Harrison v. Deheus

• Decision Date: 14 August 2007
• Docket Number: No. 28162.,28162.
• Citation: 230 S.W.3d 68
• Parties: William and Ruth HARRISON, Husband and Wife, Respondents, v. Keith L. DEHEUS, a single person, Appellant, and Junior E. Waggener and Blanche E. Waggener, Trustees of The Junior E. Waggener and Blanche E. Waggener Revocable Living Trust, Defendants.
• Court: Missouri Court of Appeals

230 S.W.3d 68

William and Ruth HARRISON, Husband and Wife, Respondents, v. Keith L. DEHEUS, a single person, Appellant, and Junior E. Waggener and Blanche E. Waggener, Trustees of The Junior E. Waggener and Blanche E. Waggener Revocable Living Trust, Defendants.

No. 28162.

Missouri Court of Appeals, Southern District, Division Two.

August 14, 2007.

Ronald K. Carpenter, Camdenton, for Appellants.

Daniel C. Mizell, Asst. Atty. Gen., Lebanon, for Respondents.

ROBERT S. BARNEY, Presiding Judge.

Keith L. DeHeus ("Appellant") appeals the judgment of the trial court which granted Respondents William and Ruth Harrison ("the Harrisons") a prescriptive easement over a roadway ("the Old Roadway") traversing certain property located in Harmony Cove subdivision near the Lake of the Ozarks in Camden County, Missouri, and which also granted an injunction ordering Appellant to remove obstructions and refrain from building additional obstructions on the Old Roadway.¹ In his two points relied on Appellant asserts the trial court erred in finding there was a prescriptive easement because the Harrisons "failed to offer evidence of the exact location of the `Old Roadway,'" and also erred by finding the Harrisons "were protected by the Statute of Frauds and not bound by their oral agreement . . . ." We affirm the judgment of the trial court.

Viewing the record in the light most favorable to the trial court's judgment, Southern Star Central Gas Pipeline, Inc. v. Murray, 190 S.W.3d 423, 429 (Mo.App. 2006), the record reveals that all of the parties to this matter own real property in Harmony Cove subdivision near the Lake of the Ozarks. It appears that in 1975 Junior Waggener ("Mr. Waggener") and his wife, Blanche Waggener (collectively "the Waggeners"), purchased several acres in Harmony Cove subdivision.² At that time, the Old Roadway, which was not paved, traversed the property of all the parties and was used by the landowners for ingress and egress to their properties although there was no legal documentation relating to this use. In 1985, the Harrisons purchased their property which is located South of the Waggeners' property; the Harrisons then commenced utilizing the Old Roadway for access to their property. In 2000, Mr. Waggener sold a piece of property adjacent to the Harrisons' property to Appellant's predecessors in interest. In 2001, Appellant bought this property through which a portion of the Old Roadway traverses.

The record further reveals that the year prior to Appellant's purchase of his property, Mr. Waggener had approached Mr. Harrison about Mr. Waggener's desire to pave the Old Roadway and vary its course across the Waggener property so that a home could be constructed close to the lakefront. Thereafter, Mr. Waggener constructed a new roadway ("the New Roadway") that was paved and took a different path across the Waggeners' property other than the Old Roadway. While the parties then utilized the New Roadway for ingress and egress the record also shows that the Harrisons also continued using the Old Roadway for ingress and egress.

In 2002, Appellant constructed a deck on his home which was located directly over a portion of the path of the Old Roadway.

On March 11, 2003, the Harrisons seasonably filed their Second Amended Petition against Appellant, the Tomlinsons, and the Waggeners. Their petition requested declaratory relief in the form of a prescriptive easement for use of the Old Roadway because the Old Roadway had "been used by [the Harrisons] and [their] predecessors in title as a means of ingress and egress to [their] property for the last fifty (50) years" and that use "has been open, visible, notorious, adverse, under a claim of right and for a continuous and uninterrupted period in excess of ten (10) years." Further, in their Second Amended Petition they requested the ejectment of Appellant, who, due to his deck, "is currently in possession of the [Old] Roadway and has denied [the Harrisons'] use of said [Old] Roadway." Additionally, the Harrisons requested an injunction enjoining Appellant from "further construction in the [Old] Roadway."

The record also reveals that a joint counterclaim was filed by Appellant and the Waggeners, "in the nature of a breach of contract" or "in the nature of specific performance." As best we can discern from the record, it appears that the joint counterclaim was brought in an effort to enforce an oral contract Mr. Waggener averred he had entered into with Mr. Harrison and which purportedly provided that the Harrisons agreed to abandon the Old Roadway if Mr. Waggener built the New Roadway. Mr. Waggener asserts he relied on this agreement with Mr. Harrison when he constructed the New Roadway. Thus, Appellant and the Waggeners requested the trial court determine that the Harrisons had an oral agreement with Mr. Waggener wherein they agreed to stop using the Old Roadway and, if indeed there was a prescriptive easement to use the Old Roadway, to abandon it in favor of the New Roadway.

A trial was held on July 17, 2006. Ruth Harrison ("Mrs. Harrison") described the Old Roadway as composed of gravel; it was the "only way in and out;" and "it had been in existence since the early 1930's." She stated she did not think they had to ask permission to use it because "everyone used it." She also related that the Tomlinsons would sometimes have the road graded and they paid the Tomlinsons for a portion of the bill for the grading. She stated they also brought in rock to fill in portions of the road that had washed out. Mrs. Harrison related there was a fifteen foot section of the Old Roadway that was steep, but after the hill "it levels off and is a nice grade the rest of the way up." She also related that at the time she and Mr. Harrison purchased their property they utilized the Old Roadway to access the county road."³ She also admitted that while they did not have a legal instrument or any kind of documentation expressly permitting them to use the Old Roadway, nevertheless, from 1985 until the New Roadway was constructed in 2000, they used the Old Roadway to ingress and egress their property. She also related that none of the property owners had ever "voice[d] any displeasure with [the Harrisons'] use of the [O]ld [R]oadway."

Mrs. Harrison also testified that in 1999 she had overheard a part of a conversation between her husband and Mr. Waggener about paving the Old Roadway. She related Mr. Waggener asked Mr. Harrison, "`Would it be okay if I paved [the Old Roadway]?'" and Mr. Harrison responded, "`It's your property. You can concrete the whole thing if you wanted, as long as you leave that road down in front of the houses.'" According to Mrs. Harrison, in 1999 or 2000 Mr. Waggener paved the Old Roadway and altered its path across what is now Appellant's property, thus, creating the New Roadway. Mrs. Harrison also testified that after the New Roadway was constructed, Mr. Waggener came to her house with a $30,190.00 bill for the construction of the road and told her he "would appreciate anything [she] c[ould] give [him] . . ." towards the bill. The Harrisons told Mr. Waggener they were not going to contribute to the building of the New Roadway.

Mrs. Harrison also related she first learned from a neighbor in February of 2002 about Appellant's plans to block the Old Roadway by building a deck over a portion of the roadway. She stated she called Appellant on several occasions and left a message but he never called her back. Mrs. Harrison stated that when Mr. Harrison finally spoke with Appellant, Appellant told the Harrisons he would "think about" his plans for the Old Roadway. According to Mrs. Harrison, Appellant later phoned them and said, "`Go to hell. I'm going to do whatever I damn please.'" She recounted that Appellant thereafter constructed a deck across the Old Roadway, which forced the Harrisons to solely use the New Roadway for ingress and egress. Mrs. Harrison stated she never agreed to exclusively use the New Roadway and never agreed to stop using the Old Roadway. She related that the New Roadway, which is concrete, does allow access to their property, but she does not like to use it. She testified that, if given a choice, she would prefer to use the Old Roadway because the New Roadway is "very steep" and "very dangerous." She stated Appellant should be forced to remove the deck over the Old Roadway because the Old Roadway had always been safely traversed and the New Roadway is not safe.

Mr. Harrison testified that since their purchase of the lake house in 1985 the only way to access the property was via the Old Roadway. Mr. Harrison stated he never agreed to use the New Roadway instead of the Old Roadway. He repeated that he told Mr. Waggener that he could "put concrete anywhere [he wanted] to" "on his property" as long as he did not interfere with the Old Roadway's usage. He went on to state he told Appellant and Mr. Waggener that he had no intention of using the New Roadway and was going to continue using the Old Roadway.

Mr. Waggener testified he purchased his property in 1975. He stated that the Old Roadway on his property was in a slightly different location at that time and that when he built his home he changed the location of the road. He stated that as long as he had lived there the Harrisons and their predecessors in interest, the Baughmans, used the Old Roadway for ingress and egress. Mr. Waggener also related the Harrisons had been continuously using the Old Roadway from 1985 until 2001 or 2002. He stated he made the New Roadway in 1999, at which time he also owned Appellant's property. He testified that prior to constructing the New Roadway he had a conversation with Mr. Harrison about the Old Roadway. He related he asked Mr. Harrison "[i]f [he] put [the New Roadway] in . . . if [Mr. Harrison] would use it, and then [Mr. Waggener] could do away with the [Old Roadway]. . . . Because [he] was thinking about building a house, and [he] wanted...