Zinser v. Lucks

Decision Date15 January 1951
Docket NumberNo. 41779,No. 3,41779,3
Citation235 S.W.2d 844,361 Mo. 671
PartiesZINSER et al. v. LUCKS et al
CourtMissouri Supreme Court

H. M. Atwell, Eldon, for appellants.

Hugh Phillips, Camdenton, for respondents.

McDOWELL, Judge.

This is an action in ejectment. The petition was filed in Camden County, Missouri July 22, 1949. Plaintiffs seek to recover possession of lands on which defendants maintain two billboards.

The answer seeks to enjoin plaintiffs from interfering with their possession claiming land by prescriptive easement.

The cause was tried October 18, 1949, and judgment rendered for defendants granting the injunction. Plaintiffs appeal to this court.

On motion Audrey H. Zinser was made party plaintiff and Arthur Lucks, Sr., and Phillomene Lucks parties defendant.

Plaintiff's petition is an ordinary action in ejectment for the possession of lands occupied by the defendants by means of two large billboards established thereon.

The answer states that defendants were owners of a place of business and property located on the old Linn Creek Road in Camden County, Missouri, about three miles west of the intersection of that road with U. S. Highway No. 54 in said county; that, in order to reach defendants' place of business, use was made of that portion of the old Linn Creek Road, which runs in a westerly direction from said Highway 54; that the lands adjacent to the intersection of these roads belong to plaintiffs.

The answer states that the defendants went upon the land of plaintiffs at the intersection of the roads aforesaid, in the year 1933, and erected two permanent wooden advertising signs; one sign on the north side of the old Linn Creek Road and west of U. S. Highway No. 54, which faced traffic traveling north on said Highway 54, the other sign was erected at the south side of the Passover road and east of said Highway No. 54, facing traffic traveling south on said Highway 54.

The answer then states that, for more than ten years last prior to the filing of plaintiffs' petition and since 1933, defendants have openly, notoriously, continuously, uninterruptedly, hostilely, exclusively, actually, peaceably, lawfully and adversely, erected, kept erected, maintained, repaired and gone on said lands for the purpose of keeping erected, maintained, repairing and keeping said signs free of obstructions to view, and have since said time, been in possession of said lands where the signs are situate and way of ingress to and egress from said signs for said purposes, and have used said lands as their own.

The answer then alleges that the signs are necessary for the proper and normal operation and enjoyment of their property; that, by the filing of plaintiffs' action, they threatened to remove said signs and, by the statements of plaintiffs, threatened to deprive defendants of their rights of operation of the same and the enjoyment thereof and defendants' right to use, repair and to remove obstructions barring view of such signs from the roadways. The answer pleads that defendants have no adequate remedy at law and pray that plaintiffs be enjoined from interfering with their rights in the operation of said signs.

We will refer to the appellants as plaintiffs and to the respondents as defendants in this opinion.

The facts in the case are practically undisputed. Plaintiffs, to sustain the issues in their behalf, offered warranty deeds showing title in them to 200 acres of land, a part of which is occupied by the sign boards in question. We gather from the evidence that this was woodland and unfenced, and that plaintiffs were residents of Chicago, Illinois.

The undisputed evidence, on the part of defendants, is that they were the joint owners of a business located about three miles west of Missouri U. S. Highway No. 54, on the old Linn Creek Passover Road, known as 'Art Lucks Resort', which is on the lake; that, to reach this property and place of business, use was made of that portion of the old Linn Creek Road running from U. S. Highway No. 54 to the lake. The evidence is undisputed that defendants went upon the lands owned by plaintiffs, where U. S. Highway No. 54 intersects the old Linn Creek Passover Road and erected two sign boards as described in defendants' answer; one sign board was on the north side of the old Linn Creek Road and west of Highway No. 54, facing traffic traveling north on said highway; the other sign was on the south side of said Passover Road and east of U. S. Highway No. 54, facing traffic traveling south on said highway; both signs were visible from Highway No. 54.

These signs were made of lumber and were more or less markers to direct the public to the defendants' place of business. They were self-supporting with braces on posts. The signs were first erected in 1932 and were about 10 x 14 feet. There was printed on these signs the name, 'Art Lucks Resort', with a large arrow 'On The Lake' to defendants' business and then printed thereon the words, 'Cabins, Boats, Motors, Guides, Groceries and Ice'.

Defendant, Arthur William Lucks, Jr., testified that he erected the sign boards on plaintiffs' land without knowning to whom the land belonged; that in 1932 or 1933, he placed the sign boards on plaintiffs' land in the same place where they now are; that, from time to time, he had the weeds and brush cut so that the signs could be seen from the road. He stated he had no permission to place the sign boards on the land and that he was more or less a trespasser. He stated he did not own the land nor claim title thereto; that he never deprived any other person from entering the area and putting up signs; that he never attempted to keep anybody off the land; anyone who wanted to put up a sign or clear out the timber could do so. He stated the signs were put up for defendants' special benefit in their business, to direct people to their camp. He gave this testimony:

'Q. Then you don't claim any ownership of that land at all? A. No, I don't.

'Q. And you have never asked anyone to get off of it, or stay off? A. No, I never have.

'Q. Anyone could come along and occupy it that wanted to? A. Yes, sir.'

Defendants' testimony showed there was one other sign erected across the road with the words printed on it, 'Three Rivers'. This sign was advertising the Three Rivers Lodge, owned by Mr. and Mrs. Laaker. Defendants' evidence shows that these signs have been kept in the same place for about 15 years; that every four or five years, defendant would go upon the land and repaint the signs and a time or two the storms have blown them down but that defendants, in a short time, would restore them.

Defendant stated that he went on there whenever the signs needed servicing, cut the brush so as to keep them in plain view.

At the end of the trial, the trial court made the statement:

'I am dismissing plaintiffs' petition. It is my opinion that the defendants have a right by prescription, to enter the land and maintain these signs, and of course, the right of egress.'

Then, on the same day, to-wit, the 18th day of September, 1949, the following judgment was entered:

'It is therefore hereby Ordered, Adjudged and Decreed that the petition of the plaintiffs is hereby dismissed; that the plaintiffs are permanently enjoined from interfering with the right of ingress and egress to said signboards, described in the pleadings herein and in the evidence, by said defendants; that the plaintiffs are permanently enjoined from interfering with the clearing of any and all obstructions to the view of said signs to the respective roadways upon which they face.'

We think we are justified, from the evidence, in finding that the lands owned by plaintiffs, who are residents of Chicago, Illinois, are unfenced woodlands, through which U. S. Highway No. 54 runs, and that, on plaintiffs' lands, said highway is intersected by the old Linn Passover Road, which leads down to the Lake of the Ozarks, a distance of about three miles and to the location of the camp of the defendants; that at the time these sign boards were erected, by the defendants, there was no reason for objection, but now the owners of the land desire to develop a project in connection with the Lake of the Ozarks and, therefore, find that defendants' sign boards are obstructing the use of their lands.

There is no question but what the evidence shows that these sign boards have been used by the defendants for a period of more than ten years; that they are placed on separate supports and are guides to the public traveling U. S. Highway No. 54, in advertising the location of defendants' camp or lots.

Plaintiffs' assignments of error present but one question for decision by this court, was there sufficient evidence to support the judgment of the trial court in finding that defendants were entitled to an easement by prescription on plaintiffs' land?

In determining the sufficiency of the evidence to support the judgment it is the duty of the court to try the case de novo and reach its own conclusions as to the facts and law giving due deference to the findings of the trial court. Hastings v. Hudson, 359 Mo. 912, 224 S.W.2d 945.

The subject matter on appeal in this case is the establishment of an easement by prescription. An easement implies an interest in land which places the jurisdiction in the Supreme Court. Wood v. Gregory, Mo.Sup., 155 S.W.2d 168, 171, 138 A.L.R. 142.

In 28 C.J.S., Easements, Sec. 1, p. 620, an easement is defined as follows:

'An easement is property of the nature of land. It is an incorporeal hereditament, an interest in the land of the servient tenement, and may be a freehold or chattel interest according to its duration.

'While it is always distinct from the occupation and enjoyment of the land itself, and does not confer title to the land, or constitute a lien thereon, an easement is property, and partakes of the nature of...

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    • December 13, 1954
    ...v. Boyce, supra; Foxx v. Thompson, 358 Mo. 610, 216 S.W.2d 87, 91; Anson v. Tietze, 354 Mo. 552, 190 S.W.2d 193, 199; Zinser v. Lucks, 361 Mo. 671, 235 S.W.2d 844, 848[6-8]; Freed v. Greathouse, 238 Mo.App. 470, 181 S.W.2d 41, 43; Davidson v. Dunn, 16 Ohio App. 263, 270; King v. Battle Cree......
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    • September 13, 1954
    ...253 S.W.2d 847; George v. Crosno, Mo.App., 254 S.W.2d 30. From what we have said we erred in taking jurisdiction of Zinser v. Lucks (Div. No. II), 361 Mo. 671, 235 S.W.2d 844 (see 17 Mo.L.R. 103); and Dillen v. Edwards wards (Div. No. II), Mo., 263 S.W.2d 433, which should not have been tra......
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    ...to land by adverse possession. Jaeger v. Reynolds, Mo., 276 S.W.2d 182; George v. Crosno, Mo.App., 254 S.W.2d 30, 34; Zinser v. Lucks, 361 Mo. 671, 235 S.W.2d 844. It has been held that the essential facts necessary to be proved in order to establish a prescriptive easement are, first, user......
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