Gill Grain Co. v. Poos

• Decision Date: 18 February 1986
• Docket Number: No. WD,WD
• Citation: 707 S.W.2d 434
• Parties: GILL GRAIN COMPANY, Appellant, v. Dale POOS, et al., Respondent. 36580.
• Court: Missouri Court of Appeals

Page 434

707 S.W.2d 434

GILL GRAIN COMPANY, Appellant, v. Dale POOS, et al., Respondent.

No. WD 36580.

Missouri Court of Appeals,

Western District.

Feb. 18, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

March 27, 1986.

Frank P. Sebree, Kansas City, for appellant.

Robert H. Shaw, Don Witt, Platte City, for Glen and Dale Poos.

John R. Cady, Platte City, for Lois C. Werly, Shirley Brunor, Ruby Cecil and Marian Wheeler.

Before CLARK, P.J., and PRITCHARD and BERREY, JJ.

BERREY, Judge.

Plaintiff, the Gill Grain Company, appeals from a judgment granting the defendants, Glenn and Dale Poos, a prescriptive easement and denying relief on its petition for quiet title and trespass. Plaintiff also appeals a directed verdict at the close of all the evidence for defendants, Lois C. Werly, Shirley Bruno, Ruby Cecil and Marian Wheeler, (hereinafter Cecil heirs) on a claim for the breach of warranty.

The properties involved are located in Platte County, Missouri, and consist of two parcels of land which are divided by the Missouri State Route 45 and the Chicago, Burlington and Quincy Railroad. The right-of-way was granted to the railroad by K.B. and Ruth Cecil, grandparents of the Cecil heirs. This right of way is about forty feet west of and runs parallel with Missouri Route 45. The property to the west of this division is designated as Tract A and the property to the east is designated as Tract B.

Approximately 660 feet to the west of Tract A's eastern edge (that abuts the railroad's right-of-way) lies an old abandoned Chicago, Burlington and Quincy Railroad right-of-way. It is described as the "old cinder block trail." The location of the alleged easement is in Tract A and runs approximately fifteen feet south of and parallel to the northern edge of the tract, from the cinder block trail to the center line of the Chicago, Burlington and Quincy Railroad.

The Cecil heirs inherited Tract A and B upon the death of their father, Samuel Marion Cecil, in 1928. In 1934, L.K. Poos, Glenn Poos' father, began leasing the Cecil properties as a tenant farmer, and in 1936, became a tenant farmer on the property adjacent to Tract A to the north. L.K. Poos then purchased the adjacent property in 1937.

L.K. Poos and Glenn Poos, who helped his father farm the properties, would cross Tract A using the disputed roadway, located on the northern edge of the tract, to gain access to their own property. They also used the road for access to Tract B. The tenant arrangement between L.K. Poos and the Cecil heirs continued until 1944 when L.K. Poos retired.

Much of the evidence focused on the time between 1944 and 1955, the alleged prescriptive period. Several of the Cecil heirs believed Glenn Poos was a tenant farmer on the tracts during this period. Although Glenn Poos stated in his deposition on February 16, 1981, that he began farming the Cecil property in 1944, Glenn testified that after he checked his records at home he found he did not begin the tenancy arrangement until 1955. He stated he corrected his deposition in February, 1981 seven months prior to trial.

There was testimony from Robert Baker and Walter J. Searcy ¹ that Carl Oliver leased and farmed the Cecil property from 1944 until his death in 1955. Although Mr. Oliver and Glenn Poos traded work, Mr. Baker stated they were never partners.

Dale Poos testified that from 1944 to 1955, he and his dad traveled back and forth on the disputed "road" as an access road to their farm which was adjacent to Tract A. Glenn testified that because he used the "road" he often took care of it by mowing the grass. He stated he never asked anyone if he could use the road. Several of the Cecil heirs testified, however, that when neighbors, including the Poos', crossed Tract A it was with their implicit permission as a neighborly gesture.

Glenn Poos stated he began leasing the Cecil property in 1955. Dale helped his father with the farming and in 1972, after his dad's retirement, he began a year-to-year tenancy with the Cecil heirs. Dale testified that throughout his tenancy with the Cecil heirs he continued using the roadway because it was the only access to his property. ²

On February 16, 1978, the Cecil heirs sold Tract A and B to appellant, the Gill Grain Company. Ray Gill, the president of Gill Grain, stated that prior to the sale he made several inspections of the tracts and found no evidence of a "road."

Mr. Gayle Eutcher, a licensed surveyor, was hired by appellant prior to the purchase. Mr. Eutcher testified he did not indicate any roadway or easement on his survey because he found no easement of record. The surveyor, however, stated he observed "visible ruts" which he further described as a "field road." Glen Poos testified that as he helped Mr. Eutcher locate a landmark for his survey he took him across the "road" in his pick-up truck.

Descriptions of the "road" varied. The width of the disputed road ranged from eight feet to fifty feet. Witnesses described it as a dirt path, a dirt roadway, a field road as well as a country lane. Ruby Cecil Adams told of walking across the "lane" to catch the school bus as a girl in the 1930's. Evidence in the record also showed the road had been used as a traffic detour in 1953 while Highway 92 was being built.

The disputed road was identified in an Atlas of the county published in 1907. The road was visible on aerial maps taken in 1953 and 1965. Additionally, it was identified in the United States Geological Survey maps dated 1961.

Appellant asserted it was not aware of the alleged easement until Ray and John Gill investigated and found that Dale Poos was driving his farm equipment on the cinder block trail and then across the appellant's property to gain access to Route 45. Dale Poos refused to stop using the disputed road after requests by the appellant and finally, appellant filed suit.

In its second amended petition appellant asserted a trespass action for damages and an action to quiet title against the Poos'. Gill Grain also asserted a breach of warranty of good title claim against the Cecil heirs. The Cecil heirs filed a cross-claim against Dale Poos for slander of title. The Poos then filed a counter-claim against Gill Grain alleging prescriptive easement and seeking quiet title.

The trespass claim against defendant Glenn Poos was dismissed at the close of the plaintiff's evidence. The appellants' claim of breach of warranty against the Cecil Heirs and the claim for slander of good title against the Poos' were dismissed at the conclusion of all the evidence. The trial court granted defendant Glen Poos a prescriptive easement and denied appellant relief on all counts of its petition. This appeal ensued.

Appellant alleges trial court error in granting the prescriptive easement in that (1) the trial court erroneously found the facts gave rise to a presumption of adverse use under a claim of right and (2) that the trial court mistakenly ruled that appellant failed to prove the use of the Cecil property was permissive. Additionally, appellant contends the trial court's finding that appellant had notice of this easement is unsupported by the evidence.

As a preliminary matter, with a court-tried case, the appellate court may not set aside the judgment below unless it is under a firm belief that it is wrong. The trial court's judgment will be sustained "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

To establish a prescriptive easement the evidence must show a continuous, uninterrupted visible and adverse use for a period of ten years. Fortenberry v. Bali, 668 S.W.2d 216, 219 (Mo.App.1984). Because prescriptive rights are not favored in the law, Cook v. Bolin, 296 S.W.2d 181, 187 (Mo.App.1956), these requirements must be established by clear and convincing evidence. George v. Dickinson, 504 S.W.2d 658, 663 (Mo.App.1974).

The party claiming the right of use, however, enjoys a presumption that the use is adverse and under a claim of right when there has been a long and continuous use of the disputed property. Id. This presumption casts the burden upon the landowner to show the use was permissive and not adverse. Lawless v. Sears, Roebuck & Co., 555 S.W.2d 79, 81 (Mo.App.1977). Appellant, relying on Lawless, supra, at 81, asserts that no presumption should have arisen in this case because there was "evidence as to the origin of the user in question." Cases cited by Lawless, supra, and others, however, also note that evidence must reveal that the use was "originally permissive" to stop the presumption from arising. Sears v. Norman, 543 S.W.2d 300, 305 (Mo.App.1976). In the Lawless case, plaintiff's [the party asserting the adverse use] own evidence showed the parties had originally entered into an "Easement Agreement."

Appellant states the origin of the Poos' use is permissive in that it was the custom and practice of the neighborhood to grant permission to cross each other's properties. The Cecil heirs, however, admitted that they had not granted Mr. Glenn Poos permission to use the road although he did so openly. In the same vein, Mr. Glenn Poos testified that he had never requested permission to use the road and that no one interfered with his use. The court in Burgess v. Sweet, 662 S.W.2d 916, 918 (Mo.App.1983) found an adverse use rather than a permissive one and noted that:

The record reflects there were never any requests or denials of permission to use said road and that it was always used openly. The use of the roadway by the plaintiffs and their predecessors was open and visible and was never interfered with or barred.

Appellant also alleges there existed a permissive origin because L.K. and Glenn Poos began using the roadway as part of the tenancy arrangement with Cecil heirs. This court...