Carpenter-Union Hills Cemetery Ass'n v. Camp Zoe, Inc.

• Decision Date: 08 February 1977
• Docket Number: CARPENTER-UNION,No. 10090,10090
• Parties: HILLS CEMETERY ASSOCIATION, a Not-For-Profit Corporation, and Mary Lindsey, Plaintiffs-Respondents, v. CAMP ZOE, INCORPORATED, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 196

547 S.W.2d 196

CARPENTER-UNION HILLS CEMETERY ASSOCIATION, a Not-For-Profit Corporation, and Mary Lindsey, Plaintiffs-Respondents, v. CAMP ZOE, INCORPORATED, Defendant-Appellant.

No. 10090.

Missouri Court of Appeals, Springfield District.

Feb. 8, 1977.

Richard D. Moore, Moore & Brill, West Plains, for defendant-appellant.

Jerry L. Wilkerson, Ball & Wilkerson, Salem, for plaintiffs-respondents.

FLANIGAN, Judge.

In this action plaintiffs sought, and the trial court granted, an injunction permanently restraining defendant "from obstructing, barricading, or in any other way interfering with" plaintiffs' use of a certain road, referred to in the record as the Green Road. Defendant appeals.

Appellate review of this non-jury action is governed by Rule 73.01 V.A.M.R. as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The Green Road affords access from Highway 19, in Shannon County, Missouri, to a cemetery "known variously as the Carpenter-Union Hills Cemetery or the Union Hills Cemetery." Plaintiff Carpenter-Union Hills Cemetery Association is a Missouri not-for-profit corporation organized to maintain the cemetery. Plaintiff Mary Lindsey has relatives buried in the cemetery, as do several officers and members of the corporate plaintiff. ¹

The petition alleged that the defendant owned the "Northwest Quarter of Section 8, Township 30 North, Range 40 West" in Shannon County, Missouri, except a three-acre tract on which the cemetery is located. The answer admitted that the defendant owned the northwest quarter of Section 8. The evidence showed that the cemetery is located in the west half of the northeast quarter of Section 8, thus lying some distance east of defendant's land. Section 5 is located north of and adjacent to Section 8. Highway 19 runs generally north and south through Section 7 which is located west of and adjacent to Section 8.

The Green Road, for the purpose of describing it, may be considered as consisting of five segments. Segment I commences in Section 7, at a point where the Green Road intersects Highway 19, and proceeds easterly approximately 200 feet to the west line of Section 8, which line is also the western boundary of defendant's land. Segment II commences at that point and proceeds northeasterly across defendant's land and ends at the north line of Section 8, which line is defendant's northern border. Segment III commences at that point and continues northeasterly into Section 5, then easterly, then southeasterly to a point on the north line of Section 8 where it reaches the northern boundary of defendant's land. From that point Segment IV runs southerly or southeasterly across defendant's land to defendant's eastern border. Segment V commences at that point and runs easterly to the cemetery.

It will be observed that only two of the segments (II and IV) run across the land of defendant. The owner of the land across which Segment I runs was not identified, although one witness thought "it belongs to the federal government." Segment III runs across land owned by Leo Dry. The ownership of the land across which Segment V runs is not made clear by the record.

In 1970 or 1971 defendant erected a gate across the Green Road at the west end of Segment II. In 1974, defendant locked the gate, thereby precipitating this action.

The petition advanced several theories on which plaintiffs predicated their claim to a right to use the Green Road for access to the cemetery from Highway 19 and to injunctive relief against defendant's interference therewith. One theory was that plaintiffs had acquired an easement by prescription. Other theories included "adverse possession," "dedication," and the establishment of the Green Road as "a legally established road" by reason of the expenditure of public money or labor pursuant to § 228.190 RSMo 1969, V.A.M.S.

The trial court found, among other things, that no roadway other than the Green Road "reaches the cemetery from Highway 19." However, the trial court did not state specifically which theory or theories it adopted in granting plaintiffs the injunction. If plaintiffs were entitled to relief on the theory that they had an easement by prescription, the validity or invalidity of other possible theories need not be explored. Guerin v. Yocum, 506 S.W.2d 46, 47(2) (Mo.App.1974).

To sustain a claim to an easement by prescription the plaintiffs must prove four essential facts. They are: (1) the user was for the prescribed period; ² (2) the user was adverse; (3) the user was under a claim of right; and (4) the owner had notice of the user, and of its character and of the claim of right. Roberts v. Quisenberry, 362 Mo. 404, 242 S.W.2d 26, 28(2) (1951).

Defendant's first appellate contention, the invalidity of which is dispositive of this appeal and requires affirmance, is that the evidence is insufficient to show acquisition of an easement by prescription because: (a) "the user was not presumptively adverse and plaintiffs did not introduce any evidence to show that the user was adverse"; (b) even if the user was presumptively adverse, defendant offered evidence (to be detailed later in this opinion) which rebutted the presumption; (c) even if plaintiffs did introduce evidence of adverse user, it was not "clear and convincing evidence" because an alternative access road existed at the time of the initial use of the Green Road and because defendant had and has "no objection to the use of the Green Road for access to the cemetery."

Plaintiffs' evidence was presented by ten witnesses and included an aerial photograph of the general area, showing the cemetery, the Green Road, and Highway 19. Other photographs showed the various segments of the Green Road. The Green Road, plainly visible, appears from the photographs to be well traveled. Portions of it seem to be graveled. It goes through some land which is fenced and passes by some buildings. Some portions of it seem to pass through wooded areas but other portions pass through areas which have been cleared. The cemetery is a large one. Many prominent headstones are there, some of recent vintage, and at least one bears an inscription indicating it was placed there in 1902. Photographs demonstrate that the cemetery has been well kept.

Photographs introduced by the defendant also show many of the features enumerated in the preceding paragraph. Defendant's land, since 1928, has been used as "a private summer camp for boys and girls" and is operated under the name of "Camp Zoe."

Plaintiffs' witnesses, most of them elderly, gave testimony to the effect that the Green Road had been used extensively and continuously by "lots of people" for many years. One witness said it had been in use since she was eight years old and she was 78. Wagons, teams of horses, cars, and pickup trucks used it over the years. The Green Road was used for access to the cemetery before Highway 19 was built in the middle 1920's. None of plaintiffs' witnesses had ever asked permission from anyone to use the road "I did not feel I needed to, no one ever tried to stop me." The witnesses had relatives or in-laws buried in the cemetery and they visited the cemetery with frequency by using the Green Road from Highway 19.

One of the witnesses for plaintiffs was Joe Thompson, age 80, who, from 1944 to 1949, owned some of the land on Segment IV now owned by the defendant. The Thompson place was "next to the cemetery." No one ever asked him for permission to use the Green Road and it had been in use, to his knowledge, since 1904. Over the years he has used it "every two or three weeks."

Another witness for plaintiff had lived on the Thompson farm from 1939 to 1943. She testified that the Green Road to her knowledge had been used since 1933, that no one had ever asked permission to use it, and that all types of vehicles used it "lots and lots of times a year." Another witness had lived at a house along the Green Road in 1937 and gave similar testimony concerning extent of use. Prior to the erection of the gate and the later locking of it by defendant, there had been no interference with the use of the road.

From Miller v. Berry, 270 S.W.2d 666 (Mo.App.1954) may be extracted basic principles, supported by numerous authorities there cited, applicable to the acquisition of easements by prescription. They include the statements contained in the following paragraph.

The burden is upon the plaintiffs to show the various elements, "the four essential facts," by clear and convincing proof. However, in the absence of some showing that the use was permissive in its origin, it is well settled that when one claims an easement by prescription and shows an open, continuous, visible, and uninterrupted use for the statutory period, the burden is cast upon the land owner to show that the use was permissive, rather than adverse, if the land owner claims that it was permissive. Mere use of a passage over another's land for a long time with his knowledge is not necessarily an adverse use and if it is permissive in its inception, such permissive character, being stamped on the use at the outset, will continue of the same nature and no adverse user will arise until a distinct and positive assertion of a right hostile to the owner, and brought home to him, can transform a subordinate and friendly holding into one of an opposite nature. Mere permissive use of land cannot ripen into an easement.

" '( B)ut the use of the land is adverse, as against the owner, if it is not made in subordination to him, is open and notorious and is not ³ wrongful as to him. * * * " Adverse," under the definition, means that the one making the use "shall not recognize in those as against whom it is claimed to be adverse an authority either to prevent or to permit its continuance. It is the non-recognition of such authority at the time a use is made which determines whether it is adverse. " ' Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894, 897, 899. See also 25...