Connell v. Baker, 8933

• Decision Date: 16 September 1970
• Docket Number: No. 8933,8933
• Citation: 458 S.W.2d 573
• Parties: William C. CONNELL and Emma J. Connell, Plaintiffs-Respondents, v. J. R. BAKER and Mrs. J. R. Baker, Defendants, and Ervin Gore and Rainey Gore, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 573

458 S.W.2d 573

William C. CONNELL and Emma J. Connell, Plaintiffs-Respondents, v. J. R. BAKER and Mrs. J. R. Baker, Defendants, and Ervin Gore and Rainey Gore, Defendants-Appellants.

No. 8933.

Springfield Court of Appeals, Missouri.

Sept. 16, 1970.

Wangelin & Friedewald, Poplar Bluff, for defendants-appellants Ervin Gore and Rainey Gore.

James R. Hall, Doniphan, for plaintiffs-respondents.

STONE, Judge.

In this action plaintiffs, William C. Connell and Emma J. Connell, as the 'equitable owners' (under a contract to purchase) of a 20-acre tract in Carter County, Missouri (hereinafter referred to as 'plaintiffs' tract') sought a mandatory injunction requiring removal of obstructions from an alleged 'public road' running from that tract in a general northerly direction for a distance of approximately one-quarter mile across a contiguous tract of undisclosed acreage (hereinafter referred to as 'defendants' tract') on which defendants Ervin Gore and Rainey Gore resided, and of which they were possessed, under a contract to purchase that tract from defendants J. R. Baker and Mrs. J. R. Baker. Defendants Baker, the record owners of both plaintiffs' tract and defendants' tract, were served with summons but filed no pleading and made no appearance. From a decree granting the requested injunctive relief, defendants Gore appeal.

Whether plaintiffs might enjoin obstruction of the now disputed way depended upon, and thus necessitated an inquiry as to, the existence and status of such way; but, since the relief sought and adjudged was injunctive only, title to real estate was not involved in an appellate jurisdictional sense (Const. of 1945, Art. V, Sec. 3) and the appeal properly was taken to this court. Detert v. Lefman, Mo., 395 S.W.2d 216; Judge v. Durham, Mo., 274 S.W.2d 247; Bates v. Mueller, Mo.App., 413 S.W.2d 853, 854(1).

We observe at the outset that plaintiffs pleaded and tried the case on the theory that the disputed way was a public road and tht the broad issue for determination, as stated by the trial court, was 'whether or not this (way) is now or has been a public road.' (All emphasis herein is ours.) Plaintiffs' witness John Webb, sixty-eight years of age, who had lived in the neighborhood all of his life and had known the now disputed way since 1912, identified it as 'a branch off of the old military road ¹ which the Ten Mile (Creek) farmers used'--'that road went right stright on through there and followed the ridge around.' Defendants do not challenge the status of the now disputed way as a public road many years ago. In fact, their counsel candidly concede that 'there was clearly a public user around the turn of the century.' But, under 'Points Relied On' in their brief, they urge that the decree for plaintiffs be set aside because (a) 'the use of the road was not continuous having been abandoned during the last ten years' and (b) 'the use of the road was permissive and not adverse.' With these points in mind, we examine the relevant evidence.

On cross-examination, witness Webb agreed with defendants' counsel that all of the 'branch off of the old military road' excepting the segment under consideration here (the now disputed way)--'all but this one part here'--had been abandoned 'for years' prior to trial. But there was abundant evidence that the now disputed way had remained open and had been used by all who desired to travel over it. As witness Webb said, 'two old people bought that place (plaintiffs' tract) to start with and that (the now disputed way) was their way out.' Subsequently at a time not definitely fixed in the record but prior to 1938 when plaintiffs' witness Effie Greene settled in that neighborhood, a gentleman appropriately referred to throughout the record as 'Barber' Smith bought and moved onto plaintiffs' tract, where he continued to reside and ply his trade as a country barber until his death 'about' or 'right close to' four years prior to the trial on December 2, 1968.

Witness Greene said that 'the barber lived back there and there was a lot of cars went back there'--'every day nearly somebody would go back there to get their hair cut' and affirmed that 'it (the now disputed way) was open and used by the public during the entire time.' Plaintiffs' witness Ernest Lambert, who came into that neighborhood in 1949, was 'very familiar' with the now disputed way, had used it 'many a time'--'every time I needed a haircut,' and likewise affirmed that it was 'used by the public during that time.' On cross-examination, he described it as 'just a road that wound around back through there and they kept gravel on it.' Rejecting the suggestion of defendants' counsel that it 'kinda played around all over the place,' Lambert said 'it stayed in one road; they didn't drive around all over the woods.' Witness Elmer Lambert, Ernest's son, supplied further information that the now disputed way 'runs right close' to the house in which defendants Gore reside. Plaintiffs' witness James Alonzo Simmons had known of the now disputed way since he settled in that community about 1939 or 1940; and, during a period of some ten to twelve years while he 'was raising (his) family down on Ten Mile,' they traveled the now disputed way not only 'for haircuts' but also to visit Mr. Smith, who was 'a special friend.' During the same period, 'the public in general (used) that road' and it was never closed to his knowledge.

Plaintiffs William C. and Emma J. Connell, who had not resided in that neighborhood previously, moved onto their tract May 10, 1966, and thereafter used the now disputed way without complaint or interruption 'for over a year' (so plaintiff William said) and until December 31, 1967 (so plaintiffs' son Johnny W. Connell stated), until defendants Gore, without prior notice to or discussion with plaintiffs, closed the way by fencing it at three points, i.e., at the south end along the east-west boundary line between plaintiffs' and defendants' tracts, at the north end near the right-of-way line of Highway 21, and at one intermediate point, and by posting a sign on a tree at the north end stating 'This Road Is Closed.' The only recorded explanation as to what motivated defendants' conduct is found in the testimony of plaintiffs' son Johnny who stated that, when he talked with defendants Gore, 'they said the stock law was going (into) effect and they needed the land for pasture.'

Defendants had lived on their tract for twelve to fourteen years prior to trial. As they point out in argument here, defendant Ervin Gore did testify that, while 'Barber' Smith was operating his country barber shop, there was 'a barbed wire fence' mostly 'nailed to trees' along the boundary line between plaintiffs' and defendants' tracts and across the now disputed way, in order 'to keep their (sic) stock off of it' because 'they (the Smiths) turned (their tract) in to the land office and got pay for lettin' it lay out . . . under the soil bank thing.' But there was no showing that the Smiths thereby purposed to, or in fact did, either close the now disputed way or interfere with free and unrestricted travel thereupon. For that matter, defendants' witness Polly Roark, who lived on a tract also adjoining defendants' tract and remembered the same fence, stated on cross-examination 'there was a fence there; it was just a wire gap; I don't think he (Smith) had it up.' And when asked about 'the condition of the fence,' defendant Ervin Gore said 'it's about all down now because I've cut most of it down.'

In its final judgment entered on March 29, 1969, the trial court after generally finding 'the allegations of plaintiffs' petition to be true and . . . the issues for the plaintiffs,' further found, inter alia, 'that plaintiffs have an easement and right of passageway over (defendants' tract) on the old road as the same has been traveled for more than ten years last past' and 'that the road, as it now runs, has been used by the public as a road for a period of more than ten years last past, and that such use by the public was and is adverse and not permissive, and . . . that the said use by the public was continuous, uninterrupted, visible and adverse for a period of more than ten years last past.' This suggests that the trial court's injunctive decree may have been predicated in part upon a finding of a public road by prescription. Compare Drydale v. Kiser, Mo., 413 S.W.2d 506, 507. Although 'the old road' no doubt had become a public road by prescription (see again note 1, supra) it was not established as such upon trial of the case at bar, for that would have required record evidence of adverse user for the statutory period of ten years prior to 1887. George v. Crosno, Mo.App., 254 S.W.2d 30, 34(1); Marshall v. Callahan, Mo.App., 229 S.W.2d 730, 732(2); Jordan v. Parsons, 239 Mo.App. 766, 775, 199 S.W.2d 881, 886(4); State ex rel. McIntosh v. Haworth, Mo.App., 124 S.W.2d 653, 654(1). Nor was 'the old road' shown to have been established as a statutory public road (§ 228.190, RSMo 1969, V.A.M.S.), either (a) by order of the county court and user as a public highway for a period of ten years or more, or (b) by public user for ten years continuously and expenditure of public money or labor thereon for such period. Contrast State ex rel. Carter County v. Lewis, Mo.App., 294 S.W.2d 954; Wann v. Gruner, Mo., 251 S.W.2d 57.

But, a road may become a public road in yet another manner, to wit, by implied or common-law dedication--a doctrine predicated on equitable estoppel or estoppel in pais (Borchers v. Brewer, 271 Mo. 137, 143, 196 S.W. 10, 12; 1 Elliott, Roads and Streets (4th Ed.) § 137, p. 163), which has found recognition and application in numerous Missouri road cases. E.g., Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552; School Dist. No. 84 v. Tooloose, Mo., 195 S.W. 1023; Lozier v. Bultman, Mo.App., 286 S.W.2d 43; Leslie v. Mathewson, Mo.App., 257 S.W.2d 394; Main v. Nash, 212 Mo.App. 689, 245 S.W. 581; ...