Strong v. Sperling
| Citation | 205 S.W. 266,200 Mo.App. 66 |
| Parties | E. M. STRONG et al., Respondents, v. HERMAN SPERLING, et al., Appellants |
| Decision Date | 12 July 1918 |
| Court | Missouri Court of Appeals |
Submitted on Briefs June 6, 1918
Appeal from the Circuit Court of Cape Girardeau County.--Hon. Frank Kelly, Judge.
AFFIRMED.
Judgment affirmed.
Edw. D Hays for appellant.
(1) (a) In equity cases the appellate court will not be bound by the chancellor's finding of facts, but will review the whole evidence and pronounce the proper judgment. Fitzpatrick v. Weber, 168 Mo. 562-572. (2) (a) A highway may be established either: (1) By prescription, user or recognition (2) By statute or statutory proceedings in the exercise of the right of eminent domain; or (3) By dedication. 37 Cyc 17. (3) (a) As a general rule before a highway can be established by prescription, it must appear that the general public, under a claim of right, and not by mere permission of the owner, used some defined way without interruption or substantial change, for a period of twenty years or more. The use must be under claim of right. Where the use is merely permissive and not adverse, there is no basis on which a right-of-way by prescription can rest. For this reason some of the courts have held that the use of vacant, uninclosed land for twenty years by the public in passing and repassing will give them no prescriptive rights. The public cannot acquire a prescriptive right to pass over land generally, and where a highway is claimed by prescription, a certain and well-defined line of travel must be shown. Elliott, Roads and Streets, Ch. vl., p. 137. (b) It has been held that a highway cannot be established by prescription over vacant and uninclosed land. But the contrary has also been held. Doubtless stronger evidence would be required in such a case to show that the use was adverse and not without the implied consent of the owner. The presumption would be that the use was permissive. And the use would have to be confined to some definite tract and not distributed over a number of tracts occupying a wide strip of land or shifting from one line to another. Lewis on Eminent Domain, sec. 486; Lieber v. People, 81 P. 270; Friel v. People, 35 P. 576; Ottawa v. Yentzer, 160 Ill. 309; O'Connel v. Railroad, 184 Ill. 308; Bethel v. Bruett, 215 Ill. 162; Engel v. Hunt, 50 Neb. 358; Petterson v. Waske, 45 Wash. 307. (4) (a) The mere use of a road by the public for however long a time, will not constitute it a public road. Commonwealth v. Kelley, 8 Va. 632; Dicken v. Liverpool S. & C. Co., 41 W.Va. 511. (b) Mere user by permission of the landowner of a highway over his land cannot establish a right to a public way, unless such user is shown to have been under a claim of right and not simply by permission. Sharp v. Mynatt, 69 Tenn. 375. (c) Where it appears that land has been used by the public as a road, but that no claim has been made by the county or the public to the exclusive use of such land as a road, and it does not appear that such use was otherwise than permissive, no prescriptive right is acquired in the lands for the purposes of a road. Cunningham v. San Saba County, 1 Tex.App. 480; Cunningham v. San Saba County, 20 S.W. 941. (5) (a) The mere acquiesence of the owner of wild, uninclosed timber land in public travel over it, for more than twenty years, is not sufficient to give the public a title to any part of it. Fox v. Virgin, 5 Ill.App. 515. (b) The public cannot acquire any right to a road over vacant and uninclosed lands by use alone for twenty years. Fox v. Virgin, 11 Ill.App. 513. (c) Mere travel by the public over uninclosed private land in a tortuous course, on which no substantial improvements have been made by the public, will not constitute a highway by prescription, since such travel does not show that the land is not so used by permission of the owner. Town of Brushy Mound v. McClintock, 150 Ill. 129. (6) (a) Mere user of another's land by the public as for a highway is not sufficient of itself to establish a highway by prescription. The user must be adverse and hostile to the rights of the owner, and under color or claim of right so to use the land. A user by license or permission of the owner of the land sought to be impressed with a public easement of travel is not adverse, and affords no basis for prescription, where the landowner does not consent to the user of his land by the public as of right. 37 Cyc. 25. (b) Where the owner of property never ceased to exercise dominion over a road on the property, the public could acquire no precriptive right thereto. Jones v. Phillips, 59 Ark. 35; Jones v. Phillips, 26 S.W. 386. (7) (a) The public cannot acquire a prescriptive right to pass over a tract of land generally; in order to create a highway by prescription the user must be confined to a definite and specific line or way. This is especially true where the locus in quo consist of wild or uninclosed lands. 37 Cyc. 22. (b) The public cannot acquire a prescriptive right to pass over a tract of land generally, but it must be confined to a specific line or way. Gentlemen v. Soule, 32 Ill. 271; Bryan v. East St. Louis, 12 Ill.App. 390. (c) In order to establish a public highway by prescription over uninclosed lands, such use must have been confined to a definite and specific line, and must have been adverse to the owner, in the absence of any act by him from which it can be fairly inferred that he intended a dedication to the public. City of Ottawa v. Yentzer, 160 Ill. 509. (d) To establish a road by twenty years uninterrupted, adverse enjoyment, there must be a certain well-defined line of travel over the entire route for all that time. South Branch Co. v. Parker, 41 N. J., 489. finding of facts, is to the effect that no public money or labor has been expended on the road in question within the last ten years; in fact, it does not appear that any public money or labor have ever been used in the maintenance of the driveway in controversy. Therefore plaintiffs cannot rely on that method of having said road declared a public highway. Sec. 10446, R. S. 1909; Copeland v. Pyrtle (Mo. App.), 199 S.W. 992. (b) To make the use of land for a road by the public adverse as to the party who holds the papers title, some act must be done showing a claim of right, such as working the road, attaching it to the road district, or some other act of the proper authorities recognizing it as a highway. State v. Joyce, 19 Wis. 90. (c) The fact that a road claimed by prescription had never been worked, repaired or taken control of by the public or the overseers is an important element of evidence against a claim of right, though not conclusive. Sharp v. Mynatt, 69 Tenn. 375. (d) The fact that a road has not been repaired by the authorities may be evidence tending to show that the corporation does not regard it as a highway. This will not be the case, however, if it appears from the nature of the ground that the road has needed no repairs. Town of Lewiston v. Proctor, 27 Ill. 414. (e) A road over uninclosed woodland is not shown to be a highway by proof of user during the prescriptive period, without evidence that the public authorities at any time during such period worked or repaired it. Harriman v. Howo, 28 N.Y.S. 858.
A. M. Spradling for respondents.
(1) The continued, open, adverse use for the purpose of a public road for the period of some forty to sixty years is sufficient to establish the easement of the respondents and the public thereon for the uses and purposes of a public road. Patton v. Forgey, 171 Mo.App. 7; Leiweke v. Link, 147 Mo.App. 26; Lee v. Railroad, 150 Mo.App. 182; Sikes v. Railroad, 127 Mo.App. 321; Berry v. Railroad, 124 Mo.App. 436; Dowe v. Railroad, 116 Mo.App. 558; Scruggs v. Railroad, 69 Mo.App. 298. (2) The statute of 1887, section 9694, Revised Statutes 1899, providing that no lapse of time shall divest the owner of his title to the land unless, in addition to the use of the road by the public for a period of ten consecutive years there shall be public money or labor invested, does not apply in this case, because the rights of respondents and the public had acquired before the enactment of this statute. Patton v. Forgey, 171 Mo.App. 6; Sikes v. Railroad, 127 Mo.App. 326. (3) If the nuisance causes special or peculiar injury to an individual, different in kind and not merely in degree to the injury of the public at large, and the injury is substantial in its nature, the individual may have his civil remedy. Patton v. Forgey, 171 Mo.App. 8; Rude v. St. Louis, 93 Mo. 408; Bailey v. Culver, 84 Mo. 538. (4) The fact that the road has been changed from its original place will not prevent the easement from attaching. Barry v. Railroad, 124 Mo.App. 438.
This is an action for a mandatory injunction to restrain defendants from closing up a certain road or driveway with gates.
The defendants own a farm in Cape Girardeau County, located on the northwest quarter of section 13, township 31, north range 11 east. A road or driveway passes in a general north and south direction through this farm. The lands of defendants lie on either side of this road, the main body to the east, and consist of cultivated fields that have long been inclosed by fences. To the west of the road the land owned by defendants, prior to the occurrences here involved, was an uninclosed nine-acre field and timber tract. The field is at the extreme southwest corner of defendants' farm and west of the timber. It is triangular in shape, the apex to the north and near the north end of defendants' land, and the base is to the south and on a line corresponding to the center line of section 13, the southwest corner of this triangle being at the quarter section...
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