Bridle Trail Ass'n v. O'Shanick, 29314

• Decision Date: 20 March 1956
• Docket Number: No. 29314,29314
• Citation: 290 S.W.2d 401
• Parties: BRIDLE TRIAL ASSOCIATION, a Missouri Corporation, Plaintiff-Respondent, v. Frank O'SHANICK and Nancy H. O'Shanick, his wife, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 401

290 S.W.2d 401

BRIDLE TRIAL ASSOCIATION, a Missouri Corporation, Plaintiff-Respondent, v. Frank O'SHANICK and Nancy H. O'Shanick, his wife Defendants-Appellants.

No. 29314.

St. Louis Court of Appeals, Missouri.

March 20, 1956.

Motion for Rehearing or to Transfer to Supreme Court Denied

and Opinion Modified June 8, 1956.

Ziercher & Tzinberg, Erwin Tzinberg, Clayton, for appellants.

Jones, Hocker, Gladney & Grand and H. C. Gaebe, Jr., St. Louis, for respondent.

SAM C. BLAIR, Special Judge.

The plaintiff, Bridle Trial Association, maintains several miles of bridle trails in St. Louis County for the use of its members and their guests. The segment of the trails which concerns us runs from Clayton Road for several hundred feet south until it reaches a point on defendants' property near its northeast corner. Then it runs diagonally across the northeast corner of their property to its east boundary and enters the property of J. Gates Williams. The terrain the trail occupies in crossing defendants' property is a strip only 12 feet in width and 14.43 feet in length. In July 1954 they completely blocked all use of the strip by erecting a barricade at the point of its entrance and another at the point of its exit on their property. In the trial court the plaintiff was granted a mandatory injunction compelling defendants to remove these barricades and to refrain from interfering with plaintiff's use of the strip. The defendants appeal. Since only injunctive relief is sought by this action, this court has jurisdiction. Smith v. Santarelli, 355 Mo. 1047, 1048, 199 S.W.2d 411, 412; Judge v. Durham, Mo., 274 S.W.2d 247, 250; Burnett v. Sladek, Mo.App., 251 S.W.2d 397, 398.

Plaintiff pleaded a prescriptive right to use the strip, based on the claim, denied by defendants, that is has used it as a part of its bridle trails in a manner that was open, visible, continuous and uninterrupted, adverse and under a claim of right, for more than the statutory 10-year period, V.A.M.S. Sec. 516.010, prior to the erection of the barricades. On this appeal the crucial problem is whether plaintiff's use of the strip has been merely permissive or whether its use has been adverse and has ripened into a prescriptive right. There are other questions in the case, but a solution of this one will dispose of the appeal.

For the plaintiff, there was the following testimony relevant to the use of the strip. The Bridle Trail Association was organized and began functioning in 1924. Its membership has been held to approximately 25 members. Membership carried the privilege of riding on plaintiff's bridle trails. From 1924 until 1954, when the barricades were established, plaintiff's members, and their wives and children if they cared to do so, used the strip on defendants' property in riding from north to south and from south to north on this segment of the trails. From 1924 until 1940, the property on which the questioned strip lies was a vacant and unimproved lot. In the autumn of 1940, Louis A. and Betty Lou McMahon purchased the lot and built a house on it. In August of 1949, they sold the lot to Mrs. Elizabeth Mueller. In May of 1954, Mrs. Mueller sold the lot to Frank and Nancy O'Shanick, the defendants.

Louis A. McMahon testified he bought the lot in the fall of 1940 and built a house on it. None of the Association's officials and none of the riders ever asked permission to use the strip. He merely permitted the use without raising any objection. The plaintiff made no assertion at any time of any right to use the strip. When the lot was sold to Mrs. Mueller in 1949, no reference to an easement was made in the deed and McMahon did not mention the subject to her. McMahon's wife, Betty Lou, testified that riders used the strip to cross the lot and that she raised no objection and gave no one permission at any time to use the strip.

Mrs. Elizabeth Mueller testified she purchased the lot from the McMahons in August 1949 and lived there until May 1954. She had a conversation with C. Virgil Christian, plaintiff's overseer or maintenance, about the use of the strip, and if Mr. Christian stated that she said it was all right for the Association to use the strip, 'he would be right.' She did not object to the use of the strip because her real estate agent told her when she bought the lot that there was 'an easement for the bridle club.' She did not tell Christian that she believed there was an easement and there is no evidence that she told anyone else or that anyone else told her there was an easement. The record does not anywhere disclose who her real estate agent was or why or with what authority he told her there was an easement across the lot. We do not regard his statement or her reliance on it as being of any evidentiary force. She had a conversation with Frank O'Shanick in which she told him she hoped he would never close the trail. She told both Mr. and Mrs. O'Shanick that she was 'glad to see the horses were going through.' She had another conversation with Mr. O'Shanick after the barricades were put in place. She said, 'I see you have barricaded the trail.' 'Q. All right, what else did you say? A. He said, yes, he had.' 'Q. Anything else said at that time? A. I said it was too bad.'

John F. Krey testified he had been a member of the Association since 1929 and had been one of its vice presidents since 1948. The Association held no written easement across the strip. The Association did hold written easements on other properties, but not this one. The witness had no discussions with prior owners of defendants' property regarding use of the strip. He said J. Gates Williams was 'permitting' the Association to use his property. This is the property which the trail enters on the east immediately after crossing the strip on defendants' property.

Louis Werner, another vice president, testified he had been a member of the Association about 20 years and vice president for 'a year or two.' He had no conversations with any owners of the property prior to its purchase by the defendants O'Shanick. After the barricades were established, he went to the defendants' home and had a conversation with Frank O'Shanick. He told O'Shanick that he was one who used the trail. The purpose of visiting O'Shanick was 'I wanted to see if we couldn't get the barricade down.' He asked O'Shanick to take it down, and he may have said, 'and again give the trail permission to cross your property.'

C. Virgil Christian testified he had been overseer of maintenance for plaintiff since 1947. He had no conversation with any owner of the strip prior to its purchase by Mrs. Mueller in 1949. In 1950 he talked with Mrs. Mueller several times. 'I talked about horses, and about the trial there; and she seemed very satisfied that we were using it * * * and she did tell me we were welcome to pass over that portion of the trail.' 'That was when I became acquainted that that portion of the property belonged to her.'

'Q. And did you ask Mrs. Mueller whether it was all right to go ahead and go over that part of the property? A. I did, yes, sir.

'Q. You asked her permission? A. I asked her if it was all right. * * * She stated that that portion of the property did belong to her and that we were welcome to ride through there.'

'Q. At that time you didn't tell her you had a right to go over the property, did you? A. No, sir, I did not.'

After the defendants purchased the property from Mrs. Mueller, the president of the Association told Christian, 'Perhaps it would be a good idea if we became acquainted with the man (O'Shanick) and talked with him.' Christian called on O'Shanick. He did not tell O'Shanick the Association had a right to use the strip. Discussing use of the trail with O'Shanick, Christian did offer to 'go ahead and keep it clean and decent' and offered to give O'Shanick a load of manure. He denied that these offers were for permission to use the strip. He had previously called Mrs. O'Shanick and told her he would like to get acquainted with defendants 'and talk about the trail.' After the barricade was erected, Christian again talked to O'Shanick. 'Q. Didn't you ask him if he wouldn't give you permission to cross the property? A. I believe I did ask him that, yes, sir.'

Eugene F. Williams testified that he was president of the Association. He became its vice president when it was organized and he held that office until he became its president. At the date of trial, November 22, 1954, he had been its president for twelve years. The Association did not enter any agreement of any kind, written or oral, with the McMahons. The McMahons did not protest the use of the strip so 'we presumed to use it.' 'Mrs. Mueller told Christian, and he told me, that she didn't object' to the Association using the strip. The property on the east and immediately adjacent to the tract the defendants now own belonged to J. Getes Williams, brother of the witness. J. Gates Williams 'permitted' the Association 'to go through there.' The witness did not talk with the McMahons about using the strip, for 'I thought the property' on which the strip lay 'belonged to J. Gates Williams,' that it was 'part of the property which J. Gates Williams had given' the Association 'permission to use.' The Association had 'no defined easement of any sort' on the Williams property. The witness did not learn that the strip was not a part of the Williams land until Mrs. Mueller sold her property to defendants in 1954. Although the witness actually believed the strip lay on the Williams property, he had no 'actual knowledge' of the identity of the true owner.

For the defendants, there was the following testimony relevant to the nature of the use of the strip. Mrs. Nancy O'Shanick testified that Christian telephoned her prior to the date they moved into the house and told her he wanted to discuss the bridle trail crossing the property with Mr. O'Shanick and asked her if she 'had any objection to the...