George v. Crosno
| Decision Date | 15 December 1952 |
| Docket Number | No. 7095,7095 |
| Parties | GEORGE et al. v. CROSNO. |
| Court | Missouri Court of Appeals |
Joslyn & Joslyn and L. D. Joslyn, Charleston, for appellant.
Haw & Haw, Charleston, for respondent.
From a decree granting a permanent injunction restraining defendant from placing an obstruction across a road, he has appealed.
The case was tried on one count of an amended petition, which alleged that the plaintiffs were the owners of the N 1/2 of the NE 1/4 and the E 1/2 of the NW 1/4 of Section 3, Township 24, R 17, in Mississippi County, their home being located in the southeast corner of the SE 1/4 of the NW 1/4 of said section; that defendant was the owner of the N 1/2 of SW 1/4 of said Section 3; that a roadway ran along the south side of defendant's land, entering the public highway on the west side; that this roadway had been there 40 years or more 'and used constantly by the public during all that time.' It was then alleged that plaintiffs have resided at the place designated since the 5th day of September, 1946, and that it is necessary for them to use the roadway on the south side of defendant's premises for access to the public highway on the west side thereof; that it is the only practical means of access to said highway 'and the only possible means of ingress and egress from said highway to and from their home at this time.
The petition further stated that plaintiffs and their predecessors in title had the 'open, notorious, continuous and uninterrupted use of said roadway under the claim of right and with the knowledge and acquiescence of defendant for more than ten years last before the date of the filing of this petition and have acquired a permanent easement and right to the uninterrupted use thereof.'
It is then alleged that defendant, his servants, agents and employees constructed a gate across said roadway about March 21, 1950, locked the same and have obstructed the use of the road by plaintiffs and will continue to do so and thereby prevent plaintiffs from travelling the same unless restrained from so doing. The prayer asked the court to issue a temporary injunction, the same to be made permanent upon final hearing. Damages were also asked in the sum of $500.
The amended answer admitted the ownership of the land as alleged in the petition but denied everything else.
At the time of the filing of the petition, a temporary injunction was issued. The cause was tried on the 9th day of November 1950, upon conclusion of which, the court took the matter under advisement.
On December 19, 1951, the court made the temporary injunction permanent and after a motion for new trial was overruled, defendant has appealed. The following plat shows the location of the pieces of land described in the evidence as well as the houses, roads, etc., material to the issues here:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Plaintiffs' evidence showed that the road in question entered defendant's property from what is now State Highway No. 55, which runs north and south on the west side of defendant's land. It entered the premises through a gate at the road, thence into his horse lot, through another gate, circled north of his house, and between his house, barns and other buildings then back in a southeasterly direction to another gate, entering his field from the horse lot, thence to his turnrow on the south side of his place, proceeding due east to the southeast corner of his land where there was a fourth gate. The road may be located from 'A' to 'B' on the plat.
Plaintiffs' evidence also tended to show that for many years this road (which was defendant's turnrow) had been in this location, had had at least four gates across it, including one installed in 1935 (probably a replacement) at the extreme east and thereof where it left the defendant's premises (at 'B' on plat) and that these gates had always remained closed, except when being used to permit passage through them. The gates on the east and west ends of the road were equipped with chains and locks attached to the gate or gate posts so the gates could be locked. One of plaintiffs' witnesses (Anderson Ferris or Verse) testified that for several years, from 1932 to 1946, the extreme east and west gates across this road (with the probable exception of the year 1945) were kept locked in the winter time, or during wet weather, at one time for three or four months. Plaintiffs' evidence further showed that since he had purchased the property in the neighborhood, he had used this road whenever he desired to go to State Highway 55 and to points on that highway, always opening and closing the gates in so doing. At one time when plaintiff, Clarence George, lived on the defendant's place, one A. L. Story, (a witness) in trying to go through, found the gate locked and Mr. George unlocked it for him.
Plaintiff, Clarence George, testified that twice he had found one of the gates locked and that at each time he had broken the chain or lock in order to open the gate so he could go through. The inference could be drawn from plaintiffs' testimony that this road was intermittently used by several people for several years before and after plaintiffs acquired their adjoining farm, but there is no evidence that at any time the gates were not there, or that they were ever left open.
Other witnesses testified that when they used this road, they did not ask permission of anyone, neither was any objection ever made to their using it, in fact, the evidence seems to show that the owner did not live on the premises but that he rented it to tenants who did.
The evidence on the part of defendant was that this turnrow was never thrown open to the public as a road, that it had never been graded as a road, although at one time, a ditch for drainage had been made between it and his south fence and that for convenience a culvert had been built across it by one of his tenants to aid in crossing a slough or drain. When his field was cultivated, the rows ran north and south and the turnrow was used to turn on so the corn would not be trampled. His evidence further showed that during the winter months and during wet weather, the gates were kept locked because he did not want anyone going through his land when the ground was wet and soft and that it was in that condition most of each winter because, adjoining his land on the south there was a woodland which shaded the turnrow and kept it from drying out.
The defendant testified as to the number of gates he had installed through his premises along his turnrow; that he had affixed to some of the gates chains and locks; that he had never given anyone the right to use this turnrow permanently as a road but he and his tenants had, at times, upon their request, permitted certain neighbors to do so. This was always with the understanding that they would open and close the gates to keep his stock in their enclosures as this land was used mostly as a stock farm. It seems that plaintiff, Clarence George, a short time before this litigation started, had asked him about using the road and that he told him he would permit him to do so if he would sign a statement that the use was permissive and that it was not to be adversely used, so it could not ripen into an easement by prescription. This the plaintiff refused to do.
In making the temporary injunction permanent, the Chancellor does not state whether he thinks this was a public road, an easement by prescription, an implied dedication or a way of necessity. He merely makes the temporary injunction permanent. The...
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