Curran v. Bowen, 53569

• Decision Date: 28 June 1988
• Docket Number: No. 53569,53569
• Citation: 753 S.W.2d 940
• Court: Missouri Court of Appeals
• Parties: William A. CURRAN, et ux., Plaintiffs-Respondents, v. Ira E. BOWEN & Violet Bowen, et al., Respondents-Appellants.

Page 940

753 S.W.2d 940

William A. CURRAN, et ux., Plaintiffs-Respondents, v. Ira E. BOWEN & Violet Bowen, et al., Respondents-Appellants.

No. 53569.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 28, 1988 Appellants' Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 3, 1988 Respondents' Motion for Rehearing Denied Aug. 3, 1988.

Floyd T. Norrick, Thurman, Smith, Howald, Weber & Bowles, Hillsboro, for respondents-appellants.

W.W. Sleater, Kirkwood, for plaintiffs-respondents.

CRANDALL, Judge.

Plaintiffs, William A. Curran and Virginia E. Curran, appeal from the judgment of the trial court, in a court-tried case, in favor of defendants, Ira E. Bowen and Violet Bowen, refusing to enjoin defendants from encroaching on, traversing over, or discharging raw sewage onto plaintiffs' property; granting to defendants a prescriptive use easement over plaintiffs' land; and refusing to award plaintiffs damages for defendants' trespass. Defendants cross-appeal the judgment in favor of plaintiffs on defendants' counterclaims for title to the real property in question by reason of adverse possession as well as for reformation of the deed to describe the real estate allegedly acquired by adverse possession. We affirm.

Our standard of review is that of a court-tried case. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The evidence reveals that this dispute concerns a parcel of land which was an exception in a deed to certain real estate which plaintiffs purchased in 1962. Freda M. White and Charley C. White (Whites) had been the original owners of the entire parcel of land. At the time the Whites conveyed the property, they had retained for themselves a portion of the land which was reflected as an exception in the deed. Until 1972, the Whites resided in a home on the property which has been excepted from the deed. In 1974, defendants purchased the excepted property. ¹ The legal description of the property which defendants purchased did not close mathematically.

When defendants purchased the property, they thought they were purchasing all of the land within an area enclosed by four cut off utility poles. The Whites previously had maintained this area and had put in a garden. Defendants continued to maintain the area encompassed by the utility posts and to keep a garden. Defendants were not aware that one of the poles was located on plaintiffs' property. In 1978, defendants built an addition to the existing home. The addition encroached onto plaintiffs' land.

The Whites, during their occupancy of the tract in question, had used a roadway to get to and from the property. Defendants continued to drive over this roadway. An easement for this roadway had been granted in 1959 by the Whites to certain third parties. The easement was for a strip of land 30 feet wide across the western boundary of plaintiffs' property. The easement had been released to plaintiffs in 1962 by the third parties.

Plaintiffs did not object to either the Whites' or defendants' use of the property encompassed by the posts or use of the roadway. Plaintiffs cut brush on the ground which belonged to them within the area bounded by the posts. Plaintiffs paid the taxes on that property. Plaintiffs also noticed that raw sewage was being discharged onto their property.

In 1983, plaintiffs could not obtain financing to develop their land because of the cloud on the title caused by the failure of the legal description of the excepted parcel of land to close. Plaintiffs filed this action. Count I of plaintiffs' petition sought damages for and injunctive relief against defendants' encroaching or traversing upon plaintiffs' land. In Count II, plaintiffs sought damages for and an injunction against defendants' discharging raw sewage and effluent onto plaintiffs' property. Count III sought actual and punitive damages for defendants' trespass upon plaintiffs' real estate. Defendants counterclaimed, seeking to acquire by adverse possession title to the area encompassed by the four cut off utility poles; and also seeking either an implied easement or an easement by prescription to use the roadway to their property.

In their first point, plaintiffs contend that the trial court erred in excluding from evidence a survey of defendants' property which was offered to establish the boundary lines of defendants' property. A surveyor testified from field notes and stated that the survey did not commence from a government corner.

"[E]vidence of a survey which is not definitely shown to have commenced from a corner established by the government or, if lost, reestablished in accordance with statutes, is of no probative force." Cantrell v. Bank of Poplar Bluff, 702 S.W.2d 935, 938 (Mo.App.1985) (citing Carroz v. Kaminiski, 467 S.W.2d 871, 872 (Mo. banc 1971)).

Plaintiffs rely on City of Marshfield v. Haggard, 304 S.W.2d 672 (Mo.App.1957) to support their position that the description and location of defendants' property could have been determined in reference to plaintiffs' property as platted and that evidence of a survey shown to have commenced from a government corner was therefore unnecessary. We disagree. Cantrell, 702 S.W.2d at 940 specifically declined to follow the City of Marshfield case for the reason that its holding was a departure from the well established rule in Missouri.

Because defendants' survey did not start at a government corner, the trial court properly excluded the survey from evidence. Plaintiffs' first point is denied.

In their second point, plaintiffs assert that the trial court erred in granting defendants an easement by prescription to use a 30 foot wide strip of land across the western portion of plaintiffs' property. Plaintiffs also argue that the easement granted to defendants was too wide because "the use of an eight foot drive does not ripen into a possessory easement for thirty feet...."

The requisite elements for a prescriptive use easement are that the use of the property must be open, adverse, visible, continuous and uninterrupted under a claim of right for ten years or more. Spooner v. Bates, 550 S.W.2d 200, 202 (Mo.App.1977). To establish an adverse use there must be a distinct and positive assertion of a right hostile to the owner and brought home to him. Chase v. Fania, 675 S.W.2d 87, 89 (Mo.App.1984).

In contrast to adverse possession, an easement by prescription deals with use, not possession, of the property in question. Lacy v. Schmitz, 639 S.W.2d 96, 99 (Mo.App.1982). The character and extent of a prescriptive easement right is determined by the character and extent of the use during the prescriptive period. Id. at 100. No different or greater use can be made of a prescriptive easement than the use under which it was gained. Id.

Here, the roadway over plaintiffs' land was the only means of ingress to or egress from defendant's property. The road had been used by the Whites from 1962 until Mr. White's death in 1972. From 1974 to the present, defendants and the general public continuously used the roadway to defendants' property. Defendants maintained the road and surfaced it with gravel and concrete. The roadway was well-defined and obviously accommodated vehicular traffic. There was sufficient evidence for the trial court to conclude that defendants had acquired an easement by prescription to use plaintiffs...