Jordan v. Parsons
| Decision Date | 18 February 1947 |
| Parties | Henry Jordan, Respondent, v. Lola Parsons, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Madison County; Hon. Norwin D Houser, Judge.
affirmed.
Melvin Englehart for appellant.
(1) Respondent failed to prove by convincing evidence that the roadway described in his petition had been used openly adversely and continuously by the general public in the same location since 1877. (a) This case was tried without jury and the Appellate Court must review all of the evidence. Davidson v. Eubanks, 189 S.W.2d 295; A. J. Meyer & Co. v. Schulte, 189 S.W.2d 183; Harlan v Blume, 190 S.W.2d 273. (b) Respondent has the burden to show by convincing evidence that the owner of the land whereon the road in question is located intended to appropriate the land to public use. School District No. 84 v. Tooloose, 195 S.W. 1023; Baker v. Squire, 143 Mo. 92, l. c. 98, 44 S.W. 792; Vossen v. Dantel, 116 Mo. 379; Heitz v. St. Louis, 110 Mo. 618; State, ex rel. Halworth, 124 S.W.2d 653; Birkey v. Burguard, 146 S.W.2d 65; Gilliland v. Rutt, 63 S.W.2d 199; State ex rel. Eddis v. Shain, 152 S.W.2d 174; Riebold v. Smith, 150 S.W.2d 599. (2) The Respondent had the burden to show the establishment and continued adverse use of the road by convincing proof. Strong v. Sperling, 205 S.W. 266, 200 Mo.App. 66; Anson v. Tietze, 190 S.W.2d 193. (3) The burden of proof can not be sustained by the introduction of hearsay evidence. It was error to permit Respondent to prove his case by hearsay evidence. German's Evangelical Bethel Church of Concordia v. Reith 39 S.W.2d 1057, 327 Mo. 1098, 76 A. L. R. 604; Sconce v. Jones, 121 S.W.2d 777, 343 Mo. 362; State ex rel. Metropolitan Life Insurance Co. v. Shain 121 S.W.2d 789, 343 Mo. 435; Gash v. Mansfield, 28 S.W.2d 127, 22 Corpus Juris 445-448; City of Maysville v. Truex, 235 Mo. 619, l. c. 628; St. Louis Public Schools v. Risley's Heirs, 40 Mo. 356, l. c. 371; State v. Kurtz, 294 S.W. 117; State v. Breckenridge, 282 S.W. 149, 219 Mo.App. 587. (a) If the roadway was established, it was lost by abandonment. State v. Bishop, 22 Mo.App. 435, l. c. 440; Rosenberger v. Miller, 61 Mo.App. 422; McEneny v. Gerlach, 142 S.W.2d 1095; Odom v. Hook, 177 S.W.2d 165, l. c. 171; Johnson v. Rasnus, 141 S.W. 590, 237 Mo. 586. (4) The refusal of the trial court to permit the Appellant to offer additional evidence after the case was closed but before any judgment was entered, was an abusive discretion and error. Bickel v. Argyle, 121 S.W.2d 803, 343, Mo. 456; Buck v. St. Louis Union Trust Co., 267 Mo. 644, 185 S.W. 208; Dietrich v. Brickey, 48 S.W.2d 69.
Robert I. Meagher for respondent.
Where a public road by prescription is established and abandonment is relied on as a defense, it must be shown by clear and cogent proof that those who had a right to abandon it did so voluntarily and with a clear intention so to do, and it is not dependent on the acts of the owners but on the acts and intention of the public. McEneny v. Gerlach et al., 142 S.W.2d 1095; Rosendahl v. Buecker, 27 S.W.2d 471. Mere non-use will not operate to discontinue a legally established road unless coupled with affirmative evidence of a clear intent to abandon. State v. Culver, 65 Mo. 607; California Special Road District v. Bueker, 282 S.W. 71. Where the public claims an easement by prescription and shows an open, continuous, visible and uninterrupted use for a period equivalent to the Statute of Limitations, the burden is on the defendant to show the first use was permissive, and if he fails to do so, the law will raise the presumption of a grant and that the use was adverse. Rosendahl v. Buecker, 27 S.W.2d 471; Strong et al. v. Sperling et al., 200 Mo.App. 66, 205 S.W. 266. Slight changes in road will not defeat right of public. Strong et al. v. Sperling et al., 205 S.W. 266; Berry v. St. Louis and San Francisco Railroad Co., 124 Mo.App. 436; Faulkner v. Hook, 254 S.W. 48. Hearsay evidence is admissible to prove the extent character and existence of public rights as regards the location and boundaries of things of a public nature as of a highway, street or road. St. Louis Public Schools v. Risley's Heirs, 40 Mo. 356; City of Maysville v. Truex, 235 Mo. 619; State v. Kurtz et al., 294 S.W. 117.
This is an appeal by Lola Parsons, defendant below, from a judgment of the Circuit Court of Madison County, Missouri, enjoining her from obstructing a road which runs across her land and from interfering with the use thereof by Henry Jordan, plaintiff below, and the general public.
The appellant is the owner of 20 acres of land (W 1/ 2 SE 1/ 4 NW 1/ 4 Sec. 12, Twp. 33 N, R. 6 E, Madison County, Missouri), and the respondent is the owner of 40 acres of land (SE 1/ 4 NW 1/ 4 Sec. 13, Twp. 33 N, R.6 E Madison County, Missouri). The respondent's land is one mile south of that owned by appellant. A public road known as the Dry Creek Public Road, running in a general east-west direction crosses the north end of appellant's land. The roadway involved in this action runs in a northwest-southeast direction across the southwest corner of appellant's land, and then runs in a general southern direction to and across the respondent's land, and intersects with a road running in a general northwest-southeast direction.
Respondent moved onto his land in 1935, and used the roadway across appellant's land until about March 7, 1945, when appellant closed the roadway by fencing her land. Respondent testified that the public generally used this road from the time he purchased the farm in 1935 until it was closed by appellant in 1945. Respondent also offered evidence to the effect that the road in question had been in continuous, uninterrupted use by the public since 1876, and that during said time the road had been in the same location. Some of this evidence was hearsay testimony and was admitted by the court over the objection of the appellant.
Between the lands of appellant and respondent was a tract of land known as the Dunaha farm, with the Dunaha farm house located about half way between the appellant's farm and the respondent's land.
Appellant's testimony tended to show that from 1876 to approximately 1912 or 1914, the roadway in question was in its present location from the respondent's land to the Dunaha farm, but, that at the Dunaha farm house it turned to an east and northeast direction, and that it did not follow the same course as the road in question, which continues north from the Dunaha farm house for a quarter of a mile to appellant's land, and then across the southwest corner thereof.
According to the testimony of appellant's witnesses, whenever persons had occasion to travel the road north from the land of the respondent, during the period from 1876 to 1912 or 1914, they would turn east upon reaching the Dunaha homestead if going to Fredericktown, and, if not going to Fredericktown, they would turn west over a road running in a northwest direction. Neither road passed over the appellant's lands. The road which turned west at the Dunaha house thereafter turned northwest and then north, and ran a few yards west of appellant's land until it intersected the Dry Creek Road, which ran east and west across the north end of appellant's farm.
A number of witnesses testifying on behalf of the appellant stated that prior to 1914 an orchard and a cornfield were located north of the Dunaha farm house, and that no roadway passed through this cornfield and orchard prior to that time. In 1927, Robert Wench lived on respondent's farm. He died prior to the time of the institution of this suit. His son, Henry Wench, and a number of other witnesses, testified that all of the land north of the Dunaha homestead and south of appellant's land was in timber, and that in the summer of 1926 no roadway existed across this mile, or across appellant's land, as claimed by respondent, but that between the Fall of 1926 and the Spring of 1927, Robert Wench cleared the road through this timber, at which time the general public first began to travel across the land owned by appellant, and in this manner the roadway was established in 1927.
Witnesses offered by the respondent testified that the physical facts showed that the roadway in question across the land of the appellant evidence the fact that the road had been used for a long period of time. Witnesses for the appellant testified that the land between the Dunaha farm house and appellant's land was formerly a cultivated field, and that they had seen a fence around it showing that it had been used for cultivating crops.
Appellant complains of the reception of certain testimony on the ground that it was hearsay. The evidence complained of was testimony given by Charles Ray with respect to certain declarations made to him by his father, since deceased; and testimony given by Jesse Ballew concerning declarations made by his father and mother.
At the time of the trial, Charles Ray was 68 years old. He stated that 45 or 46 years ago he hauled lumber over the road in question, and that when he first went over the road it looked as if it had been used as a road for many years prior thereto.
The testimony objected to appears in the transcript as follows:
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