Engelhardt v. Gravens
| Decision Date | 12 March 1926 |
| Docket Number | 25192 |
| Citation | 281 S.W. 715 |
| Parties | ENGELHARDT et ux. v. GRAVENS |
| Court | Missouri Supreme Court |
Creech & Penn, of Troy, for appellants.
John L Burns, of Troy, for respondent.
LINDSAY, G.
This is a suit to determine title to a strip of ground 25 feet wide constituting a private roadway. The entire way, made a private road by agreement of the parties owning the land, is one-fourth of a mile in length, but the part of it primarily in dispute here is the south end of such roadway. The plaintiffs claim the sole possession and absolute title, and defendant claims an interest therein and right of user.
On May 28, 1906, one John Ulery, the common source of title, owned 40 acres, the southwest quarter of the southeast quarter of section 29, township 49, range 1 east, in Lincoln county. At that time and for some years prior thereto one Frederick Engelhardt owned 17 acres of land adjoining said 40-+ acre tract on the south. On said day Ulery sold and conveyed to Frederick Engelhardt 9 acres off the south side of said 40-acre tract, and on the same day sold and conveyed to one Charles R. Walton a tract of 13 acres lying north of and adjoining said 9-acre tract, excepting, however, from said 13 acres, a strip of ground 121/2 feet wide, extending the entire length of the north side of the 13 acres.
On May 28, 1906, Ulery, Walton, and Frederick Engelhardt also executed a contract in writing, duly acknowledged, which recited that whereas Ulery had on that day sold and granted respectively, to Frederick Engelhardt the 9-acre tract, and to Walton the 13-+ acre tract, except the 121/2 foot strip, that therefore, in consideration thereof and as a part of the original consideration for said sales, the parties covenanted and agreed as follows:
'First: That the said John R. Ulery for the aforesaid consideration hereby grants, bargains, and sells to the said Charles R. Walton and the said Frederick Engelhardt, and their grantors, heirs, and assigns forever a strip of land twenty-five feet wide off of the east end of the north half of the southwest quarter of the southeast quarter of section 29, township 49, range 1 east, in Lincoln county, Missouri, for the purpose, and the sole purpose of a private roadway to be used by the said Frederick Engelhardt and Charles R. Walton.
'Second: That said Charles R. Walton and said Frederick Engelhardt do for the aforesaid consideration hereby set apart and dedicate a strip of ground twenty-five feet wide off of the east end of the south half of the southwest quarter of the southeast quarter of said section 29, township 49, range 1 east, Lincoln county, Missouri, for the sole use and purpose of a private roadway to be used by the said Charles R Walton and the said Frederick Engelhardt and their grantors, heirs, and assigns forever.'
The agreement further provided that Ulery should have the right to construct the necessary ditches on, over, and along the west side of said roadway, where it was located on the lands of Walton and Frederick Engelhardt, for the drainage of his land, but said ditches were not to obstruct the use of the roadway by Walton and Frederick Engelhardt. This agreement was filed for record on July 11, 1914, and was duly recorded.
On the day first mentioned, May 28, 1906, Walton executed a deed of trust on the 13 acres purchased by him to secure the payment of a note, and thereafter, on February 19, 1910, the 13-acre tract was sold by the trustee under that deed, and the plaintiffs F. A. Engelhardt and Edith Engelhardt became the purchasers and owners of said 13-+ acre tract. It appears from the record that F. A. Engelhardt and Frederick Engelhardt were brothers. The plaintiffs are husband and wife.
Prior to the time of the transactions that have been mentioned, on April 17, 1903, Frederick Engelhardt, as the owner of the 17-+ acre tract lying and adjoining on the south of said 9-acre tract, had executed a deed of trust to the plaintiff F. A. Engelhardt, as trustee, to secure the payment of a note payable to Anna Engelhardt. Frederick Engelhardt died about the year 1914 or early in 1915, and Benjamin F. Vieth was appointed administrator of his estate. Thereafter, on November 13, 1915, F. A. Engelhardt, as trustee in the deed of trust last mentioned, sold the 17-acre tract and certain other land therein included, and defendant Gravens became the purchaser of the 17-acre tract at that sale. The plaintiffs were present at this sale, plaintiff F. A. Engelhardt as trustee making the sale, and his wife, his coplaintiff, present, bidding upon the land, and Mr. Vieth, the administrator of the estate of Frederick Engelhardt, deceased, was also present. The circumstances connected therewith and what occurred at said sale have been made an essential issue in the pleadings and the testimony, and will be referred to later.
At the August term, 1916, the probate court of Lincoln county ordered the administrator of the estate of Frederick Engelhardt, deceased, to sell the 9-acre tract belonging to said estate, and under that order, the administrator, at a private sale, did sell the 9-acre tract to plaintiff F. A. Engelhardt, which sale was approved, and on November 13, 1916, the administrator executed his deed conveying the 9-acre tract to plaintiff F. A. Engelhardt.
As has already been indicated, the plaintiffs, in their petition, alleged that they were in possession of and had absolute title to 'a strip of land twenty-five (25) feet wide off of the east end of the south half of the southwest quarter of the southeast quarter of section 29, township 49, range 1 east, beginning at the north line of the south half of the southwest quarter of the southeast quarter of said section 29, township 49, range 1 east, thence running south to a point fifteen (15) feet north of the south line of said section 29, township 49, range 1 east.' They alleged that the defendant claimed some interest therein, and plaintiffs asked that the title and interest of the parties, respectively, be determined.
The defendant, in his answer, set up the conveyances from Ulery to Walton and to Frederick Engelhardt, and alleged that under the aforesaid agreement made between those parties the strip of land 25 feet wide off the entire east side of the 40-acre tract had been sold and granted to each and all of the said parties, their heirs, and assigns, and set apart and designated for the sole purpose and use of a private roadway, to inure to the benefit of each and all of the parties to the contract, their heirs, and assigns.
Defendant next pleaded the sale of the 17-+ acre tract by plaintiff F. A. Engelhardt, as trustee, under the deed of trust executed by Frederick Engelhardt, and alleged that at said sale Vieth, the administrator of the estate of Frederick Engelhardt, deceased, had announced to bidders and prospective purchasers of that tract, in the presence and hearing of plaintiffs, that the right to use the roadway in issue for access to the 17-+ acre tract was appurtenant to that tract, and would pass to the successful bidder, and purchaser of that tract, and alleged that at said time the plaintiffs were the owners of the 13-acre tract, which has been mentioned, and of the private roadway appurtenant thereto. Defendant further alleged that after the 28th day of May, 1906, and during all the time the 17-acre tract was owned by said Frederick Engelhardt, the 25-foot strip was used by him, said Engelhardt, as a private roadway, and as a necessary appurtenance to said 17-acre tract; and that since the purchase by defendant of that tract defendant had continued in the uninterrupted use thereof under a claim of right to use the same -- all of which was known to and acquiesced in by the plaintiffs. Defendant averred that the roadway had passed to him by virtue of the trustee's deed conveying the 17-+ acre tract, and by virtue of the announcement made by Vieth, the administrator, and assent thereto by plaintiffs, and that thereby plaintiffs were estopped from claiming any interest adverse to defendant's right to use the 25-foot roadway. He asked for a decree that he and his heirs and assigns be entitled to an easement in the 25-foot strip described in the plaintiff's petition for a private roadway, as a means of access, and appurtenant to the right of use of the 17-acre tract.
The reply was, first, a general denial, and, next, a special denial that defendant had any interest in the 25-foot strip of land off the east end of the north half of the 40-acre tract; and plaintiffs again asked for determination of title to the 25-foot strip off the east end of the south half of the 40-acre tract.
The plaintiff F. A. Engelhardt lived in St. Louis at the time of and for some years after the purchase of the 13-acre tract and for a time after the purchase of the 9-acre tract, and they were occupied by tenants in the interval. The 25-foot strip was used as a way by these tenants, and also by others, and was used by defendant to some extent after his purchase of the 17-acre tract. About 1917, however, plaintiff F. A. Engelhardt put a gate across this roadway. This gate, at first, was not locked. About 1919 plaintiff F. A. Engelhardt removed from St. Louis to the land, and afterward placed a lock on the gate and kept it closed. F. A. Engelhardt testified that the gate was kept locked for two years before defendant broke the lock. The defendant, claiming the right to use the roadway, broke down the gate, and used the road, over the objection of the plaintiffs, and this suit followed. Two other roadways are referred to in the testimony. One was a private roadway, 15 feet in width, along the north side of the 17-acre tract. This led to a public road spoken of as the Bluff Road. The Bluff Road intersected both...
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