Allen v. Smith
| Decision Date | 24 February 1964 |
| Docket Number | No. 8201,8201 |
| Citation | 375 S.W.2d 874 |
| Parties | Chester ALLEN and Blanche Allen, Plaintiffs-Respondents, v. O. L. SMITH and Hattie Smith, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Powell, Jones & Ringer, Dexter, for defendants-appellants.
John A. Casey, Poplar Bluff, for plaintiffs-respondents.
This is an appeal by defendants from the judgment in Case No. 15,620 (in the Circuit Court of Butler County) reforming the judgment theretofore entered in Case No. 14,851 (), which had established, pursuant to a written stipulation of the parties, a permanent easement for a private road over and across defendants' land.
Defendants' farm of more than 800 acres is about 12 1/2 miles northwest of Poplar Bluff and lies on both sides of U. S. Highway 60, which runs generally east and west through the farm. Plaintiffs' tract of approximately 63 acres lies south of Highway 60, separated from the highway and almost enclosed (i. e., bounded on the west, north and east, and on half of the south side) by defendants' land. Prior to 1953, plaintiffs reached their tract from the north over a road identified in the record as, and hereinafter called, 'the old log road.' Plaintiff Chester Allen said that he had traveled the old log road 'ever since I can remember' and 'I can remember it in '22.' About 1953, and thus about the time Highway 60 was relocated and constructed along its present route, defendants so fenced their land that thereafter plaintiffs could not use the old log road and were excluded from their tract until judgment was entered in Case No. 14,851 on September 27, 1960. Plaintiffs resided on a farm about one mile distant and, during a major part of the period from 1953 to 1960, 'were gone' (apparently from the neighborhood) so, after they were fenced out, they made no serious attempt to reach their tract until they instituted Case No. 14,851 against defendants.
The pleadings in Case No. 14,851 are not before us; but, whatever may have been the precise issues joined thereby, the parties by their respective counsel of record executed a written 'stipulation for judgment' which included the form of judgment thereafter approved and entered of record by and in the circuit court. In that judgment, the court found (a) that plaintiffs were the owners of the 63-acre tract therein described, (b) that 'there [was] no public road passing through or alongside said property owned by plaintiffs,' (c) that defendants owned the land lying between plaintiffs' tract and Highway 60, (d) that 'plaintiffs [needed] a means of ingress and egress,' and (e) that 'same should be established across' defendants' land (described in the stipulation) upon 'certain conditions,' to wit, (1) that plaintiffs should pay $250 to defendants and the court costs, and (2) that two cattle guards, 'one at the highway entrance to said easement and the other at the point where said easement' joined plaintiffs' tract, should be constructed by plaintiffs and thereafter maintained by them and their successors in title. Upon those findings, it was adjudged that defendants have judgment against plaintiffs for $250 and costs and 'that plaintiffs shall have a permanent easement to run with their land as described in this judgment over and across the lands of the defendants as described in this judgment and in particular, over and across a strip of land thirty feet wide lying immediately west of and adjacent to a line beginning at a point sixty feet south of the northwest corner of [plaintiffs' 63-acre tract] and running thence north along and with the west line of the east half of the southwest quarter of said Section 5 to the southerly right of way line of U. S. Highway 60 () to termination, provided that at all times' the two cattle guards should be maintained at the locations aforesaid. (All emphasis herein is ours.)
Thus, the permanent easement was imposed upon a strip (hereinafter referred to as the 30-foot easement strip), which was 30 feet in width, east and west, and ran north and south 'immediately west of and adjacent to' a north-and-south quarter-section line from the northwest corner of plaintiffs' 63-acre tract to Highway 60, a distance not stated in the judgment but shown on a plat in evidence in this case as approximately 600 feet. Plaintiffs insisted that, when they read the stipulation for judgment in Case No. 14,851, they understood that it described the course of the old log road and that they were to use that road between their tract and the highway.
The east-and-west boundary line between defendants' land on the north and plaintiffs' tract on the south had been run and thus the northwest corner of plaintiffs' tract had been established by the county surveyor (employed by defendants) in 1958, but the north-and-south quarter-section line, 'immediately west of and adjacent to' which the 30-foot easement strip lay, had not been run prior to entry of judgment in Case No. 14,851 on September 27, 1960. So, when the parties stipulated and judgment was entered in Case No. 14,851, none of them knew definitely where the north-and-south quarter-section line crossed Highway 60 or whether a vehicular entrance built on the south side of Highway 60 at the time of its relocation and construction was within the 30-foot easement strip described in the judgment.
Upon entry of judgment in Case No. 14,851, plaintiffs began to travel across defendants' land using (so they said upon trial of this case) the old log road which was 'well-defined' and ran between two old fence rows 'straight north' from the northwest corner of plaintiffs' tract to a point some 50 to 60 feet south of the highway right of way where it veered slightly to the east and ran to the highway entrance. Upon trial, plaintiffs conceded that the old log road 'wasn't perfectly straight' and that it curved at the north end, but they insisted that, prior to August 1961 when John H. Greason, the county surveyor (then employed by defendants), had run the north-and-south quarter-section line, they had thought that the old log road, for the entire distance from their tract to the highway, was within the 30-foot easement strip.
In August 1961, Greason ran the north-and-south quarter-section line and then found that the road being used by plaintiffs (he shied from referring to it as 'the old log road') was west of the quarter-section line (and thus within the 30-foot easement strip) until 'it approached Highway 60' where it veered to the east of the quarter-section line (and thus without the 30-foot easement strip) as it ran to the highway entrance. Greason fixed the middle of the highway entrance as 36 feet east of the quarter-section line; and, although he did not give the width of the entrance, he said that no part of it was west of the quarter-section line. Emboldened by this survey, defendants fenced and closed the entrance on August 28, 1961. This suit followed on September 19, 1961.
Plaintiffs' second amended petition, upon which the case at bar was tried, alleged in substance that, when the stipulation for judgment in Case No. 14,851 was executed, it was the agreement of all parties that the stipulation described the old log road over which plaintiffs were to have an easement, but that, when defendants subsequently procured a survey of the 30-foot easement strip, it was found 'that the judgment entered did not describe the road location as agreed upon by the parties.' Plaintiffs prayed for reformation of the judgment in Case No. 14,851 so that the easement would 'follow the course of the old log road' and would 'be in the location agreed upon by plaintiffs and defendants,' and for a permanent injunction restraining defendants from interfering with plaintiffs' use and enjoyment of the easement (as reformed) over the old log road. Defendants' answer admitted execution of the stipulation and entry of judgment pursuant thereto, averred that they had not interfered with or objected to plaintiffs' use of the 30-foot easement strip, and denied the other allegations in the petition.
Following trial on the merits, the court entered its judgment and decree in this case (No. 15,620) finding 'that the description * * * in the stipulation for judgment in Case No. 14,851 was erroneous and that it was the intention of both parties that said stipulation for judgment should permit plaintiffs the use of the so-called old log road * * * and that said old log road is the well-defined road running over and across defendants' land and connecting to the highway approach for Highway No. 60,' and 'that the written stipulation for judgment as entered into in Case No. 14,851 did not express the intentions of plaintiffs or defendants.' Upon those findings, the court decree 'that the stipulation for judgment and judgment entered in accordance therewith in Case No. 14,851 as said judgment pertains to the location of the road which plaintiffs were to receive the use of over and across defendants' property, should be amended and reformed so as to read * * * that said location of said road shall be and follow the course of the old log road running over and across [defendants'] premises in the approximate vicinity of the west line of the East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section Five (5), Township Twenty-five (25) North, Range Five (5) East, in Butler County, Missouri, connecting on the south end to the land of plaintiff[s] and connecting on the north end to the highway approach as now located to U.S.Highway No. 60.' The decree also enjoined defendants 'from interfering with plaintiffs' use of the aforesaid described road' and taxed the costs against defendants.
Our first responsibility is to consider and determine our appellate jurisdiction regardless of whether it has been challenged. Domyan v. Dornin, Mo.App., 348 S.W.2d 360, 361; Hammonds v. Hammonds, Mo.App., 289 S.W.2d 903, 904(1), and cases there cited. Since an easement is an 'in...
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