Franck Bros., Inc. v. Rose

• Citation: 301 S.W.2d 806
• Decision Date: 08 April 1957
• Docket Number: No. 1,No. 45563,45563,1
• Parties: FRANCK BROS., Inc., a Corporation, Plaintiff-Respondent, v. Olga ROSE, a/k/a Betty Rose and Robert A. Rose, her Husband, Defendants-Appellants, D. Calhoun Jones, Trustee, and Elizabeth Herweck, Joseph Falzone, Trustee, and Edward K. Love Jr., Defendants
• Court: United States State Supreme Court of Missouri

Page 806

301 S.W.2d 806

FRANCK BROS., Inc., a Corporation, Plaintiff-Respondent, v. Olga ROSE, a/k/a Betty Rose and Robert A. Rose, her Husband Defendants-Appellants D. Calhoun Jones, Trustee, and Elizabeth Herweck, Joseph Falzone, Trustee, and Edward K. Love Jr., Defendants.

No. 45563.

Supreme Court of Missouri, Division No. 1.

April 8, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 13, 1957.

C. Willard Max and R. W. Jacobsmeyer, Clayton, for appellants.

Ziercher, Tzinberg, Human & Michenfelder, Herbert W. Ziercher, Clayton, for respondent.

HOLMAN, Commissioner.

Plaintiff in this action sought a decree adjudicating that it is the sole owner, in fee simple, of a strip of ground (described as a 15-foot roadway) through a tract of land owned by plaintiff, and barring defendants from claiming any title or interest therein. The defendants are Olga Rose, the record owner of the disputed roadway, Robert A. Rose, her husband, and the trustees and noteholders named in two deeds of trust executed by the Roses. The trial court found the issues in favor of plaintiff. From the ensuing judgment and decree the defendants Rose have duly appealed. Since the case is one involving 'the title to real estate,' we have appellate jurisdiction. Article V, Section 3, Constitution of Missouri 1945, V.A.M.S.

By a deed dated July 2, 1940, Gilbert Franck and Dickson (Richard) Franck acquired title to a tract of land in St. Louis County, Missouri, described as follows: 'Lots Four (4) and Five (5) of Ephraim Barber's Estate Subdivision in Section 36, Township 45 North, Range 3 East, containing together 82.54 acres, excepting therefrom the southern part of Lot Five (5) conveyed to Joseph Boehn by deed recorded in Book 765 page 387, containing 20 acres, excluding fifteen (15) foot private road, as now traveled from east to west through said 20 acre tract, together with all improvements thereon. Subject to roads and easements, if any.' In 1950, Gilbert and Dickson conveyed the land to plaintiff, Franck Bros., Inc.

On July 1, 1948, defendant Olga Rose obtained title to a tract of land which included 'Lot 3 of the Subdivision of the Estate of Ephraim Barber, deceased, containing 41.63 acres,' the west boundary of said lot adjoining the east boundary of plaintiff's Lot 4. Also included in the conveyance to Mrs. Rose was 'a roadway, 15 feet wide [through described tracts which we will refer to as Lots 4 and 5] where now located, connecting with Shepard County Road.' The land involved in this case is that 15-foot roadway through Lot 4. It was first created of record in 1920 in a conveyance to Patrick M. Queenan wherein the roadway through Lots 4 and 5 was described in connection with the conveyance of Lot 3 (and other land). No purpose would be served by detailing herein the chain of title to the property involved as there is no dispute about the fact that at trial time Mrs. Rose was the record owner of the roadway (whether it be an easement or fee) and plaintiff was the owner of Lot 4, except for the interest, if any, of the Roses in the roadway.

Plaintiff contends (1) that any interest the Roses may have acquired in the roadway has been extinguished by the adverse possession of plaintiff and its grantors since 1940, and (2) that the interest of said defendants and their predecessors in title was only an easement for a roadway and that such has been legally abandoned by them. The defendants Rose contend that (1) Olga acquired a fee simple title in the 15-foot strip, (2) plaintiff failed to prove all of the elements necessary to gain title by adverse possession, and (3) assuming that her interest was an easement it has not been lost by abandonment.

As stated, the trial court found the issues for plaintiff. In part, the decree recited, 'That plaintiff and its predecessors in title have shown by clear and positive proof that they have occupied all of said Lot 4 in actual, open, notorious, adverse, continuous, undisputed, exclusive and lawful possession and under their warranty deed more than ten years next before the commencement of this action, to-wit: since the 2nd day of July, 1940; that no roadway through said Lot 4 has been used as a roadway connecting the property of defendants Rose with Shepard County Road during said period; that plaintiff and its predecessors in title have paid all general taxes of every kind on said property in good faith; * * * that it is not necessary for this court to determine whether the grant to Patrick M. Queenan is an easement for a roadway or a fee to the 15 foot strip described in said conveyance because * * * the adverse possession by plaintiff and its predecessors in title for over ten years has resulted in the extinguishment of all rights defendants Rose may have had in the property of plaintiff, whether such rights were a fee interest or an easement running with Rose's land.'

The evidence concerning the issues of adverse possession and abandonment consists of the testimony of three witnesses, certain photographs, and the records of tax payments, deeds of trusts, etc.

Plaintiff, for its proof on the contested issues, presented only one witness, Richard Franck, who, with his brother Gilbert, purchased Lot 4 on July 2, 1940. He stated that in the process of preparing to consummate the purchase, they discovered the record of the roadway in question upon examination of the title; that they then went to the property in an effort to locate the roadway and found some rocks and 'washed out gulleys that we assumed to be a road.' (Apparently, this discovery did not cause the Franck brothers to refuse to purchase the land.) The witness further stated that shortly after they obtained title he and his brother rode horses over the land and, in so doing, came to an old wooden bridge near the eastern boundary of Lot 4 (which appeared to be a part of the roadway in question); that they attempted to lead a horse across the bridge and 'when the horse got on the bridge he went through'; that within a year the bridge fell in 'from sheer deterioration'; that it was impossible to use the roadway without the bridge as it was the means of crossing a creek or branch 12 feet deep and 20 feet wide; that no one has used, or claimed the right to use, the roadway from 1941 to the date of trial, and that he, his brother, and plaintiff have exercised full control over the property since said date to the exclusion of all others.

More specifically, Mr. Franck testified that he was a camp director by profession and was president of plaintiff corporation; that Lot 4 was quite hilly and much of it was covered with trees, although there was some cleared ground; that they dug a deep well and built a mess hall and bunk house and used portions of the property for a children's summer camp during the years 1941, 1942, and 1949; that upon occasions the children would camp out in the woods overnight and frequently would choose a spot near the old bridge; that the children attending the summer camp would go back and forth over the roadway. Mr. Franck stated that he lived in the house on this land most every summer after 1940, and was upon the premises almost every Saturday and Sunday during the remainder of the year; that the portion of the land crossed by the alleged roadway is unfenced; that at various times they have placed 'keep off' signs upon their land generally. This witness employed a photographer to take a number of pictures of various parts of this roadway and in connection with the introduction of those pictures in evidence, testified concerning the condition of the roadway. We think it sufficient to say generally that these pictures indicate that the bridge previously mentioned has almost completely rotted away and that portions of the roadway have grown up in brush, vines, weeds, and small trees, indicating that the roadway has not been improved, maintained, or used for a number of years. In one place a rather large tree has fallen across the roadway. The witness stated further that shortly before this suit was filed plaintiff contracted to sell its land, and that when the abstract of title disclosed the existence of this roadway the purchaser refused to accept the deed; that an attempt was then made to obtain a quitclaim deed to the roadway from Mrs. Rose, and upon her refusal to execute same, plaintiff instituted this quiet title action.

Defendants sought to support their contentions upon the vital issues by two witnesses, Mr. Rose and Eugene Mosley, a real estate broker. Mr. Rose conceded that he had not used the roadway in going to and from his wife's property from Shepard Road, and that they had an easement which they could use to go from their property to another road on the east side of their property; that in so doing it was necessary to cross a creek bed; that he had placed a bridge over this creek bed but it had washed out and now he could get over the roadway only when it was dry. He stated that he had used the roadway over Lot 4 in walking over it while hunting, but it developed on cross-examination that he did not confine his hunting to this roadway but strolled back and forth over the roadway and the surrounding area.

Mr. Mosley testified that he had been familiar with the Rose property and this roadway for 50 years. He stated that he had gone over the roadway in an automobile perhaps a dozen times in the last 10 years in showing the Rose property to prospective purchasers and that several of these instances had been since 1948. In connection with his testimony it was developed that he had some interest in the litigation, as he had a 'deal' pending to sell the Rose property which apparently was somewhat contingent upon the outcome of the litigation.

It would appear that perhaps the owner of Lot 4 and the record owner of the roadway may have each paid the taxes upon this roadway. There was evidence that plaintiff and its predecessors have paid the taxes upon Lot 4 without any...