Cheatham v. Melton, 41009

• Decision Date: 15 January 1980
• Docket Number: No. 41009,41009
• Citation: 593 S.W.2d 900
• Parties: James I. CHEATHAM et al., Plaintiffs-Respondents, v. Tina MELTON et al., Defendants, Euel Cheatham and Virginia Cheatham, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 900

593 S.W.2d 900

James I. CHEATHAM et al., Plaintiffs-Respondents, v. Tina MELTON et al., Defendants Euel Cheatham and Virginia Cheatham, Defendants-Appellants.

No. 41009.

Missouri Court of Appeals, Eastern District, Division Two.

Jan. 15, 1980.

Ray E. White, Jr., Clayton, for defendants-appellants.

Jack C. Stewart, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, P. C., Hillsboro, for plaintiffs-respondents.

GUNN, Presiding Judge.

This appeal arises from a fraternal dispute over the use of a common driveway or roadway located upon the boundary between two contiguous parcels of land owned respectively by two brothers and their spouses. The germ seeds of the disagreement were planted when defendants-appellants Euel Cheatham and his wife attempted to permit a public utilization of the driveway as a means of crossing land owned by them as an access to various destinations.

Plaintiffs-respondents James Cheatham and his wife, being jealously solicitous of their privacy and repose, objected to the expanded use. After informal attempts to stem the tide of public traffic proved futile, James Cheatham brought this trespass action for damages and an injunction against his brother Euel and wife, their son and his spouse residing on a portion of Euel's parcel, and certain other persons residing in a nearby subdivision, the latter being principally responsible for the increased use of the driveway. From a judgment awarding nominal damages and enjoining all defendants from utilizing the driveway for any purpose other than gaining access to or egress from the parcels owned by the brothers, only defendants Euel Cheatham and his wife Virginia appeal. Appellant-defendants' principal contentions before us are that the trial court erred in finding there had been no common law dedication of the driveway to the public; that the public use was concurrent and did not interfere with or overburden the brothers' enjoyment of the driveway, also contrary to findings of the trial court; and that the injunction impermissibly interfered with defendants' use of their own land.

We amend the injunction decreed by the trial court in accordance with the principles embraced in this opinion and, as amended, affirm.

Visualization of the graphic circumstances is crucial to an understanding of the case. A simplified diagram of the involved area illustrates as follows:

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

The following account is based on the record before us. James and Euel Cheatham, together with their respective spouses, purchased lot 11 (see diagram) of Mount View Subdivision in Jefferson County in 1947. In 1951, the lot was divided as appears on the diagram and the division line surveyed. The brothers assisted each other in constructing a residence for each family on their respective portions of lot 11. A common driveway ¹ was jointly constructed at that time and subsequently maintained by the brothers for the purpose of gaining access to the residences. It was located on the boundary line between the two plots so that it lay in part on land belonging to each brother. The driveway was, in effect, an extension of Forest Lane, a Mount View Subdivision street which terminated at the southern boundary of lot 11. The common driveway did not cross lot 11 but terminated in a turnaround or loop located near a common well used by the brothers approximately 100 feet north of lot 11's southern boundary. It was used by all the Cheathams, including defendant Euel's son Grover and his wife who purchased and resided upon a portion of Euel's parcel, under a tacit agreement between them that it was a joint driveway. Plaintiff James Cheatham testified that he had no objection to its use by any of the Cheatham defendants for access to lot 11 or use by any other persons visiting or having business with them. There was evidence that the driveway had always been used by tradesmen, delivery personnel, mail carriers, business invitees and other private visitors to the residences on lot 11, all without objection by anyone.

The present difficulties arose in 1974, when Euel acquired some additional property to the north of lot 11, including a parcel in exchange for an easement in favor of certain persons owning lots in Tangee Terrace subdivision. The easement coincides with a road built on and across Euel's parcel as indicated on the diagram and merges with the joint driveway. The roadway established along this easement thus had the effect of opening up the joint driveway to through public traffic. James objected to the increase in usage and among other measures placed signs at either end of the joint driveway declaring the public use to be forbidden. His attempts to curtail the expanded use ultimately proved ineffectual, and this suit was brought against the Euel and Grover Cheatham families, together with those persons residing in Tangee Terrace and holding the easement granted by Euel. The trial court found that the driveway was a common drive with reciprocal prescriptive rights thereto in each brother, and that it had always been, and still remained, private in nature despite defendant Euel's attempts to open it up to expended or public use. The defendant Cheathams were enjoined as follows:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY the Court that Plaintiffs, James I. Cheatham and Dorothy Cheatham, his wife, and Defendants Euel Cheatham and Virginia Cheatham, his wife, and Grover Cheatham and Barbara Cheatham, his wife, have joint access rights to and from Lot Eleven (11) of Mount View Subdivision from Forest Lane northward along an established roadway upon or near the division line between the properties of Plaintiffs and Defendants, to an existing well curb and no further, for the purpose of gaining access from Forest Lane upon and to Lot Eleven (11), but not for the purpose of gaining access from or to Lot Eleven (11) from or to lands to the north of said Lot Eleven (11); that said Parties and those holding under them as to tenancies and interest in Lot Eleven (11) have the same rights to said joint road and driveway; and the interest of said persons and those claiming under them and their successors shall be subject to said joint road and driveway.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the court that all of the Defendants and their heirs, successors and assigns acquiring interest from said Defendants after September 25, 1975, be, and they are hereby perpetually enjoined from entering upon Lot Eleven (11) of Mount View Subdivision as described herein and the common driveway thereon and the road constructed from the north end of said driveway to the northern boundary of Lot Eleven (11) for any purpose other than gaining access to or from said Lot Eleven (11) to or from Forest Lane of said Mount View Subdivision.

Before proceeding to the merits of the case, we consider the challenge raised by James to the sufficiency of the jurisdictional statement, statement of facts and "points relied on" of Euel's brief on appeal. While Rule 84.04, governing the form and contents of appellate briefs, should be strictly applied if the fairness and efficiency of the appellate process is to be preserved, Associates Discount Corp. of Iowa v. Fitzwater, 518 S.W.2d 474 (Mo.App.1974), application of the rule must be balanced against our duty to finally dispose of each case on the merits where reasonably possible. State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473 (Mo.App.1972).

Although some deficiencies do exist in Euel's jurisdictional statement, it is, at least, minimally acceptable. Gilmore v. Letcher, 508 S.W.2d 257 (Mo.App.1974). The same is true of the statement of facts and the points relied on. See: Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978); Hayes v. Reynolds, 579 S.W.2d 119 (Mo.App.1979). We discern no prejudice to James as a result of...