Abney v. Turnbough

• Decision Date: 09 March 1970
• Docket Number: No. 54307,No. 2,54307,2
• Citation: 451 S.W.2d 134
• Parties: Alfred L. ABNEY and Dosha M. Abney, Plaintiffs-Appellants, v. John TURNBOUGH and Nettie Turnbough, Defendants-Respondents
• Court: Missouri Supreme Court

Page 134

451 S.W.2d 134

Alfred L. ABNEY and Dosha M. Abney, Plaintiffs-Appellants, v. John TURNBOUGH and Nettie Turnbough, Defendants-Respondents.

No. 54307.

Supreme Court of Missouri, Division No. 2.

March 9, 1970.

Frank G. Mack, Ironton, for plaintiffs-appellants.

Samuel Richeson, Nicholas G. Gasaway, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for defendants-respondents.

FINCH, Judge.

This is an appeal from a decree denying injunctive relief to plaintiffs. They appealed to this court, but we have no jurisdiction and must transfer this case to the St. Louis Court of Appeals.

Plaintiffs' petition alleges that defendants previously established a road across their property and that subsequently the road was maintained by the county and used by the public. The petition further alleges that beginning about February 27, 1968, defendants barricaded the road and prevented ingress and egress thereon by plaintiffs and the general public. The prayer of the petition asked for an injunction against defendants from interference with the use of said road by plaintiffs. Defendants' answer was a general denial of most of the allegations of the petition.

Plaintiffs assert that we have jurisdiction under Art. V, § 3, of the Constitution of Missouri, 1945, V.A.M.S., which provides that, 'The supreme court shall have exclusive appellate jurisdiction in all cases * * * involving title to real estate * * *.'

The determination of whether particular cases have involved title to real estate so as to vest appellate jurisdiction in the Supreme Court has presented some problems for the courts. See 'Missouri Appellate Jurisdiction,' Washington University Law Quarterly, December 1964, and particularly Chapter 5 thereof beginning at page 523. However, it seems rather clear that this court has applied the general rule that actions seeking only injunctive relief do not involve title to real estate. State ex rel. and to Use of Northside Church of God v. Church of God, Mo., 243 S.W.2d 308; Mueller v. Klinhart, Mo., 164 S.W.2d 928; Dillard v. Sanderson, 282 Mo. 436, 222 S.W. 766; Burnett v. Sladek, Mo.App., 251 S.W.2d 397; Washington University Law Quarterly, December 1964, l.c. 578. The reasoning upon which this conclusion has been reached has been that the suit seeks only a decree prohibiting action by defendants, does not seek adjudication of title to real estate, and title actually is not adjudicated by the court.

Plaintiffs, in support of asserted jurisdiction in this court, rely on Chapman v. Schearf, Mo.App., 220 S.W.2d 757, transf....