Charles v. Castro, No. 29780 (Mo. App. 2/24/2010)

• Decision Date: 24 February 2010
• Docket Number: No. 29780.,29780.
• Citation: Charles v. Castro, No. 29780 (Mo. App. 2/24/2010), No. 29780. (Mo. App. Feb 24, 2010)
• Parties: Charles and Katherine Buckner, husband and wife, Appellants, v. Roxie Castro, Respondent.
• Court: Missouri Court of Appeals

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Charles and Katherine Buckner, husband and wife, Appellants, v. Roxie Castro, Respondent.

No. 29780.

Court of Appeals of Missouri, Southern District, Division One.

Opinion filed February 24, 2010.

Appeal from the Circuit Court of Greene County, Missouri Honorable J. Dan Conklin, Judge.

Richard T. Ashe, Appellants' attorney.

Thomas W. Millington & Taylor C. Moore, Respondent's attorneys.

ROBERT S. BARNEY, Judge.

Charles Buckner ("Mr. Buckner") and Katherine Buckner ("Mrs. Buckner") (collectively "Appellants") appeal the judgment of the trial court which denied their request for a prescriptive easement and attendant injunctive relief relating to land owned by Roxie Castro ("Respondent"). The area in dispute is a pathway ("the Lane") approximately 660 feet in length which is located along the southernmost border of Respondent's property, adjoins the easternmost north-south line of Appellants' property, and leads to Farm Road 229 in Greene County, Missouri.¹ In its judgment, the trial court determined that Appellants had failed to prove the "adverse nature of their use" preliminary to establishing a prescriptive easement and were not entitled to a presumption of adversity due to the rural nature of the land. Further, the trial court found that even if a prescriptive easement had been created: (a) it would have been extinguished by ten years of non-use; (b) there was an intent to abandon manifested by two decades of non-use; and (c) as set out in Respondent's counterclaim, even if a prescriptive easement had been established, it was extinguished through the adverse possession of the Lane by Respondent and her predecessor in title from 1991 to 2004.

The record reveals Appellants and Respondent are neighboring landowners in the rural northern portion of Greene County, Missouri. In 2005, Appellants purchased a rectangular sixty-acre tract of land ("the Buckner Property") which adjoins the easternmost boundary of their already existing two-hundred-forty-acre farm. Prior to their purchase of the property in 2005, Appellants had leased the Buckner Property since approximately1996 or 1997. The record further shows that Respondent owns a five-acre tract of land which lies between the Buckner Property and Farm Road 229. Respondent purchased the five-acre tract in 1998 from Joe Goddard ("Mr. Goddard").

On January 17, 2007, Appellants filed their "First Amended Petition to Quiet Title and Enforce Prescriptive Easement" against Respondent.² In their petition, Appellants asserted that in the past Appellants and their predecessors in interest "have maintained or improved the [Lane]," and that Appellants and their predecessors in title "have used the [Lane] for more than 40 years to provide access from their real estate to Farm Road 229 for the purpose of ingress and egress." They sought "a judgment and decree stating and holding that they are the owners of an easement by prescription over [Respondent's] property, and that [Respondent] be permanently enjoined from obstructing that roadway easement . . . ."

Respondent posed affirmative defenses setting out that the Lane had not been used as a roadway for a period of about thirty years by Appellants or their predecessors in interest, and to the extent they may at one time have had any right to use the Lane, these rights and the Lane had been abandoned due to lack of use. Furthermore, reflecting her affirmative defenses, Respondent filed a counterclaim against Appellants in which she asserted there had been no use of the Lane by Appellants or their predecessors in interest for such a length of time that any roadway that may have existed was now abandoned; that Respondent and her predecessors in interest claimed her entire five-acre property to the exclusion of all others and there were no easements, claims of right of ingress or egress, or other similar encumbrances on her property; that Respondent and her predecessors in interest have "maintained exclusive use of possession of the entire five[-]acre tract;" and that such use has "been open, continuous, notorious, and under claim of right, title and ownership . . ." for a period of time in excess of ten years such that "[a]ny right of ingress and egress which may have existed at any point in time on the part of [Appellants] or [their] predecessors in title has been adversely possessed by [Respondent], or her predecessors in title." Therefore, Respondent prayed that the trial court declare her to be the owner of the entire five-acre tract "including all parts thereof, and without being subjected to any right of claim of use on the part of [Appellants] for the purposes of ingress or egress, or otherwise and quieting title in [Respondent] . . . ."

A bench trial was held November 6, 2008, and as previously related, in its Findings of Fact and Conclusions of Law and Judgment, the trial court found the issues in favor of Respondent.

Appellants now assert four points relied on. In Point I they maintain the trial court erred in denying their claim for a prescriptive easement for failure to show "adversity." Specifically, they assert "that a particular use of another's land . . . normally justifies a finding that the use has been adverse" such that they were entitled to a "presumption of adversity" based on Appellants' predecessor's continuous, uninterrupted and visible use of the Lane for more than ten years. They also maintain that this presumption was not extinguished by application of the "wild land exception," alluded to by the trial court when it determined Appellants were not entitled to a presumption of adversity due to the rural nature of the land because the foregoing exception had no application in the instant matter in that Respondent's property is located in "well[-]settled Greene County."

In Point II, Appellants premise error on the trial court's determination that Respondent had extinguished the prescriptive easement over the Lane by her adverse possession "in that the evidence presented by [Respondent] showed no more than seven years of exclusive possession of the [L]ane." In Point III, Appellants maintain the trial court erred in finding in favor of Respondent's affirmative defense of abandonment since there was no probative evidence of intentional abandonment. Lastly, in Point IV, Appellants assert the trial court erred when it found in favor of Respondent's affirmative defense that the easement had been extinguished by non-use because the trial court had erroneously declared the law, its finding was not supported by substantial evidence, and it was against the weight of authority. Appellants maintain the trial court erred in concluding that ten years of non-use alone, without an intentional act of abandonment, is sufficient to extinguish an easement by prescription and in finding that the easement had not been used by Appellants or their predecessor for a continuous period of twenty years.

"In a court tried case, the decision of the trial court should not be reversed `unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.'" Smith v. Chamblin Props., LLC, 201 S.W.3d 582, 586 (Mo.App. 2006) (quoting Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)); see Rule 84.13(d), Missouri Court Rules (2009). "`We view the evidence and permissible inferences therefrom in the light most favorable to the judgment and disregard all contrary evidence and inferences.'" Kirkpatrick v. Webb, 58 S.W.3d 903, 905 (Mo.App. 2001) (quoting Anderson v. Mantel, 49 S.W.3d 760, 763 (Mo.App. 2001)). "`Credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of any witness's testimony.'" Kirkpatrick, 58 S.W.3d at 905-06 (quoting Black v. Simpson, 4 S.W.3d 175, 177 (Mo.App. 1999)).

This Court "`is primarily concerned with the correctness of the trial court's result, not the route taken by the trial court to reach that result.'" Basham v. City of Cuba, 257 S.W.3d 650, 653 (Mo.App. 2008) (quoting Bus. Men's Assur. Co. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999)). "`Thus, the judgment will be affirmed if cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient.'" Id. (quoting Bus. Men's Assur. Co., 984 S.W.2d at 506).

Accordingly, even assuming the trial court erred when it determined Appellants were not entitled to a prescriptive easement as asserted in their Point I, it is our view that the trial court did not err in its determination that any existing prescriptive easement was extinguished by the adverse possession of the Lane by Respondent. Point II is dispositive of this appeal. We need not review Points I, III or IV, as they are moot and do not affect the ultimate outcome of this case.

In their second point relied on Appellants maintain the trial court erred in finding in favor of Respondent on her claim for adverse possession because "the judgment erroneously applied the law and . . . is not supported by substantial evidence, in that the evidence presented by [Respondent] showed no more than seven years of exclusive possession of the Lane."

"An easement can . . . be extinguished by adverse possession." Creech v. Noyes, 87 S.W.3d 880, 885 (Mo.App. 2002); see also Franck Bros. Inc. v. Rose, 301 S.W.2d 806, 811 (Mo. 1957). In this connection, "[a]n easement can be extinguished by an `occupation on the part of a person other than the owner of the easement adverse to the right claimed, in connection with nonuse[ ] by the owner of the easement.'" Nolte v. Corley, 83 S.W.3d 28, 34 (Mo.App. 2002) (quoting Loumar Dev. Co. v. Redel, 369 S.W.2d 252, 257 (Mo. 1963)). "The possession must be (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive, and (5) continuous for a period of ten years." Id.; see also Boyles v. Mo....