Chapman v. Lavy

Citation20 S.W.3d 610
Parties(Mo.App. E.D. 2000) . Walter E. Chapman, Jr., and Erma C. Chapman, Plaintiffs/Appellants, v. Lewis Lavy and Kimberly Lavy, Defendants/Respondents. Case Number: ED76265 Missouri Court of Appeals Eastern District Handdown Date: 0
Decision Date30 June 2000
CourtCourt of Appeal of Missouri (US)

Appeal From: Circuit Court of Lincoln County, Hon. Fred Rush

Counsel for Appellant: Thomas B. Burkemper and Malaine P. Hagemeier

Counsel for Respondent: John M. McIlroy, Jr., and Amy H. Rost

Opinion Summary: Plaintiffs Chapmans appeal the trial court's judgment in favor of defendants Lavys on the Chapmans' claims for injunction, quiet title, and damages regarding a roadway between their and the Lavys' properties. The trial court found the roadway to be a public road and awarded the Lavys damages in an amount equal to their attorneys' fees.

AFFIRMED IN PART, REVERSED IN PART.

Northern Division holds: (1) The trial court did not err in finding the roadway to be a public road in that substantial evidence supported this determination. (2) The trial court erred in awarding the Lavys attorneys' fees in that no unusual circumstances existed justifying such an award.

Opinion Author: Mary Rhodes Russell, C.J.

Opinion Vote: AFFIRMED IN PART, REVERSED IN PART. Ahrens and Mooney, J.J., concur.

Opinion:

Walter and Erma Chapman ("plaintiffs") appeal from the trial court's judgment finding in favor of Lewis and Kimberly Lavy ("defendants") on plaintiffs' claims for injunction, quiet title, and damages regarding a roadway between plaintiffs' and defendants' properties. The trial court found the roadway to be a public road and awarded defendants damages in an amount equal to their attorneys' fees. We affirm the judgment finding the roadway to be a public road in that substantial evidence supported this determination. We reverse the award of attorneys' fees in that no unusual circumstances existed justifying such an award.

Plaintiffs and defendants are owners of adjacent parcels of land located on County Road 634 in Lincoln County. Plaintiffs' property is west of defendants' property. County Road 634 runs in an east-west direction along the north boundaries of both parcels. The roadway at issue runs south from County Road 634 along the west boundary of defendants' property.

Plaintiffs moved onto their property in 1977, purchasing it in 1978 from a family member. Defendants purchased their property in 1996 and made plans to build a house on it. They informed plaintiffs of their plans and offered to help maintain the roadway during construction. Plaintiffs responded they did not want anyone else using the roadway. Defendants proceeded to grade an entrance off the roadway to their house site.

Plaintiffs filed suit against defendants, seeking an injunction preventing defendants from using the roadway which they claimed they owned through adverse possession. They also sought to quiet title and an award of damages. Defendants stipulated to a temporary restraining order prohibiting them from using the roadway. After a hearing, the trial court entered a preliminary injunction. Defendants thereafter filed a counterclaim, seeking an injunction, to quiet title, and an award of damages.

In its judgment order, the trial court found that the roadway was not sufficiently legally described in plaintiffs' petition. It found that the roadway, except for a small part of it, was located on defendants' property. It further found that the roadway was a county road open to the public, precluding any claims of adverse possession or prescriptive easement.

The trial court found in the alternative that even if the roadway were not a county road, plaintiffs failed to establish the necessary elements of an adverse possession or of a prescriptive easement claim. Finally, the court found that the injunction suit filed by plaintiffs and the temporary injunction obtained thereunder constituted a cloud upon defendants' title.

The trial court entered a judgment declaring the roadway to be a county road open to the public and ordered judgment in favor of defendants. The trial court awarded defendants $4,280 in damages. Plaintiffs appealed.

Our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32. We accept the evidence and inferences favorable to the prevailing party and disregard all contrary evidence. Lake Cable, Inc. v. Trittler, 914 S.W.2d 431, 434 (Mo. App. 1996).

In assessing if there is substantial evidence, we must defer to the trial court on factual issues and cannot substitute our judgment for that of the trial judge. H.S. v. Board of Regents, Southeast Missouri State University, 967 S.W.2d 665, 671 (Mo. App. 1998). Where there is conflicting evidence, the trial court has the prerogative to determine the credibility of witnesses, accepting or rejecting all, part or none of the testimony. Id.

We address plaintiffs' points out of order as their second point is dispositive of the other issues on appeal.

Plaintiffs argue the trial court erred in finding that the roadway was a county road open to the public because the weight of the evidence established that the road had been abandoned by the county.

Defendants did not argue that the roadway was a public road until trial. Until that point, defendants had maintained they owned the roadway by record title. Plaintiffs, however, did not object to the introduction of evidence on the public road theory. As a result, the public road issue is deemed to have been tried by implied consent of the parties. Rule 55.33(b).

Plaintiffs rely on section 228.190 RSMo 1994 providing that "nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same." According to plaintiffs, the substantial weight of the evidence establishes that the roadway was unused by the public for over five years. Therefore, assuming the roadway had been public at one time, it had since been abandoned.

In their argument, plaintiffs appear to be asking us to reweigh the evidence. Under our standard of review, however, we cannot do so. See Mullenix-St. Charles Properties, L.P. v. City of St. Charles, 983 S.W.2d 550, 555 (Mo. App. 1998). Furthermore, plaintiffs' reliance on section 228.190 is misplaced.

A public road may be established in three ways: (1) under section 228.190, (2) by prescription, or (3) by implied or common law dedication. Coffey v. State ex rel. Cty. of Stone, 893 S.W.2d 843, 846 (Mo. App. 1995). Though neither side has chosen to address this particular issue on appeal, we believe the evidence supports a finding of common law dedication.

A claim of common law dedication may prevail absent formal dedication if: (1) there was evidence the owner clearly showed his intent to dedicate the land for public use; (2) the land was accepted by the public; and (3) the land was so used by the public. Moon Equipment Co., Inc. v. Hess, 761 S.W.2d 742, 744 (Mo. App. 1988). Dedication is not required to be accepted by a governmental authority, so long as the land is in fact accepted by the public as demonstrated by the use made of it, which period of use need not exceed any required time limit. Id.

The evidence amply supports a finding of common law dedication of the roadway. The person from whom defendants purchased the property testified without objection that he believed the roadway...

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    ...from other actions taken by other parties in similar situations, or by others trying to achieve the same result." Chapman v. Lavy, 20 S.W.3d 610, 614 (Mo.App. 2000). Thus, we conclude that the trial court also erroneously applied the law in awarding attorney fees to the Ridgways because the......
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