Eaton v. Milbourn

• Decision Date: 20 November 1939
• Docket Number: No. 19585.,19585.
• Citation: 135 S.W.2d 387
• Parties: EATON v. MILBOURN et al.
• Court: Missouri Court of Appeals

135 S.W.2d 387

EATON v. MILBOURN et al.

No. 19585.

Kansas City Court of Appeals. Missouri.

November 20, 1939.

Rehearing Denied January 8, 1940.

Error to Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be published in State Reports."

Suit by Roy Eaton to enjoin Eva Milbourn, Tom Meers, and Nina Meers from obstructing a right of way. To review a judgment granting the injunction, the defendants bring error.

Affirmed.

Randolph & Randolph, of St. Joseph, for plaintiffs in error.

J. V. Gaddy and Homer C. King, both of St. Joseph, for defendant in error.

CAMPBELL, Commissioner.

Eva Milbourn, Tom Meers and Nina Meers obtained writ of error to have reviewed the record of the circuit court of Buchanan County in a cause brought in the circuit court of Andrew County and sent on change of venue to the circuit court of Buchanan County, in which they were defendants and Roy Eaton was plaintiff. We will refer to the parties as plaintiff and defendants as they appeared in the record of the trial court.

Plaintiff's petition alleged he was the owner of certain land in Andrew County and a right of way over two strips of land, each 20 feet in width, extending south from his said lands to a public road; that he obtained title to one of the strips by deed in February, 1925; that right of way over the other strip was secured by a judgment in partition; that defendant, Eva Milbourn, claimed to own land adjoining his on the south, and was in possession thereof through her tenants, the defendants, Tom Meers and Nina Meers; that he used said roadways until August, 1937, at which time defendants wrongfully placed obstructions on the strips which prevented him from having ingress or egress to his said land.

The prayer sought restraining order enjoining defendants from obstructing or keeping either of the strips closed.

The defendants' answer alleged in substance that plaintiff had abandoned the roadways and that any right or easement he ever had lapsed by reason of "non-use for more than ten years" prior to the beginning of the action; that Eva Milbourn was in possession of the strips, had been in the open, notorious and adverse possession thereof for more than ten years before the suit was brought, during which time she had cultivated the same. The answer does not seek affirmative relief; it merely asked that plaintiff's petition be dismissed.

On trial the chancellor found that plaintiff was the owner of the easements described in the petition; that defendants obstructed the use of the roadways by placing fences thereon. The decree ordered and adjudged that defendants were perpetually enjoined from placing obstructions upon the roadways or interfering with the free use thereof by the plaintiff. In due time defendants obtained writ of error as hereinbefore stated.

The land described in the pleadings was partitioned in kind by the judgment of the circuit court of Andrew County in 1912, and one of the roadways here involved was adjudged to be a private road for the use of James L. Milbourn to whom was set off the north part of the land; to Preston Milbourn was set off a tract adjoining the James L. Milbourn tract on the south, and the next tract on the south was set off to Jesse Milbourn. Preston Milbourn by deed dated February 13, 1925, and filed for record March 5, 1925, conveyed to plaintiff a strip 20 feet wide off the east end of the land set off to him "for road" at or about the same time James L. Milbourn conveyed the land set off to him to plaintiff. Preston Milbourn conveyed his land to Jesse Milbourn on March 12, 1925, and included therein the strip therefor conveyed to plaintiff. Jesse Milbourn executed a deed which, by its terms, conveyed the title to the land set off to him and the land acquired by him from Preston Milbourn to Eva Milbourn on February 10, 1926. The strip set off by the commissioners for a private roadway was excepted from the operation of the deed but the other strip was included in the land described in the instrument.

There was evidence showing that plaintiff, his tenants and employee used the strips in going to and from his land from the time he purchased it until the defendants...