Dalton v. Johnson
Decision Date | 09 February 1959 |
Docket Number | No. 47224,No. 1,47224,1 |
Citation | 320 S.W.2d 569 |
Parties | James H. DALTON and Leona I. Dalton, Appellants, v. D. A. JOHNSON, Respondent |
Court | Missouri Supreme Court |
James L. Paul, Pineville, for appellants.
W. J. Collingsworth, Pineville, and Douglas & Douglas, Neosho, for respondent.
HOLMAN, Commissioner.
In this action plaintiffs sought an adjudication to the effect that they had acquired an easement by prescription to use a fenced passageway over land owned by defendant.A trial before the court resulted in a judgment for defendant.Plaintiffs appealed to the Springfield Court of Appeals but that court was of the view that title to real estate was directly involved and accordingly transferred the case to this court.Dalton v. Johnson, Mo.App., 319 S.W.2d 66.We agree that appellate jurisdiction is in this court for the reason indicated in the opinion of the court of appeals.
The easement plaintiffs sought to establish was the right to use a strip of land approximately 20 feet wide and 200 feet long as a passageway (referred to in the evidence as a 'waterway') running from the northwest corner of plaintiffs' land across the defendant's land to Patterson Creek and which had been maintained for the purpose of enabling livestock to pass from plaintiffs' land to Patterson Creek in order to drink water therefrom.The passageway was bounded on the west by the fence which ran along a public road in or near the town of Coy, and on the east by a fence attached to trees.These two fences apparently came together at a post that had been set in the bed of the creek thus creating a wedge-shaped northern boundary.The fact that the east fence had been attached to trees caused the passageway to be of varying widths.The plaintiffs alleged that they and their predecessors in title had openly and adversely used the described strip of land for the purpose indicated for more than 31 years.There was evidence that it had been in use for as long as 60 years.
PlaintiffJames Dalton testified that he purchased the land in question in 1946 and had occupied it since he had moved to it in May 1947; that he had been acquainted with the land since 1937; that he knew the waterway had been used since that year as a means for livestock to go from the land he now owns to Patterson Creek for water; that no one had ever disputed the right to use said waterway until in July 1956 when the defendant built (and has since maintained) a fence across the south end of the passageway between his land and that of plaintiffs.Mr. Dalton testified further that he had not used the waterway from the time he moved to the property in May 1947 until April 1950, because he had not had any livestock until the last-mentioned date, but that he had used it continuously for the purpose of watering his livestock from April 1950 until defendant stopped him in July of 1956; that for a time Mr. Hatfield, who owned and operated the store at Coy, had used a part of the waterway for watering his livestock but that Mr. Hatfield had asked his permission to use the same.On cross-examination it was developed that the deed conveying the land to plaintiffs did not describe the waterway.
Mrs. Faye Crosby testified that she had worked for the Hutchinsons (plaintiffs' predecessor in title) in 1921 and that the waterway was in use at that time; that she had been familiar with the tracts of land owned by plaintiffs and defendant for 48 years; that she had been familiar with the strip of land running from the Dalton land to Patterson Creek since 1921, and from that date to 1956 it had been used by livestock going from the Dalton land to Patterson Creek.
Mr. Ed Smith stated that he had been acquainted with the instant tracts of land for 40 years and had been acquainted with the waterway in question since 1926; that from 1926 until 1956 it had never been closed to use by owners of the Dalton land; that prior to 1940he had passed the land quite often, but since 1940he had seen this strip of land almost every working day as he passed it on his way to work at Anderson, Missouri.
Mr. Clarence Crosby testified that he was born in 1906 on the land now owned by the plaintiffs; that the waterway running from the Dalton property to Patterson Creek had been in existence as long as he could remember, and had been used during that time for the purpose of watering stock kept on the Dalton property.
Mr. Ernest Shadwick testified that he had worked on the Dalton property for a year about 1915 or 1916 and that the waterway was in existence at that time.Apparently this witness does not have any knowledge of the use or maintenance of the waterway since that time.
It was shown by the testimony of Ray Warren that the waterway in question had been in existence for 40 years and that during all that time livestock on the Dalton property had had free access to the use of that passageway in order to water at Patterson Creek.The witness is a brother of Mrs. Dalton and had been out of the state for a number of years but testified that during that period he returned periodically and visited at the Hutchinson home and thus continued to have knowledge of the use of the waterway.
Mrs. Grace Hutchinson, mother of Mrs. Dalton, stated that she and her husband purchased the farm now owned by plaintiffs in 1919 and that she had lived there from 1919 until 1944.She stated that the waterway had been in existence throughout that period and had been continuously used by them, and that her husband (who died in 1939) had not obtained anyone's permission to use the passageway.She stated that she rented the land to Lester Griffin from 1944 to 1946, and that Griffin had kept cattle there and had used the waterway during that time.
The last witness for plaintiffs was Cooper Dawson.This witness stated that he had occasionally traveled the road which bordered on the passageway in question and that his first recollection as to the existence of the waterway was 60 years ago; that he had noticed it in use ever since that time except the period from 1900 to 1910 when he had been away.
Defendant presented a number of witnesses, the first of which was Dave Dennison.Mr. Dennison testified that he purchased what is now defendant's land in 1949; that at that time the west and north fence of the waterway was in a bad state of repair; that in 1950 Mr. Hatfield had asked his permission to drive hogs down there to water and that in the spring of 1950 Hatfield and Mr. Dalton had divided the passageway; that he had sold the farm to defendant in 1950; that he knew nothing about the use of this strip prior to 1949.
Mrs. Alma Hatfield stated that she and her husband began operating the store located on the property adjoining the passageway on January 1, 1947.She stated that at that time the fence on the north and west sides of the passageway were down but that the east fence was in fair shape; that in 1949she and her husband repaired the fence next to the road and, with Mr. Dennison's permission, made a hog lot so that the hogs could go to the creek for water.She stated that the Daltons moved to their property in May 1947 and Mr. Dalton bought cattle and started using the passageway in 1950; that she knew nothing about the use of the passageway prior to 1947.
Defendant also read in evidence the deposition of Logan Hatfield.He stated that with Mr. Dennison's permission he started using the waterway in the fall of 1949; that in the spring of 1950 Mr. Dalton got some cattle and asked the witness to divide the strip with him; that a fence was put in which gave the witness approximately 10 feet for his hogs to use in going to the water, and left Mr. Dalton 20 feet for the use of his cattle; that he had moved from the store property in 1953.
Roy Crosby testified that the waterway had been in use as long as he could remember, except that he was not familiar with the period from 1944 to 1950; that at one time he had repaired the fence for Mr. Dalton.
W. M. Dean stated that he had known about the waterway for six years during which time it had been used by Mr. Dalton and by Logan Hatfield.He also stated that he helped repair the fence on the east side of the waterway while working for the defendant.
The defendant testified that he bought his tract of land about March 1, 1950; that at the time he bought this property he'knew there was this waterway there'; that he did not talk to Mr. Dalton about the cattle using the lane but
In rebuttal plaintiffs called Richard G. Meers who testified that he was employed by Mr. Dalton in 1950 to repair the fence on the east side and north end of the waterway.This witness also testified that his father had owned the Dalton farm and had sold it to Mr. Hutchinson; that he was 19 years old at the time of that sale and that the waterway in question had been in existence as far back as he could remember.
PlaintiffJames H. Dalton was also recalled in rebuttal and testified that he did not ask Hatfield to divide the passageway or ask his permission to use any part of it.PlaintiffLeona Dalton was called and testified that she did not remember...
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Benson v. Fekete
... ... Dalton, Jefferson City, for respondents ... PRITCHARD, Commissioner ... In this suit to quiet title to an easement of ... Bolin, Mo.App., 296 S.W.2d 181; Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571; Dalton v. Johnson, Mo., 320 S.W.2d 569, 573(3--6), and is applicable to the facts of this case. There is another rule of aid to the plaintiffs here and that is the ... ...
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Ball v. Gross
...created by grant, as this one was, is not extinguished by mere nonuser however extended the period of nonuser may be, Dalton v. Johnson, 320 S.W.2d 569 (Mo.1959), but such an easement may be extinguished by abandonment, and if "the nonuser (is) accompanied by conduct of the owner of the eas......
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Mueller v. Larison
... ... Schearf, 360 Mo. 551, 229 S.W.2d 552, 553. Compare Gibson v. Sharp, Mo.Sup., 270 S.W.2d 721.' Also see Dalton v. Johnson (transferred), Mo.App., 319 S.W.2d 66, (decided) Mo.Sup., 320 S.W.2d 569, and cases cited ... The judgment in this case ... ...
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Harrison v. State Highways and Transp. Com'n, 14814
...will not amount to an abandonment." Franck Bros, Inc. v. Rose, 301 S.W.2d 806, 812 (Mo.1957). To the same effect see Dalton v. Johnson, 320 S.W.2d 569, 574 (Mo.1959). A title acquired by eminent domain is, in legal effect, one acquired by grant. Bethany Presbyterian Church v. City of Seattl......
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9.34 Transfer, Termination, and Abandonment
...an easement may not be lost by mere nonuse. See Dulce Realty Co. v. Staed Realty Co., 151 S.W. 415, 432 (Mo. 1912); Dalton v. Johnson, 320 S.W.2d 569, 574 (Mo. 1959). Nonusers do not lose an easement created by express grant. See Knox County Stone, 985 S.W.2d at 361; Denning v. Manley, 610 ......
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Section 19 Transfer, Termination, and Abandonment
...an easement may not be lost by mere nonuse. Dulce Realty Co. v. Staed Realty Co., 151 S.W. 415, 432 (Mo. 1912); Dalton v. Johnson, 320 S.W.2d 569 (Mo. 1959).Nonusers do not lose an easement created by express grant. Knox Cnty. Stone, 985 S.W.2d at 361; Denning v. Manley, 610 S.W.2d 51 (Mo. ......
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6.9 Abandonment and Vacation
...S.W.3d 382, 392–94 (Mo. App. W.D. 2013). Even failure to use will not by itself necessarily constitute an abandonment. Dalton v. Johnson, 320 S.W.2d 569, 574 (Mo. 1959). Absent an express abandonment, the evidence must support an intent to abandon. An abandonment is proved by an intention t......
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6.10 Permissive Use
...to show that the use was permissive rather than adverse. Fassold v. Schamburg, 166 S.W.2d 571, 572 (Mo. 1942); Dalton v. Johnson, 320 S.W.2d 569, 573 (Mo. 1959). Mere use of a passage on another's land for a long period of time with the landowner's knowledge is not necessarily an adverse us......