Behen v. Elliott

• Decision Date: 19 June 1990
• Docket Number: No. 56118,56118
• Citation: Behen v. Elliott, 791 S.W.2d 475 (Mo. App. 1990)
• Parties: Roy J. BEHEN and Marie U. Behen, Trustees, Respondents, v. Edward D. ELLIOTT, a/k/a, Ed Elliott, Appellant.
• Court: Missouri Court of Appeals

Page 475

791 S.W.2d 475

Roy J. BEHEN and Marie U. Behen, Trustees, Respondents, v.Edward D. ELLIOTT, a/k/a, Ed Elliott, Appellant.

No. 56118.

Missouri Court of Appeals,

Eastern District,

Southern Division.

June 19, 1990.

Dale Edward Gerecke, Cape Girardeau, for appellant.

Maurice B. Graham, Daniel Patrick Fall, Fredericktown, for respondents.

CARL R. GAERTNER, Judge.

Defendant, Edward Elliott, appeals from the judgment in a bench trial holding that plaintiffs, Roy and Marie Behen, are vested with an easement by prescription for ingress and egress to the Eli White Road and the B & B Road.The trial court also issued a permanent injunction enjoining defendant from interfering with plaintiffs' use and maintenance of those roadways, except that defendant may lock the roadways' common entrance during Missouri's firearms deer season, so long as plaintiffs are provided with keys.Further, the trial court awarded plaintiffs $400 in damages caused by defendant to the roadways' former entrance.We affirm.

The standard of review for a bench-tried case is well established.We must affirm the trial court's decision unless the judgment is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).We accept the evidence and inferences favorable to the prevailing party and disregard all contrary evidence.Slay Warehousing Co., Inc. v. Leggett, 762 S.W.2d 63, 63-64(Mo.App.1988).Further, even though not requested by the parties, the trial court voluntarily entered "Amended Findings of Fact and Judgment."Consequently, such findings and conclusions form a proper basis for assigning error and will be so reviewed.Thomas v. Depaoli, 778 S.W.2d 745, 747(Mo.App.1989).

Plaintiffs are the owners of two adjacent farms located in Madison County, Missouri.Plaintiffs purchased the first parcel, the B & B Farm, in 1961 and the second parcel, the Eli White Farm, in 1968.Defendant, a neighbor, is the owner of several tracts of land, purchased between 1984 and 1985, adjacent to plaintiffs' farms.Across defendant's property traverse the two roadways central to this dispute, known as the "B & B Road" and the "Eli White Road."

After continuing disagreements with defendant, plaintiffs filed a petition in the Circuit Court of Madison County to adjudicate their rights to use the B & B and Eli White Roads.In January of 1989, the trial court entered its amended findings of fact and judgment, holding that plaintiffs are vested with an easement by prescription for ingress and egress to the B & B and Eli White Roads.The trial court declared these easements appurtenant to plaintiffs' property.Defendant, on appeal, challenges this judgment.

In his first point, defendant claims that the trial court erred in failing to apply to his property the "wild lands" exception to prescriptive easements.Defendant maintains that his property is unenclosed, rugged, hilly, and unimproved, and that an easement by prescription cannot be acquired over unfenced and unoccupied lands.If applied, the "wild lands" exception would give rise to the presumption that plaintiffs' use of defendant's roadways was permissive rather than adverse.The trial court, however, held that the "wild lands" exception to prescriptive easements did not apply and we agree.

The "wild lands" exception to prescriptive easements is inapplicable where defendant's land is located in a well settled county and forms no part of an extensive, unimproved, uninhabited area.Carpenter-Union Hills Cemetery Assoc. v. Camp Zoe, Inc., 547 S.W.2d 196, 201-02(Mo.App.1977);Moravek v. Ocsody, 456 S.W.2d 619, 624-25(Mo.App.1970).In reaching its conclusion, the trial court found, and the evidence supports, that the Eli White and B & B Roads are defined travelways in existence for more than forty years.Further defendant's land is located one-fourth of a mile from a lake development, one-half of a mile from several working farms, and three miles from the City of Fredricktown.Since such land could hardly be characterized as part of the vast reaches of undeveloped, unoccupied territory, the trial court committed no error.

Defendant next challenges the trial court's finding that plaintiffs are vested with a prescriptive easement for the Eli White Road.Defendant claims that the Eli White Road is the only means of ingress and egress to the Eli White Farm, and therefore, the use by plaintiffs and plaintiffs' predecessors in title of the Eli White Road is one of "necessity" rather than prescription.Citing Roberts v. Quisenberry, 362 Mo. 404, 242 S.W.2d 26, 28(1951)andMiller v. Berry, 270 S.W.2d 666, 671(Mo.App.1954), defendant argues that an easement of necessity, which would cease when the necessity ceases, and which is permissive by operation of law and not adverse, can never serve as the foundation for a greater prescriptive right.We have no quarrel with this abstract statement of law.Here, however, as in Roberts and Miller, plaintiff's theory was based solely upon a claimed easement by prescription, not by necessity, and the defense asserted was a denial of any right of use, not the lesser right of an easement by necessity.The trial court found each element requisite to the establishment of an easement by prescription and these findings are supported by the evidence.Therefore, the evidence that the Eli White Road is the only means of ingress and egress to the Eli White Farm is not germane to the dispositive issue presented to the trial court.Robertsat 28;Millerat 671.Moreover, a common law easement of...