Anderson v. Howald

• Decision Date: 17 April 1995
• Docket Number: Nos. 19466,19484,s. 19466
• Citation: 897 S.W.2d 176
• Parties: Melba ANDERSON, Plaintiff-Appellant, v. Arthur HOWALD and Susie Howald, his wife, and J. Kent Howald and Elizabeth Howald, his wife, Defendants-Respondents. Melba ANDERSON, Plaintiff-Respondent, v. Arthur HOWALD and Susie Howald, his wife, and J. Kent Howald and Elizabeth Howald, his wife, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 176

897 S.W.2d 176

Melba ANDERSON, Plaintiff-Appellant, v. Arthur HOWALD and Susie Howald, his wife, and J. Kent Howald and Elizabeth Howald, his wife, Defendants-Respondents.

Melba ANDERSON, Plaintiff-Respondent, v. Arthur HOWALD and Susie Howald, his wife, and J. Kent Howald and Elizabeth Howald, his wife, Defendants-Appellants.

Nos. 19466, 19484.

Missouri Court of Appeals,

Southern District,

Division One.

April 17, 1995.

Richard Boardman, St. Louis, for appellant.

Donald A. Hale, Steelville, for respondents.

FLANIGAN, Judge.

Plaintiff Melba Anderson brought this action against defendants Arthur Howald and Susie Howald, his wife, and J. Kent Howald and Elizabeth Howald, his wife.

The petition alleged: Plaintiff is the owner of certain real estate (Tract 1) located in Crawford County. Defendants own a "nearby" tract of land. Since 1949, a pathway, approximately 7 feet wide, has run diagonally across Tract 1. Plaintiff and her predecessors in title allowed the permissive use of the pathway by defendants and their predecessors in title from 1949 through the filing of this action. On April 1, 1991, defendants exceeded the permissive use of the pathway by entering upon Tract 1 with a bulldozer or other earth-moving machinery. During such entry, defendants cut down, injured, or destroyed trees on both sides of the pathway, which trees were growing there for use, shade, or ornament. Defendants scraped, dug up, and moved stones and other material from the surface of the pathway. The acts of defendants were adverse, open, notorious, and hostile to plaintiff's title. Defendants acted under a claim of right of a prescriptive easement for ingress and egress from a public road to their property, and such claim constitutes a cloud on plaintiffs' title. Defendants have no right, title, or interest in the pathway other than such permissive use which plaintiff may grant from time to time.

The foregoing allegations were incorporated in each of the three counts of the petition.

In Count I, plaintiff prayed for judgment quieting title to Tract I in plaintiff "free of any unrecorded easements or other interests." The prayer of Count II was that the court enjoin defendants from destroying or injuring trees or other vegetation adjoining the pathway or in any way altering the pathway.

Count III contained these additional allegations: Defendants' acts have damaged the pathway by causing erosion and wash-out and have destroyed the vegetation for a width of 20 feet on both sides of the pathway. Defendants had no interest in the trees they destroyed, and defendants do not own the land on which the trees or other vegetation stood. As a result of defendants' acts, plaintiff has been injured in the loss of the fair market value of the trees which defendants destroyed, and in the loss of the value of the pathway from erosion. The prayer of Count III was that the court determine the fair and reasonable value of the trees destroyed and award damages "of treble the amount."

The answer of defendants Arthur Howald and Susie Howald admitted that they owned an interest as life tenants in land "adjacent to" Tract 1. The answer generally denied the allegations of the petition and also pleaded: For more than 50 years, defendants and their predecessors in title have utilized for ingress and egress a roadway over Tract 1 for access to defendants' land. The use of the roadway has been open, adverse, continuous, visible, uninterrupted, under claim of right, and with notice to plaintiff and her predecessors in title. The roadway is approximately 30 feet in width and has been maintained by defendants for approximately 30 years. All actions and use of the roadway have been based on a prescriptive easement, which matured more than 30 years ago. Arthur Howald pleaded, additionally, that at various times over the last 30 years he has maintained the roadway. Said maintenance included the removal of vegetation which encroached thereon and restricted the reasonable and customary use of the roadway. He has also repaired the effects of erosion by grading and leveling the roadway.

The answer of defendants J. Kent Howald and Elizabeth Howald admitted that they own an interest, as remaindermen, in land "adjacent to" Tract 1. In other respects, their answer was essentially the same as the answer of the co-defendants.

Defendants filed a counterclaim in which they alleged: Defendants and their predecessors in title had, for more than 50 years, utilized the roadway over Tract 1 for ingress and egress to the defendants' lands. The roadway is approximately 30 feet in width, and defendants and their predecessors have acquired, by prescription, an easement over it. Plaintiff has attempted to prevent defendants from utilizing the roadway by placing a gate across it. The prayer of the counterclaim was that the court decree that the defendants are owners by prescription of an easement over the roadway and that the court enjoin plaintiff from blocking it or placing a gate across it.

Following a nonjury trial, the court entered judgment which found in favor of plaintiff and against all defendants on Count I and Count II; found in favor of plaintiff and against defendants Arthur Howald and Susie Howald on Count III and assessed plaintiff's damages at $6.40; and found in favor of plaintiff and against all defendants on the counterclaim. The judgment found that the previous usage of the roadway was permissive, that the permission [of plaintiff] has been withdrawn, and that the roadway no longer exists.

Both sides appeal. Plaintiff's appeal is No. 19466. Defendants' appeal is No. 19484. The appeals have been consolidated and will be dealt with separately.

No. 19466--Plaintiff's Appeal

Plaintiff's first point is that the trial court erred: (a) in failing to include the legal description of the land in its ruling on Count I, and (b) in failing to file detailed findings of fact and conclusions of law after timely request by plaintiff.

Subpoint (a) is meritorious. In a quiet title action, the judgment must describe with reasonable certainty the real estate affected by the decree. First State Savings Bank v. Peters, 797 S.W.2d 574, 575 (Mo.App.1990); Keen v. Dismuke, 667 S.W.2d 452, 453 (Mo.App.1984). This defect will be corrected on remand.

Subpoint (b) is not supported by the record on appeal. Although plaintiff's brief states that plaintiff's counsel made a timely request to the court for findings of fact and conclusions of law, pursuant to Rule 73.01(a)(3), ¹ the brief also says: "The transcript does not reflect this specific request." Further, the record on appeal does not reflect any request for findings by the court "on such controverted fact issues as have been specified by counsel." Rule 73.01(a)(3). Subpoint (b) has not been preserved for appellate review.

Plaintiff's second point is that the trial court's ruling on Count II of the petition is defective because it does not comply with Rule 92.02(d), which reads, in pertinent part: "Every order granting an injunction ... shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the petition or other document, the act or acts sought to be restrained...."

This point is meritorious. An injunction must clearly and specifically describe the acts and things enjoined so as not to be subject to misunderstanding and confusion by those against whom it is directed. Farmer's Mut. Fire Ins. Co. v. Farmer, 795 S.W.2d 104, 109 (Mo.App.1990). To similar effect see Blackburn v. Richardson, 849 S.W.2d 281, 292-293 (Mo.App.1993); Concannon v. Hanley Dev. Corp., 769 S.W.2d 183, 188 (Mo.App.1989). The judgment on Count II does not do so. This defect will be corrected on remand.

Plaintiff's third point is that the damage award of $6.40 on Count III of the petition is inadequate and against the substantial weight of the evidence, and the court applied the incorrect test of stumpage value of the timber destroyed in assessing the damages under § 537.340.

Both sides agreed that prior to 1991 a pathway or roadway crossed Tract 1 owned by plaintiff and had been used for many years by defendants and their predecessors in title. Plaintiff's evidence was that defendants' use of the roadway was permissive. Defendants attempted to establish that they had an easement by prescription. Defendant Arthur Howald admitted that in 1990 his employee bulldozed trees outside the width of the roadway, so as to permit the passage of larger vehicles. Arthur Howald and Susie Howald, his wife, were jointly engaged in a farming operation on their nearby land.

The record supports the finding of the trial court that defendants' use of the roadway was permissive, that the bulldozing done by Arthur Howald's employee exceeded the scope of permission and, as a result, the permission of plaintiff was withdrawn and defendants no longer have permission to use it.

A survey was prepared by surveyor Jim Adams for plaintiff. Adams testified that the width of the roadway was approximately 10 feet, and that the area of the land which was bulldozed was .79 acre, which included the roadway which was originally there. Of the .79 acre, the 10-foot existing roadway would take up approximately .30 acre, leaving approximately .49 acre which was bulldozed and which was outside the original roadway.

Plaintiff sought recovery of treble damages under § 537.340, which reads, in pertinent part: "If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person ... the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed or carried away, with costs."

Each side produced an expert witness on the issue of plaintiff's damages. Plaintiff's expert was Warren Kincaid, Jr. Defendant's expert was Frank...