Brown v. Redfern

• Decision Date: 24 August 1976
• Docket Number: No. 37019,37019
• Parties: Charles A. BROWN et al., Plaintiffs-Respondents, v. Sterling M. REDFERN et al., Defendants-Appellants. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 725

541 S.W.2d 725

Charles A. BROWN et al., Plaintiffs-Respondents, v. Sterling M. REDFERN et al., Defendants-Appellants.

No. 37019.

Missouri Court of Appeals, St. Louis District, Division Two.

Aug. 24, 1976.

McQuie & Deiter, Walter D. McQuie, Jr., Montgomery City, for defendants-appellants.

Edwards, Seigfreid, Runge & Hodge, Jerome W. Seigfreid, Mexico, for plaintiffs-respondents

DOWD Judge.

Defendants appeal from the order of the trial court enjoining any interference with plaintiffs' use of a roadway crossing defendants' land. The trial court found that plaintiffs had established an easement across defendants' land which was a right of way giving plaintiffs access to their property.

The claimed roadway begins at Route 19, travels south over defendants' land, and terminates on plaintiffs' property. At trial, many of the area's residents testified that the roadway had followed the same course and had been used by pedestrains and vehicles for as long as they could remember. There was testimony that the roadway was being used in the 1920's and it is shown on a map prepared in 1942 by a United States Geological Survey. This roadway crosses three tracts of land from north to south which will be referred to as the Fitzwater

                Tract, the Allemann Tract, and Plaintiffs' Tract.  1  The land is located in Montgomery County, Missouri.  Both the Fitzwater and Allemann Tracts are now owned by the defendants.  These two tracts will be considered separately in this opinion because the tracts were held in different chains of title prior to acquisition by the defendants at different times an 1973
                

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Fitzwater Tract was owned by George Meyer until 1956 when the property was conveyed to the Fitzwarters. The deed to the Fitzwaters reserved the use of a roadway across the tract as such roadway was then in existence, referring to the roadway now disputed by the parties. The Fitzwaters conveyed this property to the defendants in February of 1973. The defendants' deed specifies that the property is subject to existing roadways over the premises.

The Allemann Tract adjoins the Fitzwater Tract at the latter's southern border and was owned by Oscar Saak until 1963. In that year, the Saaks conveyed the property to the Allemanns. The Allemanns conveyed the property to the defendants in November of 1973. Neither the Allemanns' deed nor the defendants' deed mentions any roadway. Oscar Saak testified that a roadway across the Allemann Tract existed before he acquired the property and that he had never formally or informally agreed with the owner of Plaintiffs' Tract concerning use of the roadway. During Saak's period of ownership, George Meyer owned Plaintiffs' Tract. Saak's testimony indicates that he merely acquiesced in the use of the roadway by Meyer and tenants on Plaintiffs' Tract. The evidence before the trial court shows that Vernon Allemann reluctantly allowed the plaintiffs to use the roadway after they purchased their land, and communicated with the plaintiffs about sharing the expense of maintaining the road. In 1965, Allemann wrote to plaintiffs, 'as far as to have any objection as to you using the road should not really matter, because it is the road to your farm . . .'

Plaintiffs' Tract is located to the south of the Allemann Tract. The Meyers owned the property for approximately 30 years before they deeded the property to the plaintiffs on December 28, 1964, The Meyers never lived on Plaintiffs' Tract, but George Meyer permitted tenants to occupy the land. The Doyles lived on this property until some time after 1947. During this tenancy, the Doyles used the roadway in question for access to their home. Ken Doyle moved onto the land again in late December of 1963 and also used the disputed roadway for access. George Meyer used the roadway whenever he went to Plaintiffs' Tract. The plaintiffs have used the same roadway following their inspection and purchase of their property in 1964.

The case was tried before the court without a jury. The trial court found that plaintiffs had established an easement by prescription across the Allemann Tract and an easement by prescription and by implication across the Fitzwater Tract. We review this court-tried cause upon both the law and the evidence, giving due regard to the opportunity of the trial court to have judged the credibility of witnesses. We are under an obligation to affirm the judgment of the trial court unless the judgment is not supported

ported by substantial evidence or is against the weight of the evidence, the judgment erroneously declares the law, or the judgment erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

THE ALLEMANN TRACT

The law and the evidence before the trial court support its conclusion that plaintiffs and their predecessor in title had established a prescriptive easement over the Allemann Tract. An easement by prescription is created by a use of property shown to be continuous, uninterrupted, visible, and adverse for a period of 10 years. Successive periods of adverse use may be tacked together if privity exists between the users. Guerin v. Yocum, 506 S.W.2d 46, 47 (Mo.App.1974); Trustees of Forestgreen Estates, 4th Addition v. Minton, 510 S.W.2d 800, 803 (Mo.App.1974). Privity exists between George Meyer and plaintiffs by virtue of Meyer's conveyance of Plaintiffs' Tract to plaintiffs. Meyer, his tenants, ² and the plaintiffs have used the roadway across the Allemann Tract for access to Plaintiffs' Tract for 30 to 40 years prior to institution of this suit.

The use made of the roadway by owners and possessors of Plaintiffs' Tract has been visible, continuous, and uninterrupted. Both Oscar Saak and Vernon Allemann testified that the roadway could be seen as it crossed the Allemann Tract. Allemann testified that he had shown the defendants the roadway before they purchased. Saak, Allemann, and defendants were aware that owners and possessors of Plaintiffs' Tract used the roadway for ingress and agrees. While the roadway was not travelled every day by owners and occupiers of Plaintiffs' Tract, sufficient continuity of use was shown. Whenever Meyer, the Doyles, or the plaintiffs wanted access to Plaintiffs' Tract, they used the roadway across the Allemann Tract. A use is continuous if it is 'traveled at such times by the users as their convenience and business needs required.' Moravek v. Ocsody, 456 S.W.2d 619, 625 (Mo.App.1970).

The evidence does not show that use of the roadway was interrupted prior to institution of this suit. Several gates have been erected along the roadway in the past 10 years, but these gates never actually interrupted use of the roadway. Prior to 1964, only one gate crossed the roadway, and this gate was never locked against the tenants or owner of Plaintiffs' Tract. Erection of gates on the roadway does not prevent creation of an unrestricted easement if the use is not interrupted or restricted by the gates. Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552, 555 (banc 1950).

In the late 1960's, one wire barrier was erected across the roadway which caused a deviation from the old roadway, but this was accomplished with the consent of the plaintiffs and did not interrupt their use of their easement. Plaintiffs merely agreed to a change in the course of their easement for the benefit of Vernon Allemann who wanted the roadway to go around his alfalfa field. None of defendants' efforts to deter plaintiffs from using the roadway were successful in interrupting a use which originated at least 30 to 40 years earlier. In view of the fact that plaintiffs' predecessor in title had established a prescriptive easement across the Allemann Tract, we are unable to find any action by Allemann or the defendants of sufficient quality or duration to have upset the plaintiffs' easement. See Dalton v. Johnson, 320 S.W.2d 569, 574 (Mo.1959).

Ample evidence also supports the conclusion that the use of the roadway over the Allemann Tract was adverse. A use is adverse if, at the time the use is made, the user does not recognize any authority in those against whom the use is claimed to either prevent or permit its continuance.

McDougall v. Castelli, supra; Benson v. Fekete, 424 S.W.2d 729, 738 (Mo.banc 1968). The plaintiffs have shown open, notorious, continuous, and uninterrupted use for more than 10 years, therefore raising a presumption the use was adverse under a claim of right. Guerin v. Yocum, supra, at 48. The defendants did not sustain their burden of proving that the use of the Allemann roadway was permissive or under a license. Defendants apparently assert that the use was permitted by the agreement of Vernon Allemann. We need not determine whether Allemann granted permission to use the land. Oscar Saak testified that no formal or informal agreement was reached concerning the use of the roadway during Saak's ownership of the Allemann Tract. Saak testified that it had always been tacitly understood that the roadway would be used to reach Plaintiffs' Tract. Saak's testimony shows an acquiescence by the owner of the servient tenement rather than a grant of permission. Thus, by 1963 when Saak conveyed the Allemann Tract, an adverse use of the roadway had established a prescriptive easement which could not be converted to a permissive use by subsequently granting permission. Speer v. Carr, 429 S.W.2d 266, 269 (Mo.1968); McDougall v. Castelli, supra.

THE FITZWATER TRACT

The trial court need not have determined, as it did, whether or...