Goad v. Bennett

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM; All concur, except WEIER
• Citation: Goad v. Bennett, 480 S.W.2d 77 (Mo. App. 1972)
• Decision Date: 25 April 1972
• Docket Number: No. 34215,34215
• Parties: Norman L. GOAD et al., Plaintiffs-Appellants, v. Bobby BENNETT et al., Defendants-Respondents. . Louis District

Page 77

480 S.W.2d 77

Norman L. GOAD et al., Plaintiffs-Appellants, v. Bobby BENNETT et al., Defendants-Respondents.

No. 34215.

Missouri Court of Appeals, St. Louis District.

April 25, 1972.

Dearing, Richeson, Roberts & Wegmann by John A. Schneider, Hillsboro, for plaintiffs-appellants.

Benson Cytron, House Springs, for defendants-respondents.

PER CURIAM:

This case concerns plaintiffs' right to drive their dump trucks over the roadways of a subdivision. This to afford access to plaintiffs' undeveloped six-acre tract therein, from which tract plaintiffs hauled topsoil. On occasions plaintiffs hauled as many as 25 loads a day but never more than 200 loads in a single year. Trouble began when the defendant lot owners protested that plaintiffs' trucks were damaging the roadways and thereafter put barricades across the two roads serving plaintiffs' tract.

Plaintiffs sued to enjoin defendants from blocking the roadways. By counterclaim defendants sought to enjoin plaintiff from driving dump trucks over the subdivision roadways.

The issue throughout this litigation was the parties' respective rights to use the roadways of Big River Hills. The rights of each sprang from the platting of that land by the original owner. Plaintiffs pleaded the platting gave all parties 'an implied grant of an easement' over the roadways and prayed for an injunction against the defendants interfering with plaintiffs using the roadways. By their counterclaim defendants pleaded plaintiffs' use of the roadways would 'destroy the residential character of Big River Hills' and prayed for an injunction to restrain plaintiffs from using the roadways. The trial court found that all parties had an easement over all roads 'for uses consistent with residential development' and enjoined plaintiffs from using the roadways for any other purpose. This barred plaintiffs from all use of their tract as a source of topsoil, its only practical use. Plaintiffs appeal, contending the court erred in limiting their implied easement and thereby denying them the beneficial use of their property.

'Big River Hills' is a subdivision in an unincorporated area of Jefferson County. In 1929 Hilda M. Straub, then the owner of approximately 60 acres, had her land surveyed and platted in accordance with §§ 9283 to 9286, RSMo 1919, (now §§ 445.010 to 445.040, RSMo 1969, V.A.M.S.). The plat was duly certified by surveyors, acknowledged by the owner and recorded. The plat shows 88 numbered residential lots, two commercial lots and the unnumbered six-acre tract now owned by plaintiffs. One pre-existing north-south county road bisected the subdivision. Fingering out each side of the county road are four platted, named roadways giving each lot access to at least one roadway. 'Beach Drive' and 'Meadow Lane' afford access to plaintiffs' tract. This unimproved, triangular tract is bounded on the west by residential lots, on the south by 'Beach Drive' and on the north and east by Big River.

Plaintiffs' tract lies in the flood plain of Big River. Frequent flooding makes the tract unsuitable for either construction or agriculture. But the floods regularly deposit silt in substantial quantities and plaintiffs remove this silt for topsoil in their home-building operations. The tract is worthless for any other purpose.

By her acknowledgement on the plat Hilda Straub imposed restrictions as to building lines and limiting construction to residences except on the two commercial lots. A 50-foot strip along Big River was set apart as a playground and beach for lot owners and their guests. Mrs. Straub further reserved to herself an easement for utilities over and across all roadways shown on the plat. The plat makes no other reference to the platted roadways or the use thereof. We hold that by this instrument the original purchaser of plaintiffs' six-acre tract was granted an easement over the subdivision roadways giving access thereto. This was an easement 'running with the land' and is now an easement in favor of plaintiffs. Beldner v. General Electric Company, Mo., 451 S.W.2d 65(6--9).

In Kelly v. Schmelz, Mo.App., 439 S.W.2d 211(3), we said: '. . . where the grant is specifically for a 'way or roadway,' but without limitation, Missouri follows the rule as set out in 28 C.J.S. Easements § 87, pages 766--767: '. . . where a way is granted or reserved without limitation as to its use, it will not necessarily be confined to the purpose for which the land was used at the time the way was created, but may be used for any purpose to which the land accommodated by the way may naturally and reasonably be devoted. . . ."'

The quiet-title case of Larkin v. Kieselmann, Mo., 259 S.W.2d 785, concerned a subdivision wherein the original owner, Joseph Weigand, filed a plat showing a 60-foot private road abutting lot one. Weigand conveyed lot one to defendants' predecessors in title; later, Weigand's heirs conveyed half of the roadway to plaintiff by warranty deed. The court said: 'The question for decision is whether the conveyance of lots by reference to a recorded plat, on which a tract of land 60 feet wide and 460 feet long is designated as a private street, creates a perpetual easement therein for street purposes in the purchasers of lots abutting on the tract and their successors in title. . . . Plaintiff...