Downey v. Sklebar

• Decision Date: 06 May 1924
• Docket Number: Mo. 17382.
• Citation: 261 S.W. 697
• Parties: DOWNEY v. SKLEBAR et al.
• Court: Missouri Court of Appeals

261 S.W. 697

DOWNEY v. SKLEBAR et al.

Mo. 17382.

St. Louis Court of Appeals. Missouri.

May 6, 1924.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by Stephen 3. Downey against Frank Sklebar and others. Judgment for plaintiff, and defendants appeal. Affirmed,

Jesse R. Schaper, of Washington, Mo., for appellants.

James Booth, of Pacific, for respondent.

DAVIS, C.

This is a suit in equity seeking to establish an easement in favor of plaintiff in and to a strip of ground through the lands of defendants in Franklin county, to enjoin and restrain defendants from preventing or interfering with plaintiff's right of travel over said strip of ground, and to compel defendants, by mandatory injunction, to remove certain gates, wires, and fastenings which defendants constructed across the private road so as to hinder plaintiff's user of the easement. From a `decree in favor of plaintiff, defendant appeals.

The court's decree describes the right way across defendants' land with particularity, and finds that plaintiff and those under whom he claims have obtained, by prescription, the right to use and travel said road from plaintiff's premises to its connection with the county road, and orders defendants to remove the gates, wires, fastenings, and other obstructions, and enjoins them from preventing or interfering with plaintiff traveling said road.

The evidence tends to show that the promises in suit lie north of the St. Louis & San Francisco Railroad `Company, between the towns of Robertsville and Catawissa. Plain tiff possesses and: farms about 170 acres of land in section 33, township 43 north, range 2 east, north of said railroad, occupying said tract as his residence. Defendant Sklebar owns and occupies a tract of Land, containing 28.90 acres, in section 34, township 43 north, range 2 east, adjoining plaintiff's land on the east, and extending to the railroad. Defendant Whitsett owns a tract of land situated immediately north of defendant Sklebar's land. The private road established by the decree of the circuit court runs from Plaintiff's land in a southeasterly direction across the premises of defendants, crossing the railroad to a public road south of the railroad, which public road runs from Catawissa to Robertsville. The private road established by the decree of the court aforesaid has been used as a way by plaintiff and those under whom he claims, and in part by defendants, and those under whom they claim, and in part by residents of the neighborhood, from 45 to 75 years. The traveled private road is from 12 to 20 feet in width. There is a fence along the south side of defendants' land.

There is no evidence that plaintiff, or those under whom he claims, ever asked the consent of any one to use this private road, and until September, 1919, no one seems to have objected to the user, unless it can be said that a prior owner, James Whitsett, objected.

James Whitsett, the grandfather of defendant James Whitsett, many years ago possessed all the lands now owned by the defendants, and one Lambeth at said time owned the lands now occupied by plaintiff; during which time said Whitsett and Lam beth seemed to quarrel. Thereupon said. Whitsett called upon one D. A. Brennan, a justice of the peace who was 80 years old at the time of the trial, stating that he believed he would close them out. Brennan said: "Mr. Whitsett, you can't close them out, it has been open too long." Whitsett said: "Dan I will take your word for you always tell me the truth." Defendants then moved that the answer of the witness be stricken out. The only evidence as to work upon the road by plaintiff was in the year 1901 and by defendant Sklebar within 3 years before the trial. The work of both plaintiff and defendant Sklebar was done openly and in such a manner that any one could see the acts; and the use of the road, by plaintiff and the defendants and by the residents in the neighborhood was open and notorious. Plaintiff states that he has used this private road from 20 to 25 years, but states that he never paid defendants any compensation for the road. Where the lands of plaintiff and defendants join, defendants 4 years prior to the commencement of this suit erected a gate, and thereafter maintained the same across said private road, but did not prevent plaintiff from using the road. Thereafter, in 1919, defendant Sklebar, to prevent plaintiff from using said road, wired and fastened up the gates. All the evidence tended to show that the private road was open to everybody who had occasion to travel that way, and that no objections were made to such use by either plaintiff or defendant...