Cook v. Bolin

• Decision Date: 20 November 1956
• Docket Number: No. 7548,7548
• Citation: 296 S.W.2d 181
• Parties: Eli COOK, Plaintiff-Respondent, v. Carl BOLIN and G. C. Norris, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 181

296 S.W.2d 181

Eli COOK, Plaintiff-Respondent, v. Carl BOLIN and G. C. Norris, Defendants-Appellants.

No. 7548.

Springfield Court of Appeals, Missouri.

Nov. 20, 1956.

William E. Seay, Salem, for defendants-appellants.

Lay & Ichord, Houston, for plaintiff-respondent.

RUARK, Judge.

This is an appeal from a judgment enjoining the defendants from commission of certain trespasses. Plaintiff, now respondent, Cook, in his petition charged the defendants, now appellants, Bolin and one G. C. Norris (a tenant or employee of Bolin), with repeated trespass and breaking locks upon gates at each end of a logging trail across plaintiff's land, leaving such gates down and permitting the cattle there pastured to escape.

The applicable portion of defendants' answer is as follows:

'3. Further answering, defendants state that the road described in paragraph two of plaintiff's petition is a public way and an easement for the use of defendants and that said road has been used as a public way and easement by various individuals.

'4. That the said roadway had been used by the defendants and defendant Carl Bolin's predecessors in title and by such members of the traveling public as desired to travel the road since the memory of man runneth not to the contrary.'

To such answer plaintiff made reply as follows:

'1. Denies each and every, all and singular, the allegations in defendants' Answer contained.

'2. Plaintiff further states that the road or logging trail described in paragraph two of Plaintiff's Petition never has been a public road or way.

'3. Plaintiff further states that he has exercised exclusive ownership over said road or logging trail for the last 22 years and if the said road or logging trail ever was a public way, it is not now such due to abandonment by non-user of said road or logging trail by the public for the last 22 years under Section 228.190 Missouri Revised Statutes, amended in 1953 [V.A.M.S.].'

Appellants' first assignment is:

'Respondent failed to reply to appellants' affirmative defense of an easement appurtenant and the court should have given judgment for appellants on motion by defendants.'

We think the assignment is ill-taken.

First, it will be noted that the reply contains a denial to 'each and every, all and singular,' the allegations of the answer. This was sufficient. Section 509.080, RSMo 1949, V.A.M.S.; Brown v. Adams Transfer & Storage Co., Mo.App., 31 S.W.2d 117; Huth v. Picotte, Mo.App., 154 S.W.2d 382; Auchincloss v. Frank, 17 Mo.App. 41.

Second, we are doubtful if the answer pleaded an easement appurtenant, and we are certain that defendants did not try their case on that theory. The language 'a public way and easement by various individuals' and that the roadway 'had been used by the defendants and defendant Carl Bolin's predecessors in title and by such members of the traveling public' is ambiguous, and its creates the impression that the pleader is contending that 'a public way' existed which was used and enjoyed by defendant's predecessors in title, along with others of the public. Although the pleader did not hesitate to expressly declare there was a public way, there is no express mention of a private way or an easement appurtenant. Such an easement involves both dominant and servient lands. There is no indication as to what dominant lands an appurtenant easement served. The office of the pleadings is to define and isolate the issues to those controverted so as to advise the trial court and the opposite party of the issues to be tried, Dillard v. Thomas, 241 Mo.App. 773, 270 S.W.2d 548; Ritchie v. Burton, Mo.App., 292 S.W.2d 599, and the duty rests upon the pleader to express his meaning clearly. A pleading which is ambiguous or in which doubt or confusion appears should be construed most strongly against the pleader and in favor of the judgment. See Therrien v. Mercantile-Commerce Bank & Trust Co. (en banc), 360 Mo. 149, 227 S.W.2d 708; Koewing v. Greene County Building & Loan Ass'n, 327 Mo. 680, 38 S.W.2d 40.

A pertinent inquiry is, how did the pleader himself construe this pleading? An examination of the transcript shows that the case was tried throughout upon the theory that the road in question was a public road acquired by prescription. The words 'easement appurtenant' or 'private way,' or similar or equal expressions, were never once used throughout the trial by counsel, court or witnesses. The questions asked of the witnesses, the objections and remarks of counsel and the remarks and rulings of the court appear to have been directed toward the sole question of whether a public way existed. The only motion made by defendants was an oral one made at the close of the plaintiff's case, which motion was to dismiss the petition and direct a verdict (sic) for defendants because 'by every witness they had it was shown it was traveled by the public across this road.' The first time we find mention of an easement appurtenant is in the defendants' motion for new trial. It is axiomatic that a party is bound by the theory upon which he tried his case. See cases West's Missouri Digest, Appeal and Error, k171.

We are of the opinion that the theory of an easement appurtenant never occurred to the defendants until after they had tried their case. To believe otherwise would necessitate the conclusion that counsel deliberately dug a pit and carefully concealed it with the leaves of legal verbiage hoping thereby to entrap the court. In modern legal practice pleadings are designed for the purpose of defining issues, not to serve as sources of ambush.

Appellants' assignment number II is:

'When appellants' evidence proves user of easement for the statutory period the burden of proving permissive use or by license shifts to respondent.'

With this abstract statement, as a generality and subject to some qualifications and limitations not necessary to discuss here, we agree. We have no doubt the circuit judge did also, for we find nowhere in the record any ruling to the contrary. Obviously the assignment does not point to any such contrary ruling. With what error, therefore, are we to convict the trial court? Supreme Court Rule 1.08, 42 V.A.M.S., provides, among other things, that the points relied upon shall briefly and concisely state what actions or rulings of the court are claimed to be erroneous. The appellate courts repeatedly point out that abstract statements of the law are valueless as assignments of error. An assignment must point out that which the court did or did not do which it is contended was erroneous. Berghorn v. Reorganized School Dist. No. 8 (per curiam), 364 Mo. 121, 260 S.W.2d 573; Repple v. East Texas Motor Freight Lines, Mo.Sup., 289 S.W.2d 109; Clemons v. Becker, Mo.Sup., 283 S.W.2d 449; Dansker v. Dansker, Mo.App., 279 S.W.2d 205, 209.

Appellants' third and final assignment is:

'The use of a roadway for the prescriptive period in the required manner creates an easement appurtenant.'

This also is an abstract statement incomplete in itself. It points to no error which we are to review.

For the foregoing reasons we are of the opinion that the judgment of the lower court must be affirmed.

Moreover, we have examined the record and are of the opinion that the judgment was for the right party under the evidence.

All of the lands herein concerned lie in the neighborhood of Current River in Dent County. The plaintiff's land, which is sought to be made servient to the easement, is rough or rolling, is now partially cleared and is what might be referred to as woods pasture. Plaintiff acquired his land by two separate purchases, the first about 1923 and the last, from one Spencer, about 1936. The way in dispute appears to lie across the land acquired from Spencer. This last purchase was subject to the reservation in the seller of the right to cut and remove certain timber. Between 1936 and 1938 plaintiff fenced such land but left gates on the east and west sides. He said this was for his own convenience and also because it was necessary to give Spencer a way out in removing the reserved timber. Thereafter and from time to time plaintiff conducted logging and woodcutting operations on his land and occasionally sold timber and wood to others who conducted such operations. He testified that to facilitate this operation logging trails were made over the land. Quite evidently an old road or trail (depending upon whose language we use) had existed somewhere across the land prior to its acquisition by the plaintiff, but plaintiff said this was impassable when he bought the land and that about 1938 he made a different road in a new location which he said was 'around the side of the hill from the old one,' and this appears to be the way in question here. Plaintiff testified that the new road was a 'logging trail' usable and necessary to him for the purpose of taking out logs and wood but difficult to travel in an automobile. That the road, which he referred to as a logging trail, was sometimes obstructed by logs and the tops of felled trees. That the road or trail had not been used by anyone except himself and others who were engaged in the cutting of wood or logging operations since he acquired the land and fenced it. That some ten or eleven years before trial date (which would be 1944 or 1945) fox hunters had left the gates on the place open and his cattle had gotton out and that he locked such gates. That some five or six years prior to the trial (which would be approximately 1949 or 1950) the wooden gate on the east side of his premises was destroyed by fire and he replaced it by fencing across the space with woven wire. In general, plaintiff's statements were substantiated by other witnesses.

In 1942 defendant Bolin purchased what is called the baseball camp farm which lies to the north and west of plaintiff's land. In 1953 Bolin purchased what is referred to as the Dent farm, which adjoins plaintiff on the east, and this controversy arose because defendant...