Fassold v. Schamburg

• Citation: 166 S.W.2d 571,350 Mo. 464
• Decision Date: 01 December 1942
• Docket Number: 38172
• Parties: Herbert Fassold, Gilbert Fassold, Emma Berg, Mike Fassold, Carl Fassold and Emma B. Fassold v. Leo M. Schamburg and Julia Schamburg, Appellants
• Court: Missouri Supreme Court

166 S.W.2d 571

350 Mo. 464

Herbert Fassold, Gilbert Fassold, Emma Berg, Mike Fassold, Carl Fassold and Emma B. Fassold v. Leo M. Schamburg and Julia Schamburg, Appellants

No. 38172

Supreme Court of Missouri

December 1, 1942

Appeal from Perry Circuit Court; Hon. Frank Kelly, Judge.

Affirmed.

Raymond S. Roberts and Taylor Smith for appellant.

(1) The declarations of law offered by defendants at the close of plaintiffs' case and again at the close of the whole case should have been given for the following reasons: (a) The evidence failed to show that the user of the private road in question by plaintiffs and their predecessors was under claim of right. (b) There was direct evidence that the original use of the way in question was with the consent of the owners of the servient estate, and not against their consent; that is it was permissive in its origin. Anthony v. Kennard Bldg Co., 188 Mo. 704; Seested v. Applegate, 26 S.W.2d 796. (c) The use of the land which was permissive in its origin remains permissive until a distinct and positive assertion of a hostile right is brought home to the owner. Faulkner v. Hook, 254 S.W. 48. (2) The judgment rendered by the trial court was against the evidence and the weight of the evidence. (a) As the remedy sought pertains solely to the equitable jurisdiction of the court, it is the duty of the reviewing court, if it becomes necessary, to examine the evidence to determine its sufficiency to sustain the findings and judgment of the trial court. Auxier v Horn, 213 S.W. 100; Downey v. Sklebar, 261 S.W. 697. (b) The evidence is silent as to a claim of right by the plaintiffs, during the prescribed period, of an interest in the roadway which would entitle them to the remedy sought. (c) There is proof in the record, as far back as the evidence goes, that the use of the way was by permission of the then owner. (d) Any presumption that could be inferred from the evidence that the use of the roadway in question was under claim of right by plaintiffs was destroyed by the definite evidence offered by defendants showing that the original use was permissive. Anthony v. Kennard Bldg. Co., 188 Mo. 704; Seested v. Applegate, 26 S.W.2d 796. (3) Where an easement is claimed through prescription an exclusive right of possession cannot be established but only a qualified right for a particular purpose. Riggs v. City of Springfield, 128 S.W.2d 1144. (4) Easement is mere right of person to use for a definite purpose another's land in connection with his own land. Mahnken v. Gillespie, 43 S.W.2d 797. (5) The judgment of the trial court insofar as it purports to quiet and confirm the title to the roadway in plaintiffs is not responsive to the issues made by the pleadings, and is void. Burns v. Ames Realty Co., 31 S.W.2d 274; Brown v. Wilson, 155 S.W.2d 176, 180.

J. Grant Frye and Gerald B. Rowan for respondents.

(1) The petition was to quiet title to an easement or servitude and states a cause of action. Sec. 1684, R. S. 1939. (2) This is an equity case and the appellate court will review the whole record and decide the case de novo, but the appellate court will largely defer to the findings of the trial court upon controverted questions of fact. Kingston v. Mitchell, 117 S.W.2d 226; Fessler v. Fessler, 332 Mo. 655, 60 S.W.2d 17; Norton v. Norton, 43 S.W.2d 1024; Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118; Hunnell v. Linn, 184 S.W. 1154. (3) The evidence showed that there had been actual and continuous use of this road for the prescribed period with the knowledge of the owners of the servient estate, and such raises a presumption of grant unless the owner can show that the use is merely permissive. Novinger v. Shoop, 201 S.W. 64; Leiweke v. Link, 147 Mo.App. 19, 126 S.W. 197; Downey v. Sklebar, 261 S.W. 697. (4) Since it was shown that the road had been in use by the Fassolds and their predecessors in title for more than half a century, with the knowledge and consent of the owners of the servient estate, without any explanation as to how the use began, this raised the presumption that they used it as a matter of right and shifted the burden of proof to the defendants to show the use was by virtue of some license, which burden the defendants did not carry. Gerstner v. Payne, 160 Mo.App. 289, 142 S.W. 794; Strong v. Sperling, 200 Mo.App. 66, 205 S.W. 266. (5) The proposition of appellants that the decree went beyond the pleadings was not raised in the motion for new trial and is not preserved; but even were it preserved, the contention is without merit as the decree sets out the rights and title in the road as to the easement or servitude and not as to the fee. (6) Demurrers to the evidence and declarations of law have no part in the procedure in equity and the appellants' complaint about failure to give such demurrers and declarations is without merit. Lee v. Lee, 258 Mo. 599, 167 S.W. 1030; Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 443; Teutenberg v. Hoover, 250 S.W. 561; Krizek v. Treybal, 15 S.W.2d 382.

Gantt, J. All concur except Hays, J., absent.

OPINION

GANTT

Action to enjoin interference with the use of a private way over defendants' land. Plaintiffs claim a prescriptive right to the way. On judgment for plaintiffs the defendants appealed.

The lands are in Perry County. Plaintiffs' land is designated as Tract I and Tract II. Charles Hacker and defendants own land between plaintiffs' tracts of land. The way is over the lands of Hacker and defendants. It connects the tracts of land owned by plaintiffs. The evidence conclusively shows that for more than fifty years the lands of Hacker and defendants have been subject to the servitude of a private road connecting Tracts I and II. Hacker does not dispute plaintiffs' claim to a prescriptive right of way over his land.

Defendants purchased their land on April 20, 1930, from the children of Andrew Bergman, who died at the age of seventy-one, after having lived on the land now owned by the defendants for many years.

Defendants admit that the existence of the way over their land was "for the prescribed period." They also admit that the use of the way by the plaintiffs and their ancestors was with the knowledge of the different owners of the servient land, including the defendants. In other words, there was an open, continuous, visible and uninterrupted use of the way "for the prescribed period." They also admit that there is no evidence tending to show that the use of the way was permissive in its origin. They also admit that in 1936 defendant Lee M. Schamburg sought the permission of the plaintiff Carl Fassold to move about five hundred feet of wire fence adjacent to the way closer to the traveled part of the way. Carl consented and they staked the line to which the fence might be moved.

Plaintiffs admit that, after using the way for quite a number of years, they circulated among the citizens of that locality a petition, directed to the county court, to make the way a public road. They testified that for many years they had the burden of keeping the way in condition for travel; that the way was rough, rocky and extended over timber land and that they sought to change the way to a public road that they might be relieved of the burden of conditioning the way for travel.

The rule follows:

"It is true that a use which is permissive in its origin remains permissive until a 'distinct and positive assertion of a right hostile to the owner' is 'brought home to him.' Pitzman v. Boyce, 111 Mo. l. c. 392, 19 S.W. 1104. It is also true that the general rule is that the burden is upon the claimant to show the adverse character of the use; but in the absence of some showing that the use was permissive in its origin it is well settled that when one claims an easement by prescription and shows an open continuous, visible, and uninterrupted use for...