Sanford v. Kern

Decision Date27 November 1909
Citation122 S.W. 1051,223 Mo. 616
PartiesLINUS SANFORD, Appellant, v. JOSEPH KERN
CourtMissouri Supreme Court

Appeal from Cape Girardeau Court of Common Pleas. -- Hon. B. F Davis, Judge.

Reversed and remanded (with directions).

Oliver Oliver & Oliver for appellant; Linus Sanford, pro se.

The road was used, worked and occupied in every way a road could be from the date of the purported contract in 1889 to the fall of 1905, continuously, under claim of right, and the appellant has acquired a perfect easement of way by prescription. A right to a private way acquired by adverse user is a vested right, and not a license. Washburn on Easements (3 Ed.), p. 135; Powers v. Dean, 112 Mo.App. 288. 2nd. The road was fenced off, open, worked and used by the public and this respondent during the lifetime of English, under the purported contract, and without any objections from him for six years prior to his death, while this fence was necessary to protect his farm. Then English and all claiming under him, with notice, are estopped from claiming said strip of ground. The statute commenced to run during the life of English, and his death and vesting of the estate in Mrs. Baldwin did not stop it. State v Macy, 72 Mo.App. 427. 3rd. Where a party spends money and labor in consideration of the license, the same cannot be revoked, and especially in this case, after sixteen years. Powers v. Dean, 112 Mo.App. 288; House v. Montgomery, 19 Mo.App. 171; Baker v. Railroad, 57 Mo. 265; School District v. Linsay, 47 Mo.App. 134; Gibson v. St. Louis A. G. M. Co., 33 Mo.App. 165; Chiles v. Wallace, 83 Mo. 85.

Wilson Cramer for respondent.

(1) There never was a conveyance of the strip of ground occupied as a lane and its use, as shown, was simply permissive. The owner of the land had the right to revoke the license at any time. (2) Mrs. Baldwin, being without title, could not bind the estate by any agreement she might make. Her conveyance after she acquired title under the will of her father, in 1895, amounted to a revocation of the license she had given. (3) The evidence utterly fails to establish an easement by prescription. There is nothing to show that plaintiff was undertaking to hold the strip adversely to the owners of the land. For aught that appears he always recognized the rights of the several owners. Anthony v. Building Co., 188 Mo. 704.

OPINION

LAMM, P. J.

Suit to establish a right in plaintiff to a private way in Cape Girardeau county, and to remove obstructions put in the way by defendant. The ultimate facts relied on to show a user as of prescriptive right, or adverse possession under a claim of right, are set forth in the petition with sufficient particularity to permit the proof put in. As no point is made on the sufficiency of the petition, it will not be further noticed.

The answer raised the general issue.

Judgment for defendant. Plaintiff appeals.

There is little or no dispute on material facts. In 1889 plaintiff owned a body of timber land (the rise of one hundred acres) in section 30, township 32, range 13, with no access to it by public road or private way. A half mile east, following the meandering of Hubble Creek, ran an old north-and-south public road known as the Jackson-and-Pocahontas road. Between that road and the south part of plaintiff's woodland, lay a tract of cultivating land we will call A. North of and bordering A, between the north part of plaintiff's land and said public road, lay another tract we will call B. There was an east-and-west partition fence between A and B. At that time one Flynn owned tract B, and Nannie E. Baldwin, the daughter of Thomas W. English, was in possession of tract A. Whether she was covert or discovert at the times in hand is dark. As a matter of fact she seems to have claimed the land, but the legal title was in her said father. She did not reside on it but for several years, by her father's consent, occupied it through her tenants and, with his consent, exercised acts of proprietorship over it, contracting with relation thereto, and enjoyed the rents and profits. She was commonly reputed to be the owner and Sanford thought she was. Evidently she held the land under some domestic arrangement not fully developed. Whether by a gift resting in parol accompanied by possession, or whether it was turned over to her because of, or anticipating, a will devising the land to her, or some undisclosed contract, we do not know. At any rate, about five years later Mr. English died. At that time it was found he had made his will giving Nannie tract A.

In 1889 the party fence between tracts A and B had run down at the heel through decay and inattention. Lured by growing crops and a broken fence, the Flynn stock trespassed on the crops of Nannie's tenant and wrangles and squabbles sprung up between the Flynns and her tenant, Fullenwider. At this immediate time Sanford was clearing his woodland to make a farm of it and desired a right-of-way opening it to the Jackson-and-Pocahontas public road. To that end he opened negotiations with Nannie, thinking her the owner of tract A, and made a proposition to her to furnish the labor and material for a ten-rail fence in consideration of a private way thirty feet wide and half mile long off of the north end of tract A, running from his woodland to said road. The proposition was accepted by her. There is evidence indicating it was considered by her and her friends, including her father, a good proposition, in that it would furnish her protection against the ravages of the Flynn stock, fence tract A securely in and keep the cows out of her corn. Accordingly, she instructed her tenant, Fullenwider, to stake out a strip a half mile long and thirty feet wide off said north end and act in her stead in accepting the fence Sanford was to build as per contract. Presently, at his own expense in labor and rails, he built a new ten-rail fence on the line marked off by Fullenwider, "every corner locked" or "cross-railed." We assume it was an old-fashioned, "stake-and-rider" worm fence. Mrs. Baldwin testified that Sanford was to furnish all the rails but failed to do so, using some rails out of her half of the old partition fence. As she did not live on the place, the record indicates that her testimony in that behalf was not based on personal knowledge. Contra, there is substantial evidence from her tenant, Fullenwider, and from parties who built the fence for Sanford, that he furnished his own rails from his own land, fully performed his contract, and that Fullenwider accepted the fence. There is other uncontradicted testimony to the effect that a thirty-foot lane was then opened, fenced on both sides and remained an open, used lane from 1889 until a year and a half before the filing of the petition in this cause, August 29, 1905, say, fourteen years. The negotiations between Sanford and Mrs. Baldwin seem to have been conducted by correspondence (now lost) and the contents of letters were proved by parol. Fullenwider testified without contradiction that the old line fence was very bad; that when he rented the farm from Mrs. Baldwin the poor fence was objected to by him; that she promised to fix it but did not; that the Flynn stock jumped in and annoyed him; that in September, 1889, (quoting), "she wrote me that Mr. Sanford had made her a proposition that he would build her a fence if she give a road through here, she asked me what I thought about it, in a letter." In response to that letter he told her "it would be a very good thing because they were wrangling about the stock." He further testified: "I know Mrs. Baldwin was to give Mr. Sanford thirty feet of land through there for that fence and I know that because I had letters from her." Again, he testified: "She wrote me that if Mr. Sanford would build her a good fence, ten-rail fence, . . . for me to stake off thirty feet, which I did, and for me to receive the fence. Mr. Sanford built the fence according to contract and I received it and wrote to her."

There was other testimony, substantially uncontradicted, to the foregoing effect, and we think it satisfactorily established that in consideration of Sanford's building the fence to protect her tenant's crops and inclose her own land for renting and cultivation purposes, Mrs. Baldwin agreed to give and did give him said roadway from his woodland to the Jackson-and-Pocahontas public road.

It seems after the lane was open and in use, Sanford discovered the legal title to the strip was in Mr. English. While on the stand and being examined in chief, it was sought to show the substance of a conversation between the two. Objection was lodged against this testimony (English being dead) and sustained. Subsequently, on cross-examination, it cropped out that when Sanford went to English, he, English, told him to use the road and keep it in repair; that Flynn (quoting) "ought to have given part of the lane but it was the best thing Nannie could do;" further, that when Sanford found out that Mrs. Baldwin was only to get the land at Mr. English's death, and, as said, went to see him, he, English (quoting), "laughed and said the road ought to be through there and that none of them would interfere with me." We think the testimony establishes that from 1889 up to the time the road was closed by Kern, Sanford on all occasions kept the roadway in repair by working it and repairing a bridge thereon (except that the Flynns helped a little in working a part of the road at a certain time).

There is no testimony on the value of the thirty-foot strip of land (something less than two acres), in 1889; nor as to the cost at that time of making and hauling rails and building a good ten-rail fence one-half mile long. There is nothing to show it was not a fair...

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