Leiweke v. Link

• Decision Date: 21 February 1910
• Citation: 147 Mo. App. 19,126 S.W. 197
• Parties: LEIWEKE v. LINK.
• Court: Missouri Court of Appeals

126 S.W. 197

147 Mo. App. 19

LEIWEKE v. LINK.

St. Louis Court of Appeals. Missouri.

February 21, 1910.

Rehearing Denied March 8, 1910.

1. EASEMENTS (§ 36) — PRESCRIPTION — EVIDENCE — SUFFICIENCY.

In an action to restrain the use of a private way across plaintiff's land, evidence held insufficient to show that the use of the road was begun or continued under a license from the owners of the land so as not to be adverse.

2. HIGHWAYS (§ 6) — PRESCRIPTION — DURATION AND CONTINUITY OF USE.

Where the public continued to use a private way across land for over 70 years, without objection of the owners, it became an established way and could not be closed by the owner of the land.

3. HIGHWAYS (§ 6) — PRESCRIPTION — DURATION AND CONTINUITY OF USE.

After the year 1847, when the limitation period of actions to recover real property was reduced to 10 years, the public might acquire an easement in a private way by 10 years' open, adverse, and uninterrupted use.

4. HIGHWAYS (§ 2) — PRESCRIPTION — MODES AND EXTENT OF USE.

Rev. St. 1899, § 9472 (Ann. St. 1906, p. 4347), providing that when a road has not been opened by order of the county court no lapse of time should divest the owner of the fee of his title unless there should have been public money and labor expended upon it, did not operate retrospectively, and did not affect rights in a road that had been traveled for 40 years before its enactment.

5. EASEMENTS (§ 10) — PRESCRIPTION — RIGHT OF WAY.

A private way may be acquired by prescription, and where defendant and his ancestors occupying the farm now owned by him have used a way across plaintiff's land as appurtenant to their land for three generations without objection or interruption, and it does not appear that their use was under a license from the owners of the land, defendant has an easement in it as a way and cannot be restrained from using it.

Appeal from Circuit Court, St. Louis County; Wm. F. Broadhead, Special Judge.

Action by Anton Leiweke against Andrew J. Link. From a decree for defendant, plaintiff appeals. Affirmed.

J. C. Kiskaddon and R. L. Schackleford, for appellant. R. H. Stevens, for respondent.

GOODE, J.

The petition describes a road or way lying in St. Louis county, and extending from a public road known as "Wild Horse Creek Road" across plaintiff's farm to defendant's farm, alleges the latter, without leave or license, has entered on plaintiff's land, has used frequently and threatens to continue to use the way across said land for the purpose of passing to and fro with wagons, horses, and cattle, and at different places has wrongfully graded parts of the road or way, deposited on it broken stone or gravel, thereby depriving plaintiff of the use of part of his land, and threatens to continue this course of conduct to the irreparable injury of plaintiff. The prayer is for a writ of injunction restraining defendant, his agents, servants, and employés forever from entering on said way, using any way across said land for any purpose, or depositing thereon any stone, gravel or other substance. The farms of the two parties adjoin, and defendant's way of egress from his farm to the public road known as "Wild Horse Creek Road" is along the road in controversy across the southern portion of plaintiff's land into Wild Horse Creek road. After stating a general denial, the answer avers the way in question had been used by defendant and those under whom he claims for more than 20 years prior to the institution of the present action as a road to and from defendant's farm to Wild Horse Creek road, and defendant has acquired by prescription the right to use and occupy said road and keep it in repair. Prior to 1865 W. H. Coleman, who died during said year, owned the fee simple of the land over which the way in question extends. He devised the land by will to his wife for her life, with remainder over to his children. The interests of the remaindermen were conveyed to plaintiff before the death of the widow or life tenant, which occurred in 1905 when plaintiff became the owner of the entire fee. The evidence is harmonious and shows the way in controversy has been used by residents of the neighborhood and any one else who wished, time out of mind. Witnesses 72 and 75 years old testified it was a traveled road in their boyhood and as far back as they could remember, but exactly when it began to be traveled was not proved, and likely it has been since that portion of the country was settled. Certainly it has been continuously for sixty years or...