Hirsch v. Ebinger, ED 94432.

• Decision Date: 08 March 2011
• Docket Number: No. ED 94432.,ED 94432.
• Parties: Benjamin HIRSCH and Jessie R. Hirsch, Plaintiffs/Appellants,v.Thomas EBINGER and Ruth Ebinger, Defendants/Respondents.
• Court: Missouri Court of Appeals

334 S.W.3d 695

Benjamin HIRSCH and Jessie R. Hirsch, Plaintiffs/Appellants,
v.
Thomas EBINGER and Ruth Ebinger, Defendants/Respondents.

No. ED 94432.

Missouri Court of Appeals, Eastern District, Division Five.

March 8, 2011.

[334 S.W.3d 697]

Matthew A. Schroeder, Union, MO, for appellants.Daniel M. Buescher, Washington, MO, for respondents.GARY M. GAERTNER, JR., Presiding Judge.

Introduction

Plaintiffs, Benjamin Hirsch and Jessie R. Hirsch, appeal from the judgment entered for defendants, Thomas Ebinger and Ruth Ebinger, on plaintiffs' action requesting a prescriptive easement. We affirm.

Background

On April 15, 2005, plaintiffs filed their original petition. Plaintiffs filed their first amended petition on April 16, 2008. Plaintiffs alleged that they owned real property in Franklin County. Plaintiffs further alleged they had access to their property over defendants' property, “whereby they would travel over Log Cabin Road as well as an existing gravel driveway.” Plaintiffs also alleged that sometime during 2004 defendants constructed a horse barn across the existing gravel driveway cutting off access, ingress and egress to plaintiffs' property. In addition, plaintiffs alleged that they and their predecessors in title had used the roadway “adverse to all other under a claim of right, hostile, open and notorious, and for a continuous and uninterrupted term of more than forty (40) years.” Plaintiffs requested an order for a prescriptive easement and that defendants “remove” their barn.

At trial, five witnesses testified for plaintiffs and four witnesses testified for defendants. Thereafter, the trial court entered judgment for defendants. Plaintiffs filed a motion for reconsideration or new trial which the trial court denied. Plaintiffs appeal.

Discussion

In a court-tried case, the judgment will be affirmed if there is substantial evidence to support it, it is not against the weight of the evidence, and it does not erroneously declare or apply the law. MC Dev. Co. v. Central R–3 School Dist. of St. Francois County, 299 S.W.3d 600, 602 (Mo. banc 2009). An appellate court gives great deference to the trial court's resolution of conflicts in evidence. Id. “When determining the sufficiency of the evidence, an appellate court will accept as true the evidence and inferences from the evidence that are favorable to the trial court's decree and disregard all contrary evidence.” Watson v. Mense, 298 S.W.3d 521, 526 (Mo. banc 2009). Further, an appellate court gives due regard to the trial court's opportunity to have judged the credibility of the witnesses. Rule 84.13(d)(2); MC Dev. Co., 299 S.W.3d at 602. A trial court is free to believe or disbelieve all, part or none of the testimony by any witness. Watson, 298 S.W.3d at 525.

We will affirm the trial court's judgment on any basis supported by the record. Reagan v. County of St. Louis, 211 S.W.3d 104, 107 (Mo.App. E.D.2006). In addition, the trial court in this case did not issue findings of fact and the record does not indicate that the parties requested findings. Pursuant to Rule 73.01, “all fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” See Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 870 (Mo.App. E.D.2004).

In their sole point on appeal, plaintiffs argue that the trial court's judgment is against the weight of the evidence, is not supported by substantial evidence and erroneously applies the law. Plaintiffs contend that there was clear and convincing

[334 S.W.3d 698]

evidence presented at trial that showed they were entitled to a prescriptive easement because their use of the “lane” was adverse, continuous, visible and uninterrupted from 1965 until they filed their original action, April 2005. Plaintiffs further contend that they used...