Dillen v. Edwards
| Decision Date | 12 January 1953 |
| Docket Number | No. 21798,21798 |
| Citation | 254 S.W.2d 44 |
| Parties | DILLEN et al. v. EDWARDS et al. |
| Court | Missouri Court of Appeals |
Arthur R. Kincaid and Robert E. Coleberd, Liberty, Lawson, Hale & Coleberd, Liberty, of counsel, for appellants.
Wherritt & Sevier, Alan F. Wherritt and Robert F. Sevier, Liberty, for respondents.
Plaintiffs (respondents) brought suit in equity to enjoin defendants from maintaining gates on an alleged public road which runs through and across defendants' farm to the contiguous resort property of the plaintiffs on the west. The court found the road in question to have been dedicated as a public road by the conduct of the defendants, declared the same to be a public road and enjoined the defendants from maintaining gates, or otherwise obstructing the use of the road by the plaintiffs and the public. The defendants have appealed to this court.
Our jurisdiction is not challenged by any of the parties, but it is our own duty to consider that essential prerequisite. The question presents itself to us as to whether title to real estate is here involved so as to vest jurisdiction of this appeal exclusively in the Supreme Court. Constitution of Missouri, 1945, Article V, Section 3, V.A.M.S.
Plaintiffs' amended petition describes the plaintiffs' land and the 160 acre farm of the defendants adjoining same on the east; alleges, in effect, that for more than 32 years just prior to this action, two certain roads in Clay County from the north and east converged and continued westward to defendants' farm property at or near the southeast portion thereof, where it entered defendants' property and extended northwesterly across the same, as described, to the defendants' west boundary, and there connecting with a north and south road which runs along the east boundary of defendants' contiguous lake resort property; that Cooley Lake is situated on the plaintiffs' said land and is operated privately as a resort for fishing, hunting and boating, and is enjoyed by the general public; that the road thereto, across the defendants' farm adjoining on the east, is well defined and has been used by the plaintiffs and their predecessors in title for more than 30 years as a means of ingress and egress by plaintiffs and the general public to and from the plaintiff's property; that in recognition of the roadway in question across defendants' farm and of its use, defendants, some 15 years ago, fenced the road on each side thereof to show a well marked roadway across defendants' land; that plaintiffs have expended money for grading and placed rock on the road in question as it crosses defendants' land, and Clay County has graded and ditched parts of said road for a number of years; that prior to the acts herein complained of neither defendants nor their predecessors have ever attempted to interfere with the use of said road by plaintiffs or the general public to and from Cooley Lake.
The petition further alleges that defendants have by their conduct under the conditions described, intended to dedicate said road and by reason of such use of the road and the intent of the defendants far in excess of 10 years, 'defendants have dedicated said road as a public road' and are estopped from denying plaintiffs and the general public the use thereof; that defendant Cameron Crabtree, son-in-law of the defendants, is a tenant now living on defendants' track described; that on or about August 20, 1951, defendants placed two cumbersome gates across said roadway, where it crosses their farm, one of which is located at the west line of defendants' land, and another some 100 yards east thereof, which gates, though not locked, the defendants say they intend to lock, and thus permanently to close the roadway; that the gates interfere with the free passage of the plaintiffs and public over the roadway, and unless enjoined, the defendants will maintain and lock said gates, thus causing irreparable damage to the plaintiffs, and plaintiffs have no adequate remedy at law.
The prayer of the petition is that defendants, their agents and employees, be restrained and enjoined from interfering with the plaintiffs and public in the use of said road extending across the defendants' land, and that the court order defendants to remove said gates and obstructions from said strip of land so that the plaintiffs and all others desiring to have access to plaintiffs' contiguous land may use said strip as a roadway, and for such other orders as to the court may seem just and proper.
By their answer to the amended petition the defendants admit ownership of the land on which the road in question is alleged to exist; admit that defendant Crabtree is their tenant thereon; that they are informed that the plaintiffs own the property adjoining on the west, as described in the petition; admit that defendants have maintained a road on their own property for their own benefit for the past several years; deny that plaintiffs or Clay County have ever expended any money on any road on defendants' property, or contributed in any manner to repair or maintain the same; admit that defendants have from time to time suffered and permitted plaintiffs and plaintiffs' customers using the facilities of Cooley Lake to trespass over and across defendants' property; admit that defendants placed gates across the roadway located on their property, and that the same may reduce the hospitality heretofore accorded the plaintiffs and their customers; deny that they ever dedicated any road on their property to the public, or that any road thereon has become a public road, and deny each and every other allegation in plaintiffs petition contained.
By their reply the plaintiffs deny the defendants have maintained a roadway for their own benefit on their farm, but reaffirm that the roadway across the defendants' property, as described in the petition, has been used by plaintiffs and others as a public roadway, as alleged in the petition.
In its decree the court found the ownership of the tracts involved as pleaded; that the roadway described in the petition existed and had been used by the plaintiffs and the public for 25 years as a public road with the knowledge and acquiescence of the defendants in such a manner as to imply on their part a dedication of said roadway and an acceptance and use thereof by the plaintiffs and public as a public highway; declared the roadway to be a public road; found that defendants had placed gates so as to obstruct and interfere with the free passage of the plaintiffs and the public over road, and that inasmuch as said road was at the time a public highway, the defendants had no right so to interfere with such use by the plaintiffs and public and therefore ordered and decreed that the defendants, their agents and employees, be enjoined from obstructing or interfering with the use of said road by the plaintiffs or the public, describing the road by metes and bounds.
The rights that arise from the establishment of a public highway constitute a public easement to travel the same throughout its whole surface and by any method of travel which is reasonable and proper in the use of public roads not prohibited by law or dedicatory restrictions and available equally to all persons, consonant with the safety and convenience of each other. 25 Am.Jur. pp. 458, 460, Sections 164-166. When a road has been established by prescription to be a public highway, the public cannot be divested of its easement over the same except by vacation or abandonment as provided by law. 39 C.J.S., Highways, Sec. 19, page 937. A completed common law dedication by equitable estoppel is irrevocable. Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d 650.
Whether or not the pleadings in a case such as this disclose that title to real estate is involved in a constitutional sense, a judgment in such a case determining title and responsive to the pleadings is sufficient to classify the proceeding as one involving title in the constitutional sense respecting appellate jurisdiction. The pleadings may be consulted to ascertain the effect of the judgment,--whether or not it is...
To continue reading
Request your trial
-
Gibson v. Sharp
...wards (Div. No. II), Mo., 263 S.W.2d 433, which should not have been transferred to this court by the court of appeals, Dillen v. Edwards, Mo.App., 254 S.W.2d 44. The cause is transferred to the Springfield Court of PER CURIAM. The foregoing opinion by BOHLING, C., is adopted as the opinion......
-
Ross v. Robb
...court of appeals. State v. Davis, 462 S.W.2d at 181; City of Olivette v. Graeler, 329 S.W.2d 275, 281 (Mo.App.1959); Dillen v. Edwards, 254 S.W.2d 44, 49 (Mo.App.1953); Chapman v. Schearf, 220 S.W.2d 757, 759-60 (Mo.App.1949).1 Now Art. V, § 18.2 § 168.114--Grounds for Termination; § 168.11......
-
State v. Davis, 33741
...of resolving all doubts on that score against our own jurisdiction. City of Olivette v. Graeler, Mo.App., 329 S.W.2d 275; Dillen v. Edwards, Mo.App., 254 S.W.2d 44; Chapman v. Schearf, Mo.App., 220 S.W.2d Accordingly, the cause is transferred to the Supreme Court of Missouri. PER CURIAM: Th......
-
Dillen v. Edwards
...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. Zi......