Autenrieth v. Bartley

• Decision Date: 06 December 1943
• Parties: Julius C. Autenrieth, Respondent, v. Paris Bartley and Marie Bartley, Husband and Wife, Appellant
• Court: Kansas Court of Appeals

176 S.W.2d 546

238 Mo.App. 55

Julius C. Autenrieth, Respondent, v. Paris Bartley and Marie Bartley, Husband and Wife, Appellant

Court of Appeals of Missouri, Kansas City

December 6, 1943

Appeal from Callaway County Circuit Court; Hon. W. M. Dinwiddie Judge.

Reversed.

Baker & Baker for appellants.

(1) On the merits plaintiff failed to establish his right to an easement for a roadway across defendants' land; because (a) Where one claims only a right-of-way as a private right-of-way, as in this case, he must show a written grant or something more than use. Gardner v. Moffett, 335 Mo. 959, 74 S.W.2d 604; Coberly v. Butler, 63 Mo.App. 556; Mayo v. Schumer, 256 S.W. 549; Kuhlman v. Stewart, 282 Mo. 108, 221 S.W. 31. (b) Mere permissive use of land, however long cannot ripen into an easement. Seested v. Applegate, 26 S.W.2d 796. (c) Adverse character of possession must be known to true owner to prejudice his rights. Burnside v Doolittle, 324 Mo. 722, 24 S.W.2d 1011. (2) A suit to quiet title under section 1684, Revised Statutes 1939, raises and settles all the respective rights and interests the parties to the suit have in or to the lands involved. Sec 1684, R. S. Mo. 1939; Bernero v. St. Louis Union Trust Co., 287 Mo. 602, 230 S.W. 620; Lorts v. Rose, 346 Mo. 1212, 145 S.W.2d 385; Rains v. Moore, 328 Mo. 275, 90 S.W.2d 81; 34 C. J., p. 818, sec. 1236, subsec. 3, p. 959, sec. 1363. (3) The doctrine of res judicata means that every man is entitled to one day in court, one fair trial of his case, and only one. State ex rel. Greene v. Brown, 224 Mo.App. 1197, 31 S.W.2d 215; Re Flynn Estate, 232 Mo.App. 297, 95 S.W.2d 1208; Re Flynn Estate, 340 Mo. 965, 104 S.W.2d 303; State ex rel. Lane et al. v. Corneli et al., 171 S.W.2d 687, 690.

T. A. Faucett for respondent.

(1) On the merits plaintiff clearly established his right to an easement for a passageway over this sixteen-foot strip of land because, (a) An easement on the estate of another can be created by actual use only when such use has been open, adverse, exclusive and uninterrupted for ten consecutive years. Dunham v. Joyce, 129 Mo. 5; Sanford v. Kern, 223 Mo. 616; P. M. Bruner Granitoid Co. v. Glenco Lion & Cement Co., 169 Mo.App. 295; Novinger v. Shoop (Mo.), 201 S.W. 64; Leiweke v. Link, 147 Mo.App. 19, 126 S.W. 197; Strong v. Sperling, 200 Mo.App. 66, 205 S.W. 266. (b) In an action for the obstruction of a road, it is held that plaintiff was entitled to an easement by adverse use and could use it as a road. Autenreith v. St. Louis & S. F. R. Co., 36 Mo.App. 254. (c) Where a party is disturbed in the enjoyment of an easement, and the wrong is a continuing one, he has a remedy by suit in equity for an injunction. Brier v. State Exchange Bank of Macon, 225 Mo. 673, 125 S.W. 469. (2) In a number of cases, the courts have held to the rule, that a judgment is conclusive not only of the question actually determined, but of all matters which might have been decided in the suit, refers only to matters which might have been decided in longing to the subject of the controversy and within the scope of the issues. Garland v. Smith, 164 Mo. 1; State ex rel. Blair v. Centercreek Mining Co., 262 Mo. 490, 171 S.W. 356; State ex rel. St. Joseph Water Co. v. Eastons, 278 Mo. 662, 213 S.W. 59. In order for a judgment to be conclusive in another suit between the same parties, it must appear that the precise question was raised and determined in the former suit. Arthur Fritsch, Foundry & Machine Co. v. Goodwin Mfg. Co., 100 Mo.App. 414; Moseley v. Evans, 202 S.W. 1075. The record of a former suit between the same parties is not conclusive, unless the subject-matter passed on in the former suit be the same with that in dispute in the case at bar. Clemens v. Murphy, 40 Mo. 121; Moseley v. Evans, 274 Mo. 216, 202 S.W. 1075

OPINION

Cave, J.

This is an appeal from a judgment of the Circuit Court of Callaway County, wherein the court found that the plaintiff had an easement for road purposes over a sixteen-foot strip of land and that the defendants had obstructed the use thereof and permanently enjoined them from further interference with the usage of said roadway. From that judgment, the defendants appealed.

But two assignments of error are made: (1) The evidence failed to establish plaintiff's right to an easement for a roadway, for certain specific reasons; (2) that the judgment in a prior suit filed and tried between the same parties involving the same sixteen-foot strip of land is res judicata of the issues in the present case, and the trial court erred in not so holding. If this contention be sound, then we need not discuss the first assignment of error.

For clarity the parties will be referred to as plaintiff and defendants because they were such in each of the two suits hereinafter referred to.

The record discloses that prior to July 15, 1897, two brothers, John F. Bartley and Robert L. Bartley, owned a tract of land, of approximately 160 acres, as tenants in common; that on July 15, 1897, they divided the land between them, Robert taking the west half and John the east half. The division of the land was made by exchange of proper warranty deeds; at the time of the division, the sixteen-foot strip of land now in dispute and along the south end of the land taken by John was deeded to Robert in fee. From that time on Robert used this strip of land as a roadway going from his farm to a small tract of land which he owned to the east, and also as an outlet to a county road known as the "Mokane Road." Some time later, the record does not disclose the exact date, Robert conveyed the west half to certain grantees, but did not include the sixteen-foot strip in that conveyance. In about 1917, the plaintiff bought from such grantees of Robert the west half of the land which had originally been owned jointly, but the sixteen-foot strip was not included in his deed. The evidence is that from the time Robert received his deed this sixteen-foot strip had been used by him and his grantees as a roadway or passageway from his farm to the Mokane Road, and that the owners of his tract had expended some money in improving the roadway and keeping it in passable condition. There is no claim it was or had become a public road.

On March 31, 1941, the defendants obtained quit-claim deeds to this sixteen-foot strip from all of the heirs of Robert Bartley and soon thereafter asserted ownership of such strip and built a wire fence across it. Soon thereafter, and as a result of the claims of the defendants, the plaintiff filed suit against defendants seeking to have the title, interest and estate of the respective parties determined in and to said land. He alleged "that he holds the title to, and is in the possession of certain real estate located and situated in the County of Callaway . . . (describing sixteen-foot strip); that he acquired title thereto by reason of the following facts: (he then recites the joint ownership of John and Robert Bartley to the 160 acres and that they divided the same on July 15, 1897, Robert retaining fee title to the sixteen-foot strip and that soon after Robert became the sole owner of the sixteen-foot strip he built and maintained a fence on the north side thereof, and graded and worked said strip and used the same as a roadway in passing from Robert's land to the Mokane Road; and that he and those under whom he claimed had worked and graded and used said strip as a roadway continuously since that time); that the plaintiff and those under whom he claims have been in possession of said land and used the same for road purposes continuously since it was first used and adopted as a road, and that the title to said real estate has vested in him by limitations under the provisions of section 1008 of Chapter 6 of the 1939 Revised Statutes of Missouri . . .; that the defendants claim title to said real estate by reason of a quitclaim deed, made to them on the 31st day of March, 1941 (by the heirs of Robert Bartley, naming them). Plaintiff further states that the grantors in said quitclaim deed did not own said real estate, when said deed was made, and that such claim of the defendants is adverse and prejudicial to the plaintiff and casts a cloud on his title. Wherefore, plaintiff prays the court to try and ascertain and determine the estate, title and interest of the plaintiff and the defendants herein respectively, in and to the sixteen-foot strip of real estate aforesaid, and to define and adjudge by its judgment and decree, the title, estate and interest of the parties, plaintiff and defendants, herein severally, in and to the aforementioned premises, according to the statutes in such cases made and provided. . . ."

To this petition the defendants answered, denying that the plaintiff was the owner of said sixteen-foot strip and alleged "that they are the owners thereof; that they acquired title from all the heirs at law of Robert L. Bartley mentioned in plaintiff's petition; that they and those by, through and under whom they claim, have paid the taxes on said land for more than thirty-one years continuously next prior to the filing of this suit, and that neither the plaintiff, nor any of those under whom he claims, have paid any taxes on said land during all of said period of time. Wherefore, defendants pray the court to ascertain and determine the title to said strip of land, and by proper judgment, order and decree determine that the plaintiff has no interest therein or any part thereof, but that these defendants are the owners thereof absolutely in fee."

The cause was tried by the court resulting in a judgment dismissing plaintiff's petition and decreeing the defendants to be the owners in fee of said sixteen-foot strip. There was no appeal taken from that judgment. Thereafter,...