Faulkner v. Hook

• Citation: 254 S.W. 48,300 Mo. 135
• Parties: HOMER L. FAULKNER, Appellant, v. Q. HOOK et al. CHARLES W. SLATTEN, Appellant, v. Q. HOOK et al. I. H. WENDLING, Appellant, v. Q. HOOK et al
• Decision Date: 31 July 1923
• Court: United States State Supreme Court of Missouri

254 S.W. 48

300 Mo. 135

HOMER L. FAULKNER, Appellant, v. Q. HOOK et al. CHARLES W. SLATTEN, Appellant, v. Q. HOOK et al. I. H. WENDLING, Appellant, v. Q. HOOK et al

Supreme Court of Missouri, First Division

July 31, 1923

Appeal from Daviess Circuit Court. -- Hon. Arch B. Davis, Judge.

Affirmed.

J. A Selby and Nat. G. Cruzen for appellants.

(1) Every unauthorized entry upon the land of another is a trespass, even though no damages are done, or the injury is slight. 38 Cyc. 995; Tubbs v. Lynch, 4 Harr. 521; Pfeiffer v. Grossman, 15 Ill. 53; Hatch v Donnell, 74 Me. 163; Brown v. Manter, 22 N.H 468; Barney Castle v. Walker, 92 N.C. 198; Daugherty v. Stepp, 18 N.C. 371; Norvell v. Gray, 1 Swan. 96; Ritter v. Sieger, 105 Pa. St. 400; Ketcham v. Cohn, 22 N.Y.S. 181; Western Union Tel. Co. v. Dickens, 148 Ala. 480; Sefton v. Prentice, 103 Cal. 670; Purto v. Chieppa, 78 Conn. 401; Chase v. Cochran, 102 Me. 431; Gusdorff v. Duncan, 94 Md. 160; Agnew v. Jones, 74 Miss. 347; Patchen v. Keeley, 19 Nev. 404; Bergman v. Vogt's Admr., 172 Mo.App. 61; Flynt v. Ry. Co., 38 Mo.App. 94; Naylor v. Hughes, 60 Mo. 105. (2) Injunction is a proper proceeding to restrain a trespass upon realty. 22 Cyc. 763; High on Inj. (4 Ed.) sec. 661. Especially is injunction a correct remedy to restrain a trespass where a party claims a right of way over land, the use of which if permitted will ripen into an easement, or a right, even though the damage suffered is small. High on Inj. (4 Ed.) sec. 702; Murphy v. Lincoln, 63 Vt. 278; Leonard v. Castle, 78 Cal. 454; Warren-Hill v. Seed Co., 65 Miss. 391; Heilbon v. Canal Co., 75 Cal. 426; Ellis v. Wren, 84 Ky. 254; 22 Cyc. 762, note 20; Cobb v. Chemical Co., 179 Mass. 423. Injunction is proper when the injury is irreparable, or when it cannot be adequately compensated in damages, as when there is no certain pecuniary standard for the admeasurement of damages. 22 Cyc. 763; State Sav. Bank v. Kercheval, 65 Mo. 682. One who aids, abets or assists in trespass, or counsels it, is liable for the trespass. Sperry v. Hurd, 267 Mo. 626. Servants and principals are both liable. Reber v. Bell Tel. Co., 196 Mo.App. 67; Ewen v. Hart, 183 Mo.App. 107; Robinson v. Min. Co., 178 Mo.App. 531; Dyer v. Tyrrell, 142 Mo.App. 467. (3) An easement can only be created by grant or by prescription. If by prescription (a presumed grant), there must exist the following conditions: (a) There must be a grantee capable of taking under the presumed grant. (b) It must be under a claim of right. (c) There must be a continuous and uninterrupted user for ten years, the statutory period in this State. (d) The use must be with the knowledge and acquiescence of the owner of the servient tenement, either actual or implied. (e) The right claimed must be adverse and not merely a permissive use. (f) There must be a definite line of travel. 19 C. J. 873. (4) Permissive use of a way over another's land will never ripen into an easement by prescription, no matter for how long a time it may be enjoyed. 19 C. J. 897; Garnett v. Slater, 56 Mo.App. 207. (5) The unorganized public cannot acquire an easement by prescription, there must be a grantee capable of taking the presumed grant. 19 C. J. 876; Turner v. Hebron, 61 Conn. 175; Union Pac. Ry. Co. v. Rollins, 5 Kan. 167; Hill v. Lord, 48 Me. 83; Bly v. Edison Elec. Co., 58 L. R. A. 500; Curtis v. Kessler, 14 Barb. 511; Munson v. Hungerford, 6 Barb. 265; Clements v. West Troy, 10 How. Pr. 199; Pearsall v. Post, 20 Wend. 111; Merwin v. Wheeler, 41 Conn. 14. (6) To establish a public highway by prescription, there must exist the following conditions: (a) It must have been used by the public for the prescribed length of time, which in Missouri, is ten years. (b) Such use must be over a definite line of travel. (c) The use must be continuous. (d) Such use must be adverse and hostile to the rights of the owner. (e) And in this State there must have been expended on such highway, money or labor for the prescribed period of ten years by the public authorities. And in the event such claimed highway is over wild and unoccupied land, the adverse use must be under a claim or color of right and not be mere license or permission by the owner, and such use must be such use as will put the owner of the highway on notice that the highway is claimed as a right. Sec. 10635, R. S. 1919; 29 C. J. 371. (7) In this State a public highway cannot be established by use alone. There must also be an expenditure of public money or labor for the ten-year period. Sec. 10625, R. S. 1919. (8) To properly plead a public highway either by grant or by prescription, the pleading should set out and describe a definite line of travel, which is not done in this case, because the pleaders in an indefinite way, plead the right to go over the lands of plaintiffs at any and all places. 19 C. J. 1001; 29 C. J. 371. (9) Putting in fences and gates shows that owner of servient estate does not recognize easement. 19 C. J. 987; 37 Cyc. 25. Likewise the deeds to the land in question, when there are no reservations, restrictions or exceptions, go to show that the owners do not recognize any easement in the land. Anthony v. Building Co., 188 Mo. 723. (10) The placing of a gate or fence across a private way prevents an acquisition of an easement in such way by the public, because it shows that the owner exercises control of the way, and if the public use the way the use is not adverse to the owner. Jones on Easements, 469; Jones v. Phillips, 59 Ark. 35; Shellhouse v. State, 110 Ind. 509; State v. Green, 21 Iowa 693; Chestnut Hill Turnpike Co. v. Piper, 77 Pa. St. 432; Cyr. v. Madore, 73 Me. 53; State v. Mitchell, 58 Iowa 567. (11) Dedication can only be made by the owner of the fee and no dedication could be made by Charles W. Slatten, who only had a life estate. Jones on Easements, 444.

L. B. Gillihan and Dudley & Brandom for respondents.

(1) The public may acquire an easement in a road by ten year's use, under a claim of right. State v. Walters, 69 Mo. 463; Fugate v. Pierce, 49 Mo. 441; Callaway v. Nolley, 31 Mo. 393; Leiweke v. Link, 147 Mo.App. 26; Strong v. Spurling, 200 Mo.App. 84. (2) And long use creates the presumption of a grant. It is well settled that the enjoyment of an incorporeal hereditament for a time sufficient to acquire title to the soil by adverse possession affords a conclusive presumption of a grant. 19 C. J. 874; Anthony v. Building Co., 188 Mo. 704; Boyce v. Railroad, 168 Mo. 583; State v. Walters, 69 Mo. 463; Power v. Dean, 112 Mo.App. 288; State v. Macy, 72 Mo.App. 427; Smith v. Muskgrove, 32 Mo.App. 241; House v. Montgomery, 19 Mo.App. 170. (3) While it is true that, strictly speaking, the unorganized public cannot acquire prescriptive rights since, in such case there are no grantees capable of taking, yet, by common uses, a highway or other public easements such as a public footway in connection with the railroad bridge, or the right to pollute a stream, or to a ford or a landing, can be created by prescription. 19 C. J., 876, sec. 22. (4) A right of way is acquired by prescription where used for the prescriptive period. The existence of gates will not weaken the force of such uses, for the easement of a right of way may exist as well with as without gates. The question of convenience or necessity is immaterial and it is of no consequence that the party claiming the easement had access to another way. 19 C. J. 895, sec. 71; Novinger v. Shoop, 201 S.W. 64; Sanford v. Kern, 223 Mo. 616; Geismann v. Trish, 151 Mo.App. 714; Leiweke v. Link, 147 Mo.App. 126; Graham v. Olson, 116 Mo.App. 272. A party is not strictly confined to a definite line of travel. The substitution of another way through a part of the land will not affect the easement. Reasonable deviations are permissible. Detours to avoid obstructions, such as fallen trees, mud holes and the like, and departures from the line of travel for the convenience of the landowner, will not impair the right to the easement. 19 C. J. 899, sec. 77. Where land is conveyed with no means of access except over the remaining land of the grantor a way of necessity is granted by implication of law. 19 C. J. 923, sec. 117; Chase v. Hall, 41 Mo.App. 15. If the land is partly surrounded by that of the grantor and partly by that of strangers a right of way exists by necessity. 19 C. J. 927, sec. 124. The right to a private way acquired by adverse use is not a license. It is a vested right. Power v. Dean, 112 Mo.App. 288. Equity will not undertake to prevent an injury by injunction unless the injury is irreparable. 22 Cyc. 762; State v. Wood, 155 Mo. 425; Harleson v. Tyler, 219 S.W. 908.

OPINION

JAMES T. BLAIR, J.

-- Faulkner, Slatten and Wendling sued separately to enjoin respondents from trespassing on their respective lands. The trial court rendered judgment against each of them, and these three appeals followed. The cases have been re-assigned. They will be considered as one.

Appellants do not state the facts in detail, and that example will be followed. The evidence is quite conflicting. When the record is considered and due deference is given the findings necessarily implicated in the decree, the facts appear to be with respondents. In 1869 or 1870 certain residents of Daviess County organized a school district. Much of the territory was uninclosed. A site for a school house near the center of the district was given by Andrew Buzzard. Much of the material and labor in construction was donated by citizens of the new district. The school house was used for school purposes from about 1869 or 1870 until 1921, when it burned. It was used as a precinct voting place for nearly forty years before the fire. At the beginning the pupils reached the school house along any path they chose to travel over the...