Drydale v. Kiser
| Decision Date | 10 April 1967 |
| Docket Number | No. 2,No. 52261,52261,2 |
| Citation | 413 S.W.2d 506 |
| Parties | Walter DRYDALE and Alice Drydale, Respondents, v. Paul KISER and Anna Kiser, Appellants |
| Court | Missouri Supreme Court |
E. L. Bartram, Maryville, Alden S. Lance, Savannah, for appellants.
Joe Beavers, Larry L. Zahnd, Dick Thomson Beavers, Zahnd & Thomson, Maryville, for respondents.
BARRETT, Commissioner.
This is a suit, brother against sister, to establish a public road from the brother's house on a south 80 acres across the sister's north 80 acres and to enjoin the road's obstruction. The trial court entered a decree adjudging 'a legally established public road' and the defendant sister and her husband, now tenants by the entirety of the north 80 acres, have appealed and since the judgment establishes a public road the appeal involves the title to real estate (Const.Mo. Art. 5, Sec. 3, V.A.M.S.) and this court has jurisdiction of the cause. Chapman v. Schearf, Mo.App., 220 S.W.2d 757.
The trial court's decree is based in part upon a consideration and finding of a public road 'by prescription' (Bridle Trail Association v. O'Shanick, Mo.App., 290 S.W.2d 401) but the case was not tried on that theory, and there was in fact no pleading or proof to support a road upon that basis. Cook v. Bolin, Mo.App., 296 S.W.2d 181; Gover v. Cleveland, Mo.App., 299 S.W.2d 239. This, however, was a court-tried case, if not in fact an equity action, the review is anew (Civil Rules 73.01, 83.13, V.A.M.R.) and if there is any supported theory the judgment of necessity should be affirmed. Mueller v. Larison, Mo., 355 S.W.2d 5; Marshall v. Callahan, 241 Mo.App. 363, 229 S.W.2d 730. In addition to their pleadings, plaintiffs' counsel in his opening statement explicitly informed the court that the action 'is brought under the section of the statute, Missouri Revised Statutes (1959), 228.190 (V.A.M.S.), as amended in 1953, and especially that part thereof that provides that all roads that have been used by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads.' Furthermore, as stated, all the proof was upon the theory of the applicability of the statute, 'and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads' (RSMo 1959, Supp. § 228.190, V.A.M.S.), and the question for decision is whether the record supports the theory and thus the judgment. In this view 'prescriptive easement' or 'private way' are not involved, neither is common law or implied dedication an issue, nor under the statute is it material that this road may have had its inception during the possession of a life tenant mother while the appellant sister was yet a remainderman. 33 Am.Jur. (Life Estates, Remainders) §§ 187--188, pp. 659--663.
George Drydale who died in 1940 owned 'three eighties,' 240 acres of land, five miles southwest of Barnard in White Cloud Township in Nodaway County. George and his wife Sylvina and their children lived on the east eighty which came to be known as the 'home place' because all the improvements were on that tract. He, together with his sons, farmed all three tracts of land. The other two eighties, lying north and south, were west of the home eighty and before George's death the plaintiff Walter was living on the south eighty and on its north end a home and improvements had been constructed. The south eighty fronts on a county road but there was no lane or access from Walter's home to that road. In those days, prior to 1943, egress and ingress from the south eighty and Walter's home was along the fence rows and open fields of the 'home place' to a county road on the east. George Drydale died in November 1940 and his widow, Sylvina, came into possession of all three eighties, as a life tenant, renting the land to her children, chiefly Walter and Harry. This situation continued until October 2, 1948, when Sylvina died and, under George's will, the appellant Anna came into possession and title of the unimproved north eighty, Walter the south eighty and Harry the east eighty or the home place. And for the first two years 1949 and 1950, Anna and Paul Kiser, although married in 1927, rented the north eighty to Walter and Harry. Since 1950, however, Anna and Paul have acquired another adjoining eighty and have farmed the north eighty through which the disputed road...
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