time; that this temporary fence was not kept there permanently because the field was ploughed and "put in corn"; that this temporary fence was at the same place the present fence is located; that Meyer did use the road a little after 1946; that Mr. Wagner put culverts in the road; that Mr. Meyer never did any kind of work on the road; that there was some difficulty in 1948 about an easement; that after this difficulty Wagner permitted Meyer to use the road; that the Wagner Road has actually been connected with the county road since 1938; that prior to 1938 Meyer got to the county road through the old road and never came through his (Everett's) place at any time; that there was no road to the county road from 1933 to 1938; that Mr. Wagner, to get out from his place, went out past Wiljeck's; that the road north past the Meyer place had been there since 1896, as long as there has been a family there; that the Wagner Road has not been used much by many people since 1938, due to the fact that there were gullies and ditches washed out in it.
Mrs. Lucille Everett, a daughter of Gregor Wagner, testified that until the road in dispute was opened past their house, their road was north toward the Meyer place and out the Wiljeck Road. She stated that the Wagner Road was connected to the county road in 1938. She further stated that she never saw Mr. Meyer use the Wagner Road before it was connected with the county road. The witness corroborated the testimony of her husband concerning the temporary obstruction of the road in 1946 and Meyer's attempt to grade the road. She said Meyer told her he wanted to have an easement and wanted to grade and gravel the road. She further testified that her mother told Meyer that she didn't want any easement and did not want anybody going through. She further testified that in 1940 Meyer talked to her father and asked if he could go through on the road, and that he traveled it about once a week after that to bring in groceries. She also stated that she had seen Mr. Shepardson, Mr. Miller, and Mr. Reibold each travel the road a couple of times, and that she saw Mr. Kohler once when he came to collect for the Red Cross. She stated she had never seen Mr. Dunphy.
On cross-examination, Mrs. Everett testified that she had never seen Meyer travel the road prior to the time he brought in the grader in 1938; that if he used the road prior to that time she never saw him; that when he brought in the grader in 1938 he was told he could not travel the road; that people traveled the road only with the permission of the Everetts or the Wagners, and when they wanted to use the road they always got permission from her, Gregor Wagner, or Ed Wagner; that the road was never used except with express permission.
Ed Wagner testified that the road formerly went north from his house and was known as the Wiljeck Road; that several years after Mr. Meyer acquired property there, in 1937 or 1938, the county road was built; that the road going south from Gregor or Wagner's house was used only for gathering crops and just went into the field since there was no county road to connect with it; that after Everetts moved in, the Wagner Road was connected with the county road; that he helped put up the fence in September, 1946, and helped take it down in January, 1947, and that there was no travel on this road during that time. On cross-examination, the witness testified that the fence was put up to keep the stock in the field. He further testified that Mr. Meyer's method of ingress and egress from his land was by way of the Wiljeck Road and that he used the road in dispute only once in a while. He further stated that the road in question has been in existence since the county road was built in 1937 or 1938.
Matilda Hunkler, a daughter of Gregor Wagner, testified that the road south from her father's place was just a field road and was not connected with the county road until the Everetts moved onto their land. Before that no one used the road other than the Wagner family. She further testified that to get from her father's house to the main road one went by the Meyer house past Wiljecks. She also stated that a fence was put across the road in September, 1946, and remained there until the following January or February, during which time nobody traveled the road.
William Kennedy also testified as to the existence of a wire fence across the road in 1946.
Appellants' first point is that the petition is fatally defective in that it does not meet the requirement of certainty of averment; that there is no description of the road in question of sufficient definiteness to locate it, either as to its width, length, or its location on the property described in the petition.
In their petition, plaintiffs set out the legal description of their property. It is then alleged that:
"Plaintiffs allege that they and their predecessors in title have gained ingress and egress to and from their respective properties herein above particularly described at all times for a period of approximately sixteen years prior to the 10th day of April, 1949, by traveling along, upon and over a certain roadway extending from the above described premises, owned by plaintiffs in a southwest direction to the Corisande Hill Road.
"Plaintiffs further allege that said private roadway has for a period of forty years passed through and been located upon the property owned by the defendant Gregor Wagner, and for at least sixteen years prior to April 10, 1949, said roadway was traveled extensively by plaintiffs, their predecessors in title and the public generally."
Where one seeks a decree establishing an easement in his favor in the lands of another the complaint should describe the easement so as to show its nature, extent and location in order that definite decree may be entered, but it is sufficient to use such descriptive terms as would enable a person going upon the land to find and identify the way by reference to such terms. Conley v. Brewer, 85 W.Va. 725, 102 S.E. 607.
The relief sought by plaintiffs in this action was not for the establishment of an easement, but for the abatement of a particular alleged obstruction erected by defendants over an existing roadway on defendants' land in which plaintiffs claim an easement, and for a permanent injunction enjoining defendants from interfering with the free and unobstructed use of said road by the plaintiffs. There was no issue between the parties as to the existence and present location of the roadway in question. The issue was not as to its location, but as to the character of the use — whether adverse or permissive. The proof showed that the major part of the road, that is, that portion between the Meyer place and Everett's land, had been in existence since 1896, and, according to defendants' own evidence, was extended to the Corisande Hill Road in 1938. The road, according to the evidence, was open, visible, and in use by all the parties for many years prior to the bringing of this suit.
No motion was filed to make the description in the petition more definite and certain. In our opinion, considering the character of the action and the issues raised by the pleadings, the description as given was sufficient, especially after judgment, and cannot be attacked for indefiniteness for the first time on appeal.
Appellants next contend that the evidence is insufficient to justify the relief sought. In support of this contention it is urged that whatever use was made of the road in question was permissive and not adverse.
The evidence on the part of plaintiffs shows an open, continuous, visible and uninterrupted use of the road in question for a period of more than ten years. Upon this showing, the burden was cast upon defendants to show that the use was permissive rather than adverse, if they claimed it to have been so. Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571; Smith v. Santarelli, Mo.App., 207 S.W.2d 543.
Gregor Wagner testified that he gave Mr. Meyer permission to use the road when the latter owned the beach, and Mrs. Lucille Everett testified that when anyone wanted to use the road they always got permission from her or her father, or Ed Wagner. This evidence presented a question of fact for the trial judge, which he resolved in favor of the plaintiffs. Considering the testimony adduced by plaintiffs as to the character of the use of the roadway in question, and giving due deference to the finding of the trial court on this issue of fact, we are of the opinion that the trial court was right in refusing to believe this testimony.
Appellants further urge that the testimony that Mr. Meyer attempted to buy a right-of-way from Mr. Wagner, and his attempt to grade the road, shows that whatever use was made of the roadway was permissive. When Mr. Meyer was asked if he attempted to buy a right-of-way from Mr. Wagner, Meyer replied that he had talked to Mr. Wagner about changing the road, and stated "that the proper place for his road would be back of his smoke house or back of his field. He was satisfied to leave it where it was. He said it didn't bother him and it didn't bother us, and we continued to use it that way."
In our opinion, this evidence does not show that plaintiffs were using the road with the permission of the owner. It merely shows that Meyer realized that, without the consent of Gregor Wagner, he had no right to change to a new location part of the road over which he claimed an easement. Nor did the testimony concerning the attempt to grade the road show a permissive rather than an adverse use. Meyer denied that he undertook to grade the road in 1938, and stated that, as far as he could remember, the grader incident related to the change in the roadway above mentioned. Mr. Meyer stated that he did not grade the road because Mr. Wagner was satisfied with it where it was then located. The most reasonable inference to be drawn from this testimony is that in order to change the location of the roadway it was, of course, necessary to do some grading, and that when Mr. Wagner refused to permit the change, Meyer abandoned the project.
The evidence adduced by defendants that the adverse use was interrupted by the placing of barriers across the roadway each summer, and by a fence constructed in September, 1946, which remained until January, 1947, was successfully refuted by the testimony of plaintiffs and that of several disinterested persons who testified in the case.
It is our conclusion, from an examination of the whole record, that the trial court correctly decided this case. The judgment appealed from is affirmed.
McCULLEN and BENNICK, JJ., concur.