Bladdick v. Ozark Ore Co., 50147

• Decision Date: 13 July 1964
• Docket Number: No. 1,No. 50147,50147,1
• Citation: 381 S.W.2d 760
• Parties: John BLADDICK and Marguerite Bladdick, Appellants, v. OZARK ORE COMPANY, a Delaware Corporation, Respondent
• Court: Missouri Supreme Court

Page 760

381 S.W.2d 760

John BLADDICK and Marguerite Bladdick, Appellants, v. OZARK ORE COMPANY, a Delaware Corporation, Respondent.

No. 50147.

Supreme Court of Missouri, Division No. 1.

July 13, 1964.

Motion for Rehearing or to Transfer to Court En Banc Denied

Sept. 14, 1964.

Arthur H. Slonim, Clayton, Sidney L. James, St. Louis, for appellants John Bladdick and Marguerite Bladdick.

Biggs, Hensley, Curtis & Biggs, Davis Biggs, William C. Dale, Jr., St. Louis Edgar & Edgar, William R. Edgar, Jr., Ironton, for respondent Ozark Ore Co., a Corporation.

HOUSER, Commissioner.

This is a suit for $7,500 actual and $50,000 punitive damages brought by John Bladdick and wife against Ozark Ore Company for interfering with plaintiffs' easement for the use of a roadway over defendant's lands. A trial jury returned a verdict for defendant. Plaintiff has appealed.

In 1941 the Bladdicks bought the surface rights to a tract of 112.5 acres for $500. The nearest public road was about a mile from the property. Defendant's lands surround the Bladdick property on three sides. An old 20-foot roadway running across defendant's lands connected the Bladdick property with the public highway, hereinafter referred to as 'the original connecting roadway.' John Bladdick knew that the original connecting roadway had been used by another farmer 'in back of' Bladdick, apparently by acquiescence of defendant, and the Bladdicks began to use it for ingress and egress, without asking defendant for permission. No one told the Bladdicks that they could not come and go over the roadway. The Bladdicks improved their property, moved onto the farm in 1943, and continued to live there until 1956. In November, 1944 defendant's attorney wrote John Bladdick a letter expressing defendant's desire to acquire a 50-foot right of way for road purposes over Bladdicks' 112.5 acre tract and enclosed a plat showing the exact location of the desired roadway. The attorney pointed out that Bladdick's only access to his land was by traveling over defendant's lands from the public highway. In return for the desired right of way over the Bladdick tract defendant proposed to give Bladdick, his heirs and assigns, the right to use the 50 foot roadway over his own land, and in addition thereto 'the right to use the present established road on [the ore company's] lands from the public highway, near the old office building to the point where you cross the railroad to come onto your land.' It was suggested that the execution of the following proposed agreement (omitting attestation clause and signatures) would be to the mutual advantage of the parties:

'RIGHT OF WAY AGREEMENT

'WHEREAS, John Bladdick and Marguerite Bladdick, his wife, of Granite City, Illinois, are the owners of a certain tract of 112 1/2 acres of land lying in the Southwest quarter of Section 30 Township 35 North, Range 4 East, in St. Francois County, Missouri, lying on the West side of the Missouri Pacific Railroad; and

'WHEREAS, Ozark Ore Company, a Delaware corporation, owns lands adjoining the tract belonging to John Bladdick and wife, immediately West thereof, immediately North thereof and immediately East thereof; and

'WHEREAS, Ozark Ore Company is desirous of obtaining a right of way for road purposes across the lands of the said John Bladdick and wife; and

'WHEREAS, the said John Bladdick and wife are desirous of obtaining a right of way for road purposes across the lands of Ozark Ore Company, lying East of the lands belonging to the said John Bladdick and wife;

'NOW, THEREFORE, for their mutual benefit, the parties hereto agree as follows:

'The said John Bladdick and Marguerite Bladdick, his wife, do by these presents Grant, Bargain and Sell, Convey and Confirm, unto Ozark Ore Company, its successors and assigns, the following described tract of land, namely: [here follows a metes and bounds description of a tract of land 721 feet long and 50 feet wide, containing 0.82 acres].

'The conveyance of the strip of land last described is made for road purposes and it is understood as a part of the consideration for this conveyance that Ozark Ore Company, its successors and assigns, shall at all times, at their own expense, maintain and repair said road way.

'Ozark Ore Company, a corporation aforesaid, does by these presents Grant unto the said John Bladdick and Marguerite Bladdick, his wife, their heirs and assigns, the unrestricted right to use of said roadway and the right of ingress and egress over, across and upon other lands of Ozark Ore Company lying East of the lands belonging to the said John Bladdick and wife, to enable them, their heirs and assigns, to obtain access to the public highway at Iron Mountain, Missouri; it being understood and agreed that the said John Bladdick and wife, their heirs and assigns, shall restrict their use of said privilege to the established roadway across the lands of Ozark Ore Company connecting the roadway herein conveyed with the public highway at Iron Mountain, Missouri.'

The Bladdicks executed several copies of the foregoing agreement, as did defendant, and it was filed for record in the office of the recorder of deeds. At the time of the execution of the instrument John Bladdick knew that defendant was conducting open pit mining operations on its lands within 200 yards of the connecting roadway, and that ore was being hauled out of the ground. These mining operations continued from 1944 to 1956. During that 13-year period the Bladdicks continued to use the original connecting roadway. In 1941 it was the only established roadway that crossed defendant's lands and connected with Bladdick's tract; the only means the Bladdicks had to get to and from the public highway. Defendant also used this roadway, to get to their pumps. In the fall of 1956 the Bladdicks moved away from the property, returning every other weekend until the spring of 1957 when the house located on the tract burned down. Thereafter from 1957 to 1959 they returned to the property only twice a year. Defendant maintained the original connecting roadway at its own expense. Bladdick was not asked to contribute to its upkeep and did not do so. Defendant made a slight change or jog in the original connecting roadway in 1954 and again in 1957. These minor deviations from the route were not objected to by Bladdick, since 'they had it well fixed.'

In the fall of 1959 defendant desired to mine an ore body located under the original connecting roadway at a point about 3/4 of a mile from the Bladdick tract. To do this mining it was necessary to destroy the road a length of about 400 feet and remove the rock, dirt and clay thereunder. Defendant's superintendent was informed by its chief clerk of the existence of the right of way agreement. The superintendent knew that the Bladdicks owned the tract to which the original connecting roadway gave them access, and knew that they had been using this roadway. After reading the agreement the superintendent caused the original connecting roadway to be stripped away, resulting in a hole or crater 20 or 30 feet deep and approximately 100 yards square, thereby rendering permanently impassable that part of the original connecting roadway. This action was taken without any notice or warning to the Bladdicks of intention to remove a portion of the road and to interrupt the use of the original connecting roadway at that point, or to relocate a segment of that roadway, and without gaining their permission or consent to make the change. Defendant's superintendent did not consider it necessary to notify the Bladdicks of the intended change. The change has prevented the Bladdicks from using the segment of the original connecting roadway nearest the public highway. The portion of the original connecting roadway nearest the Bladdick tract (the first three quarters of the road as one leaves the Bladdick property and proceeds toward the public highway) follows the same course and is the same road that existed there at the time the Bladdicks bought their tract, but since the change a traveler leaving the highway, intending to use the original connecting roadway, is confronted with a locked gate.

Before the above described section of the original connecting roadway was destroyed defendant built a new segment of road from the point of the excavated area to the public highway, a distance of 1,000 feet or more, to be used in place of the segment destroyed by the mining operation. Defendant's superintendent testified, 'We re-established part of the road prior to the time of the removal of the old road.' The new segment terminated at a point entering the public highway several hundred feet distant from the point at which the original connecting roadway had emerged from defendant's lands. From the Bladdick tract to the public highway the length of the original connecting roadway was 4800 feet. The route as relocated is 4600 feet in length. There was no time during which a connecting roadway could not be used either on its original or present course. When the new segment was completed for use defendant's superintendent left instructions that the Bladdicks be directed and assisted in its use. No other notice of relocation was given to them. On their first trip to the property after the relocation the Bladdicks encountered a gate across the original connecting road, right at the public highway, bearing the sign 'Private Property No Trespassing.' The gate was locked with a padlock and chain. On inquiry they were directed over the new portion of the roadway. It was raining. The Bladdick car slipped off the new road, got stuck at a point some 200 feet off the new segment of the roadway, and had to be pulled out by a truck. Thereafter the Bladdicks used the new segment two, three or four times but with difficulty, for the assigned reasons that it is not as straight or solid as formerly, and that John Bladdick has difficulty at one fork in the road which opens up three routes,...