Dillen v. Edwards

• Decision Date: 14 December 1953
• Docket Number: No. 2,No. 43616,43616,2
• Citation: 263 S.W.2d 433
• Parties: DILLEN et al. v. EDWARDS et al
• Court: Missouri Supreme Court

Page 433

263 S.W.2d 433

DILLEN et al. v. EDWARDS et al.

No. 43616.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1953.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 11, 1954.

Arthur R. Kincaid, Robt. E. Coleberd, Liberty, Lawson, Hale & Coleberd, Liberty, of counsel, for appellants-defendants.

Wherritt & Sevier, Alan F. Wherritt, Robert F. Sevier, Liberty, for respondents.

WESTHUES, Commissioner.

Plaintiffs and the defendants own adjoining lands in Clay County, Missouri. A roadway running generally in an easterly and westerly direction crossed an 80-acre tract of land owned by the defendants. It was defendants' means of ingress and egress to the house located on their land. Plaintiffs and the public generally had been using this roadway for many years. In August, 1951, the defendants erected gates across this roadway and objected to the use of the roadway by the public. The present suit was filed by plaintiffs who own land and also Cooley Lake located to the west of the 80 acres. The object of the suit was to determine whether the roadway was a public road. The trial court decreed that the roadway had been dedicated as a public road and enjoined the defendants from maintaining gates or in any way obstructing the road. The defendants appealed to the Kansas City Court of Appeals, which court transferred the case to this court on the theory that title to real estate was involved. See Dillen v. Edwards, Mo.App., 254 S.W.2d 44. Since this suit involves the question of establishing an easement over defendants' land, title to real estate is involved. Zinser v. Lucks, 361 Mo. 671, 235 S.W.2d 844, loc. cit. 847(3); Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552, loc. cit. 553(1); White v. Bevier Coal Co., Mo., 261 S.W.2d 81. The case of Chapman v. Schearf was decided by the court en banc and should be followed on the question of jurisdiction.

The facts proven may be stated as follows: The defendants Charles H. Edwards and his wife, Sallie, owned the 80 acres traversed by the roadway in dispute. The defendant Cameron Crabtree, a sonin-law of Edwards, occupied the land as a tenant. Edwards purchased the land in 1925. At that time the roadway was located in about the same place as at the time of the trial. Some time before 1930, there was a slight change made in the location of the roadway near the house and barn located on the 80-acre tract. It was also in evidence that prior to 1925, gates were intermittently maintained at the east and also at the west end of the roadway at the boundary line of the 80 acres. The evidence justifies the statement that after Edwards purchased the land, the gates, if there were any there, were no longer used and were permitted to rot. The roadway had been used by the public before Edwards became the owner. The evidence of the witnesses, those for plaintiffs and also for the defendants, was that the general public desiring to use the road did so without hindrance from the time Edwards purchased the land in 1925 until August, 1951. The defendant Charles H. Edwards with commendable frankness testified as follows with reference to the use of the road:

'The witness: Well, the public been going through, the Dillens and those fishermen, hunters, and drunks and sobers and all kinds.

'Q. (By Mr. Hale) Well, why did you permit them to go through? A. Well, I just as neighbors let them go through.

'Mr. Hale: You may ask the witness.'

'Cross-Examination

'By Mr. Sevier:

'Q. Mr. Edwards, you have you say permitted them to go through for about 22 or 3 years, haven't you? A. Ever since I--they've been going through ever since I bought the farm; bought the farm in '25.

'Q. Yes, and by they, you mean the Dillens and the public? A. Yeah.

'Q. And you never stopped the public or the Dillens from the use of it, did you? A. No, sir.'

The evidence showed beyond dispute that the roadway was used by the public for at least 25 years without the slightest interruption or objection. Defendants contend that they were merely acting the part of good neighbors in permitting the use of their road. It was shown by the evidence that the principal travel over this road way by patrons of plaintiffs who operated a fishing and duck hunting resort at their lake.

As to the maintenance of the road, the evidence disclosed that the defendants probably carried the major burden. However, the plaintiffs also contributed some labor, gravel, and cinders and often used a tractor and drag in keeping the road in condition...