Gilleland v. Rutt
| Citation | 63 S.W.2d 199 |
| Decision Date | 11 September 1933 |
| Docket Number | No. 17762.,17762. |
| Parties | GILLELAND v. RUTT. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.
Suit by Robert Z. Gilleland to enjoin C. F. Rutt from interfering with petitioner's possession of land. Judgment for defendant, and plaintiff appeals.
Affirmed.
Silvers & Hargus, of Harrisonville, for appellant.
J. S. Brierly, of Harrisonville, for respondent.
REYNOLDS, Commissioner.
This is an action brought in the circuit court of Cass county, Mo., in which the plaintiff, Robert Z. Gilleland, the appellant, seeks to restrain and enjoin the defendant, C. F. Rutt, the respondent, from interfering with his possession of a certain tract of land in said county of Cass, of which he claims to be the owner, and from appropriating and converting said tract of land to his own use for a roadway or other purpose, and from the commission of other alleged trespasses thereon. The plaintiff alleges in his petition that he is the owner of the west half of the southwest quarter of section 25, township 45, range 30, Cass county, Mo., and that the defendant Rutt demands the right to use for a passageway and for pasturing his stock and other purposes a strip of land about 19 feet in width off the north side thereof without having any right, title, or interest therein; that plaintiff in the year of 1931 began the erection of a fence along the north side of his said tract of land along the line between said tract and that of his adjoining proprietor, one Small, lying immediately north thereof, when defendant wrongfully cut down and destroyed the same, threatened plaintiff with bodily harm, and by intimidation prevented plaintiff from erecting said fence, and declared that he would cut down any fence that might be erected by plaintiff; that the defendant designs to convert said strip of land to his own use for a private road or passageway, and that no necessity exists therefor; that the defendant, unless restrained, will continue to appropriate plaintiff's land to plaintiff's great damage; and that said damage will be irreparable; and that plaintiff is without an adequate remedy at law.
The prayer of the petition is that the defendant be enjoined and restrained from cutting down plaintiff's fence and from appropriating plaintiff's land and from interfering with the plaintiff's peaceful possession of the same, and for such other and further relief as may appear just.
It appears from the record that one J. C. Small is the owner of the adjoining 40-acre tract of land lying immediately north of plaintiff's said tract. Plaintiff's fence across the north side of his land is variously estimated in the record as being from 15 to 19 feet south of the line between his land and that of the Small tract; and likewise the fence across the south side of the Small tract is some 15 feet north of said line, leaving a strip of land between the two fences and along the line between the two tracts around 30 feet in width, of which the strip in controversy forms the south part.
A temporary injunction seems to have been granted; and, in due time, the defendant answered, claiming that the strip of land in controversy together with a like strip adjoining immediately north off the J. C. Small tract is being used by himself and the public generally as a roadway, and has been continuously so used by himself and grantors and the public for a period of more than 10 years without objection or interference from any source, except from plaintiff recently before the filing of the petition, and for such length of time that plaintiff and his grantors are estopped to question the right to the use thereof as a roadway by defendant and the public; and alleging further facts which, if true, are sufficient to show that such strip forms the south part of a public road by dedication of the owner thereof and by the acceptance and use of the public. The answer admits that one J. C. Small is the owner of the southwest quarter of the northwest quarter of section 25, township 45, range 30, Cass county, as alleged in the petition, except as to the strip of 15 feet off the south side thereof, in use as part of said road; and admits that the plaintiff is the owner of the west half of southwest quarter of said section 25, as alleged in the petition, except the north 15 feet thereof, in use as part of said road; and admits that defendant claims the right to use the strip of 15 feet or more off the north side of plaintiff's said land as a part of said roadway; and denies all other allegations of the petition; and asks that the injunction be dismissed.
To the answer of defendant, plaintiff filed a reply, being a general denial.
Upon final hearing at the close of all the evidence, the trial court found the issues for the defendant, sustained a demurrer offered by the defendant, dissolved the temporary injunction, and ordered judgment for the defendant. From this judgment, after an unsuccessful motion for new trial, plaintiff prosecutes this appeal. The plaintiff makes numerous assignments of error as follows: First, the court erred in refusing plaintiff the injunctive relief at the close of the entire case for which he asked. Second, the court erred in sustaining defendant's demurrer at the close of all the evidence asking that same be sustained on the law and the evidence and the facts in the case. Third, the court erred in finding the issues in favor of the defendant and dissolving the temporary injunction. Fourth, the court erred in that its findings were against the evidence and the weight thereof. Fifth, the court erred in that its finding was against the law as applied to the evidence in the case. Sixth, the court erred in its finding in that there was no evidence upon which a verdict for defendant could be found. Seventh, the court erred in that the court's finding was erroneous, void, and wholly insufficient. Eighth, the court erred in overruling plaintiff's motion for a new trial.
The last assignment does not appear to have been brought forward in appellant's brief in the points or argument and may be treated as abandoned. Wilson v. Frankel (Mo. Sup.) 61 S.W.(2d) 363, loc. cit. 366.
There is no evidence in the record touching the destruction of plaintiff's fence or of threats or intimidation by defendant preventing plaintiff from building his fence, or of the use by defendant of the strip of land for pasturing stock; and, all such being denied by the defendant in his answer, the only question remaining is whether the strip of land in controversy is part of an established road for the use of the public and is now being so used by the public. Appellant's assignments of error lead back to a consideration of the evidence in the record; and whether said assignments or any of them are well made depends upon the view to be taken of the evidence.
1. Plaintiff insists in his brief and argument in support particularly of his first assignment of error that the defendant's claim under the evidence narrowed down to the point that the strip of land in controversy had been dedicated by the plaintiff to private use, and that it had not been shown that the same was ever a public road or had been dedicated as such; that there is no such thing as a dedication to private use, and that the finding should have been for the plaintiff and the injunctive relief asked by him granted.
2. An examination of the evidence and the record discloses that the strip of land in controversy forms a part of a roadway for public use that has been in continuous use as such for over 50 years. There is evidence from one witness that it was in use in the year of 1867, and has been continuously...
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