Bowzer v. State Highway Commission

• Decision Date: 06 April 1943
• Docket Number: 38259
• Citation: 170 S.W.2d 399
• Parties: BOWZER v. STATE HIGHWAY COMMISSION
• Court: Missouri Supreme Court

170 S.W.2d 399

BOWZER v. STATE HIGHWAY COMMISSION

No. 38259

Supreme Court of Missouri, First Division

April 6, 1943

Raymond G. Barnett, of Kansas City, and Louis V. Stigall, of St Joseph, for appellant.

George N. Davis and Chas. W. Shelton, both of Macon, for respondent.

OPINION

VAN OSDOL, Commissioner.

This case involves the title to a narrow tract of land lying south of and approximately parallel with the concrete pavement of U. S. Highway No. 36 on the Duck Creek bottom about one mile west of the city of Macon, Macon County, Missouri.

In the year 1924 one Clayton C. Wood owned land on the Duck Creek bottom to the north and south of the old county road, Macon to Bevier. The route of this old road was followed generally by State Route 8, now U. S. Highway No. 36.

Defendant appellant, instituted a condemnation proceeding in the Circuit Court of Macon County, September term, 1924, by which, it is alleged by defendant, the state acquired a perpetual easement for highway purposes in a tract of land right of way, throughout the condemnation proceeding and in the answer herein described as follows: Lying in the Southeast Quarter of the Northwest Quarter of Section 17, Township 57 North, Range 14 West, and described as follows: Beginning at a point 2054 Feet South of the Northeast corner of the Northwest Quarter of the Northwest Quarter of Section 17, Township 57 North, Range 14 West, which point is on the center line of State Highway U. S. Route 36, thence South 79deg. 09' East for a distance of 40 feet, taking a strip of land 30 feet wide on the South side of and adjacent to said line above described, continuing South 79deg. 09' East for a distance of 47.2 Feet, thence South 73deg. 43' East for a distance of 425.9 Feet, thence on the arc of an 8deg. curve to the left for a distance of 316.3 Feet, thence North 80deg. 59' East for a distance of 196.6 Feet, taking a strip of land 70 feet wide on the South side of and adjacent to said line above described.

The answer also pleads an easement by prescription in a tract of land 70 feet in width beginning at the east end of the tract described in the condemnation case and extending eastwardly along to the south of the projected center line of the roadway for a distance of 164 feet, thence, a tract 30 feet in width, continuing along and to the south of the same projection to the east line of the northwest quarter of section 17.

Through mesne conveyances from Clayton C. Wood, plaintiff, respondent, acquired, in the year 1940, lands in such conveyances and in the petition described as follows: That part of the Southeast quarter (1/4) of the Northwest quarter (1/4) of Section Seventeen (17), Township Fifty-seven (57), Range Fourteen (14), lying South of public road from Macon to Bevier, also commencing at the Northeast corner of the Northeast quarter (1/4) of Southwest quarter (1/4); Section Seventeen (17), Township Fifty-seven (57), Range Fourteen (14), West of 5th P.M., thence West on said line 20 rods, thence South 8 rods, thence East 20 rods, thence North 8 rods, to the place of beginning.

Plaintiff bought the land with the purpose of erecting improvements from which to serve motorists traveling on U.S. Highway No. 36 and constructed a filling station and 'concrete island' with pumps. The concrete island is located at 'about' the mid-point of an 8 degree curve in the north line of the tract described in the condemnation proceedings, and is 60 feet south of the center line of the pavement as now constructed. Defendant asserts that the concrete island is installed north of the south line of and on the right of way.

It should be determined whether the case is to be reviewed as one at law or in equity.

Plaintiff alleges ownership of land by grant and by possession adverse to the claim of the defendant, and that defendant's claim of title is based on an 'attempted' condemnation never consummated by judgment. The plaintiff does not ask an adjudication of title but prays that defendant be enjoined from interfering with plaintiff's possession and use. Plaintiff now urges that 'there is nothing in the pleadings to call for the exercise of equitable jurisdiction.' Whether the case is one at law or one in equity must be determined according to the issues tendered by the pleadings. Richards et al. v. Earls et al., 345 Mo. 260, 133 S.W.2d 381, and cases therein cited. Where title is in issue a party, ordinarily, cannot invoke injunction against trespass. 28 Am.Jur., Injunctions, § 132. See also Echelkamp v. Schrader, 45 Mo. 505. In the present case, defendant alleges a permanent easement by condemnation and by user for road purposes in portions of the lands in the petition described and asks an adjudication of title this relief is adequately afforded in a court of law. However, defendant further alleges that plaintiff maintains a concrete island on the land in which the state is alleged to have the easement and that the concrete island is an obstruction and so constitutes a nuisance; the defendant prays that plaintiff be restrained from the maintenance of the alleged nuisance and for such orders as to the court may seem proper. This allegation of an obstruction on the highway is equivalent to the allegation of a public nuisance, a purpresture, a suit for the enjoining of which a court of equity will take jurisdiction notwithstanding legal remedies, State ex rel. Rucker v. Feitz, 174 Mo.App. 456, 160 S.W. 585; see also 25 Am.Jur., Highways, § 324. The case will be reviewed as one in equity.

The trial court adjudged the title to the land in the petition described to be in plaintiff, found that the state acquired the tract, right of way, by condemnation; that the southern boundary of the tract was approximately the line of the old fence, the southern border of the old county road, Macon to Bevier; and that the installations of plaintiff are south thereof, and off of the right of way. Testimony tended to show that the old fence line ran about 50 feet south of and generally parallel with the center line of the pavement.

It is our duty to review the evidence, determine its weight and sufficiency, and make our own finding with due deference to the conclusions of the chancellor. More material facts are set out in the further course of the opinion.

Plaintiff pleads that the condemnation case was only an attempted one as 'it was never carried through to judgment.' The records of the Circuit Court of Macon County do not show a formal judgment creating an easement in the state of Missouri. The evidence is that the records of the Circuit Court of Macon County show: order of circuit court directing filing of petition in condemnation, summons duly issued and served, appointment of commissioners, report of commissioners assessing 'No damage (No dollars)' to Clayton C. Wood, due notice to Clayton C. Wood of filing of commissioners' report, and no exceptions filed to commissioners' report by Mr. Wood. As was stated by this court in State ex rel. Union Electric Light & Power Co. v. Bruce, 334 Mo. 312, 66 S.W.2d 847, 849, 'The procedure provided for by the statute now under discussion contemplates that the condemnor must set in motion all of the machinery necessary to award just compensation to the owners whose land is sought to be condemned without expense to the landowner. That purpose is fulfilled when the commissioners make their award assessing damages.' And, in the same case, 'If no objections or exceptions are made to the award, the case is at an end.'

The muniment of the easement, in the present case, is the regularity of the condemnation proceedings and no decree such as is urged by plaintiff is necessary to the creation of the easement in the state. St. Louis & K. C. Ry. Co. v. Donovan, 149 Mo. 93, 50 S.W. 286.

Of defendant's plea of an easement for highway purposes by prescription in the irregular tract of land contiguous to the east end of the tract described in the condemnation proceedings: evidence offered in support of the plea shows setting of markers along the southern side of this tract by defendant in the year 1930, and that the defendant's employees have kept the weeds mowed on the tract. There is no evidence that the public has ever used it in traveling; the travel has been confined to the roadway to the north. The chancellor, by inference, found against the defendant on this issue, and we defer to his finding.

Prior to the construction of the plaintiff's installations, plaintiff regraded and leveled an area south of the roadway with the approval of defendant. This regrading caused the drainage to pass around to the southward of the present site of the installations and off and away from the roadbed of defendant. A plat accompanied the application to defendant for approval of the project. The plat indicates the concrete island was to be set 82 feet south of the center line of the pavement. The south line of the right of way is shown on the plat at 70 feet south of the center line of the pavement. Defendant contends that the plaintiff was benefited by the grading and, it having been authorized by defendant as a result of the representation made in the application and plat, the plaintiff is now estopped from asserting the right of way is not as shown in the plat.

No evidence was introduced showing that the grading was detrimental to the defendant, nor that the public has suffered, or will suffer, any loss or inconvenience because of it. Rather does the evidence show that the roadbed is in better condition due to the grading, for the drainage is now, since the regrading, farther from the roadbed.

But it is contended that the application and plat constitute an admission against interest. Plaintiff from the witness stand explained that he had no copy of the plat at the...