Faulkner v. Hook
| Decision Date | 31 July 1923 |
| Docket Number | No. 23294.,No. 23295.,No. 23292.,23292.,23294.,23295. |
| Citation | 254 S.W. 48,300 Mo. 135 |
| Parties | FAULKNER v. HOOK et al. SLATTEN v. SAME. WENDLING v. SAME. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Daviess County; Arch B. Davis, judge.
Three suits by Homer L. Faulkner against Q. Hook and others, Charles W. Slatten against same defendants, and I. H. Wendling against same defendants. From a judgment for defendants against each plaintiff, plaintiffs appeal. Affirmed.
J. A. Selby and Nat Cruzen, both of Gallatin, for appellants.
L. B. Gillihan and Dudley & Brandon, all of Gallatin, for respondents.
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 reassigned. 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 schoolhouse 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 schoolhouse was used for school purposes from about 1869 or 1810 until 1921, when it burned. It was used as a precinct voting place for nearly 40 years before the fire. At the beginning the pupils reached the schoolhouse along any path they chose to travel over the open lands about it. Some of the farms began to be fenced. The schoolhouse stood on a parcel at the northeast corner of the southeast quarter of section 9. Buzzard owned the whole of section 9 except the northeast quarter, which was owned by Hamblin. Miller owned the west half of section 10. The interference offered by the fences collected, in a sense, the indiscriminate travel over the lands, and a roadway soon came into use. A public road ran along the north side of section 9 and of section 10. Another ran along the east side of section 10. Another came into use north and south about through the middle of the west half of section 9. The way used to the schoolhouse first led from the road north of section 10, leaving it at the half mile post, south to the northwest corner of the south half of the northeast quarter of the section, now owned by respondent Hook, and then ran in a southwesterly direction to the schoolhouse. Another such way, or part or continuance of the first, ran from the road in the west part of section 9 northeasterly to the schoolhouse. Its juncture with the road last mentioned was near the home on the Buzzard, now Slatten, farm. Subsequently the way from the north and east was changed so that it reached the public road on the east Of section 10 over respondent Hook's land. There is no complaint about this part of the road and it is not involved in the case. For nearly 50 years there was general use of this way, or these ways, for access to the schoolhouse. Gates were maintained at the termini, but the evidence justifies the finding that no denial of the right to use the way was inferable from this. There is evidence that the way was not a definite one but was changed by the users frequently. The evidence to the contrary, at least so far as is necessary to show a use for more than one statutory period of 10 years, is amply strong to support the trial court's finding to that effect. There was evidence that there was travel extra viam to avoid mudholes and fallen trees and in response to slight changes in fence lines by the landowners. There is no substantial evidence of any interference with the use of a kind implying a denial of the right until after the schoolhouse burned and a controversy arose with respect to a removal of the schoolhouse site to a location on the public road. The schoolhouse was almost rebuilt before these suits were begun.
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. loc. Cit. 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 the period of the 10-year statute of limitation, the burden is cast upon the landowner to show that the use was permissive, rather than adverse, if he claims it to have been so. Pitzman v. Boyce, 111 Mo. loc. cit. 302, 19 S. W. 1104, 33 Am. St. Rep. 536; Gerstner v. Payne, 160 Mo. App. loc. cit. 205, 142 S. W. 794, and cases cited. This is the general rule. Smith v. Pennington, 122 Ky. 355, 91 S. W. 730, 8 L. R. A. (N. S.) 149, and note; Barber v. Bailey, 80 Vt. 219, 8 Atl. 008, 44 L. B. A. (N. S.) 98, and note. A prescriptive right to a conditioned use may be acquired as well as to an unhampered one. In Rogerson v. Shepherd, 33 W. Va. 307, 10 S. E. 632, it was said that—
"If the way acquired by use, although well marked and defined, is restricted, during the time required for the establishment of the right, to a use and enjoyment thereof with bars or gates across it, the right acquired will be restricted to the same extent." Brookshire v. Harp, 180 Ky. 217, 216 S. W. 370.
The owner of the servient estate may acquire by prescription a right to maintain gates across a way. Ailes v. Hallam, 39 W. Va. 305, 71 S: E. 273; Ball v. Allen, 216 Mass. 469, 103 N. B. 928, Ann. Cas. 1917A,...
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