Auxier v. Horn

• Decision Date: 02 June 1919
• Docket Number: (No. 20111.)
• Citation: 213 S.W. 100
• Parties: AUXIER v. HORN.
• Court: Missouri Supreme Court

213 S.W. 100

AUXIER v. HORN.

(No. 20111.)

Supreme Court of Missouri, Division No.

June 2, 1919.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

Suit by Mary A. Auxier against Samuel Horn to enjoin obstruction of a private road. Decree for petitioner, and defendant appeals. Reversed, with directions.

S. S. Shull, of St. Joseph, for appellant. Warren Rogers, of St. Joseph, R. C. Bell, of Minneapolis, Minn., and A. L. Ray, of St. Joseph, for respondent.

BROWN, C.

This suit was instituted in August, 1914, by petition for injunction to restrain the appellant from obstructing, by locking the gates at each end, a private road or way 20 feet wide extending along and upon the east side of the north 20 acres of the northeast quarter of the southeast quarter of section 6, township 55, range 33, in Buchanan county. The plaintiff's land, appurtenant to which the way is claimed, is 37 acres off the south end of the southeast quarter of the northeast quarter of the same section.

After the necessary formal allegations, and describing the lands of the respective parties as above, the petition proceeds as follows:

"That for more than 20 years last past before the acts of the defendant hereinafter complained of, there has been a private road or lane beginning upon and at the southeast corner of plaintiff's land, and running upon the section line due south, a width of 20 feet off of the east line of the land hereinabove described ac belonging to the defendant, to a public road, a distance of 50 rods, more or less, and connecting with a public road and highway about 10 rods south of the south line of defendant's hereinbefore described land; that said private road or lane has for the last 20 years been the only way to get to and from plaintiff's land from any public road or highway; and that plaintiff has no way to enter upon her said land from any highway or public road in Buchanan county, except over said private road; and that for more than 20 years last past said private road has been used and occupied as a passageway by plaintiff and her grantors, with the assent, acquiescence, knowledge, and agreement of the defendant and his several grantors; and said road continuously for said 20 years has been so used openly, notoriously, adversely, and under a claim of right by plaintiff and her grantors, against the defendant and his several grantors; that said private road or lane was originally opened and laid out as a way of necessity, for the benefit of the owners of plaintiff's land, and all persons wishing to travel the same in order to reach said land."

It then proceeds in general terms that the defendant obstructed said easement, and excluded plaintiff in its use, and prays for injunction and damages.

A preliminary injunction was granted, and after a general denial by way of answer and a motion to dissolve by defendant the cause proceeded to trial in which the following facts appeared.

Neither of these tracts is reached by a public road. There is a public road extending north along the line dividing sections 7 and 8 and 5 and 6 to a point described as 100 steps south of the southeast corner of defendant's 20 acres first described, and extending thence northeast into section 5 to the southeast corner of the west half of the northwest quarter of that section, thence running north along the government subdivision line indefinitely.

William R. Osborn acquired the 37-acre tract now owned by plaintiff in 1888, and the 20-acre tract in 1890. In 1891 he conveyed the 20 acres to John McQueen, retaining the 37 acres now owned by plaintiff until 1902, when he conveyed it to Manford Kannan, who conveyed it to plaintiff in 1909. It is formally admitted that W. R. Osborn is the common source of title of the respective parties.

McQueen owned the 20 acres until March, 1905, when he conveyed it to S. B. Lyons and Nancy, his wife, who in 1908 conveyed it to Jesse Auxier, a son of plaintiff, who on December 14, 1911, conveyed it to the defendant.

At the time McQueen purchased the 20 acres, it was timbered, unfenced, and uncultivated. Travel across it from the 37-acre tract to the public road to the south, which we have already described, was not confined to any particular tract, and some time after he acquired it he made an arrangement with Osborn by which the latter agreed to build the entire fence running east and west on the line between them for the right to cross Mc-Queen's land on his way to the public road. Mr. Lyons, who afterward became, jointly with his wife, Nancy, the owner of the 20 acres, was employed by Osborn in the work of building this fence, and testified for the plaintiff in this case that Osborn told him that he had been very foolish in selling to Mr. McQueen because it put him back from the road, but that he was not uneasy while McQueen owned the land, because he knew that McQueen would do right, and that he was building the fence for the right of way to go out over his land.

In fencing the 20 acres, a gate was placed in the east end of the fence which Osborn built on the north side and another gate in the east end of the line fence between him and his brother Jim McQueen, who owned the land south of the 20, and from this last-mentioned gate the evidence tends to show that a lane was made along the section line a distance of a hundred steps south, to the public road, by building a fence through the land of Jim McQueen 20 feet west of the line fence between the latter and Horn who owned the adjoining land in section 5. Several witnesses for the plaintiff, including Mr. Lyons, who assisted in building the line fence on the north of the 20, and afterward, with his wife, owned the land, testified that they all supposed that the putting in of these gates and thereby leaving a passageway for Osborn was a simple neighborly kindness, and Mrs. Lyons, who was a daughter of Mr. McQueen, testified that during all the time her father and herself had lived on and owned the land she had never heard of any claim of right by any one to this passageway until the bringing of this suit; nor is there any evidence that such claim was ever made, unless it is shown by the facts above. There are two other gateways in Mrs. Auxier's fence, one on the north and another on the east, by which access to the public roads has been had across the lands of others; one of them leading across the land of her son, whose land adjoined hers on the north. To reach the highway 80 rods to the east would require a passage over land owned by Mr. Horn. It is admitted by the defendant that his tenant locked one of the gates we have described and put a "no trespassing" sign at the north side of the public road on the section line.

The finding of the court was for the plaintiff, and the parts of the decree pertinent to this appeal are as follows:

"That for a long time prior to the beginning of this suit, there has been a private road and passageway beginning upon and at the southeast corner of plaintiff's said land and running upon the section line due south the width of 20 feet off of the east portion of the land hereinabove described as belonging to the defendant, to a public road the distance of 50 rods more or less and connecting with a public road and highway about 10 rods south of the south line of the defendant's heretofore described land as stated in plaintiff's petition.

"That said private road was laid out, opened, and has been used for more than 10 years as a way of necessity by the plaintiff and the former owners of plaintiff's land. The court further finds that the plaintiff and those desiring to enter upon plaintiff's land to and from the said public road for more than 10 years last past have had free passageway over the defendant's land as herein described, and that the plaintiff is entitled to the relief prayed for in her petition.

"The court cloth thereupon order, adjudge, and decree that the temporary injunction formerly granted in this cause to restrain the defendant, his servants and agents, from interfering with plaintiff and those desiring to enter upon plaintiff's land, in the use and enjoyment of the said private road as described herein for the purpose of egress and ingress from said public road, be made permanent and perpetual."

1. The appeal in this case was originally taken to the Kansas City Court of Appeals, from which it was certified here. The abstract and briefs now before us were filed in that court, which probably accounts for the points made in respondent's brief that neither the abstract nor bill of exceptions was filed in time. The abstract shows that the bill of exceptions had been filed in due time under the act of March 13, 1911 (Laws 1911, 139).

2. Although the petition pleads the plaintiff's title to the right of way for which she seeks protection, solely on the ground of its adverse use and enjoyment by her and her predecessors in title for a period of 20 years, and the court has placed its decree on the ground of its adverse enjoyment for a period of 10 years, we will consider it as if the parties had elected to go to trial upon the allegation of ownership of the easement, without any specification of the plaintiff's title. In 1891 Osborn owned both tracts. There was no fence between them. We are not informed by the evidence how the north 37 acres now owned by plaintiff was improved, but it shows that the south 20 was wild, unfenced, and uncultivated, and that no public road touched any part of the entire tract. In this condition he then sold 20 acres off the south end to McQueen without any reservation. Although we take notice as a geographical fact that the land was quite near to the railway towns of Frazier and Gower, there is no information in the record as to how these markets were reached, or...