Homan v. Hutchison, No. WD

• Decision Date: 05 November 1991
• Docket Number: No. WD
• Citation: 817 S.W.2d 944
• Parties: Ray S. HOMAN, Olive L. Homan and Jimmie R. Homan, Appellants, v. Thomas L. HUTCHISON and Mildred Hutchison, Respondents. 43830.
• Court: Missouri Court of Appeals

Page 944

817 S.W.2d 944

Ray S. HOMAN, Olive L. Homan and Jimmie R. Homan, Appellants, v. Thomas L. HUTCHISON and Mildred Hutchison, Respondents.

No. WD 43830.

Missouri Court of Appeals,

Western District.

Nov. 5, 1991.

John T. Key, California, for appellants,

Douglas Abele, Boonville, for respondents.

Before TURNAGE, P.J., and KENNEDY and BRECKENRIDGE, JJ.

BRECKENRIDGE, Judge.

Ray S. Homan, Olive L. Homan and Jimmie R. Homan appeal from a judgment denying declaratory relief on their claim of a prescriptive road easement and awarding damages against Jimmie R. Homan for physical damage to personal property. The Homans present five points on appeal, claiming the trial court erred by: (1) holding that a prescriptive easement was not established across the Hutchison land by their predecessors in title; (2) ruling that a 1922 deed of the roadway conveyed fee title and not an easement where no ambiguity in the title existed and extrinsic evidence was improperly considered; (3) holding that appellants' usage of the road was not adverse, but permissive in nature; (4) holding that Jimmie Homan's use was not adverse, but permissive in nature; and (5) awarding damages to the Hutchisons for damages to gates placed across the road. The judgment of the trial court is affirmed.

The Homans and the Hutchisons own adjoining parcels of real estate in Moniteau County, Missouri. The land was originally owned by the Thixton family. The Thixton family cemetery, with graves dating back to the Civil War, is located on this property. In 1922, Henry and Geneva Thixton, who then owned the Hutchison tract, conveyed property to the Thixton Cemetery Association. The legal description in the warranty deed described the property conveyed as follows:

And which is to be used as a private cemetery exclusively: Beginning at a point 24 3/4 feet East from the Southwest corner of the Northwest quarter of the Northwest quarter of Section 26, Township 44, Range 17, thence East 38 1/2 rods; thence North 5 rods, thence West 38 1/2 rods, thence South 5 rods to place of beginning, being a parcel of land 5 rods wide by 38 1/2 rods long.

Also a strip of land 24 3/4 feet wide off of the West side of said Northwest quarter of the Northwest quarter of said Section 26. Said strip of land to be used as a private road to the above mentioned cemetery.

Sometime in the late 1930's or early 1940's, a rough roadway was established on this strip. This roadway has been used for access to the cemetery and is commonly referred to as the "Thixton Cemetery" road. In subsequent conveyances and other legal documents, the totality of the property deeded to the cemetery association was excepted from the descriptions of real estate being conveyed or encumbered.

In 1958, Ray and Olive Homan purchased real estate described as the "SE 1/4, NE 1/4 Sec. 27 and SW 1/4, NW 1/4, Sec. 26, all in T44N, R17W, Moniteau County, Missouri." Prior to this purchase, Ray Homan spoke with Elmer Thixton and Zora Charles, trustees and officers of the Thixton Cemetery Association, and received permission to use the roadway. He also testified that he believed that the road was a public road. Appellants utilized the roadway after said permission was given on a daily basis.

In 1963, the Hutchisons purchased real estate adjoining the Homan land, described as the "NW 1/4, NW 1/4, Sec. 26, T44N, R17W, Moniteau County, Missouri." The deed contained the following exception: "except a tract in the Southwest corner thereof for cemetery, and except a strip 24 3/4 feet wide off the West side thereof for road."

In 1969, Jimmie Homan purchased the "E 1/2, NE 1/4, NE 1/4, Sec. 27, T44N, R17W, Moniteau County, Missouri." He testified both at trial and by deposition that he claims the "same right that his father claims." Both the property owned by Jimmie Homan and the property owned by Ray and Olive Homan have other means of access; the cemetery roadway has never been the sole means of access.

In September, 1988, the Thixton Cemetery Association, by quit claim deed, conveyed to the Hutchisons its interest in the cemetery road strip and a portion of the adjoining property that had not been used for cemetery purposes. At the time of the purchase, the Hutchisons agreed to grant the Thixton Cemetery Association an easement to use the cemetery road. This agreement was reduced to writing in July, 1989.

In October, 1988, the Hutchisons erected a gate across the road, the first of four gates. The gate was not locked and the Homans were not denied access to the road. They were asked, however, to shut the gate upon leaving. Not only was the gate left open by the Homans, Jimmie Homan treated the first gate so roughly it had to be replaced. The second and third gates were also damaged by the actions of Jimmie Homan.

The Homans filed suit against the Hutchisons, asking the court to declare that the Homans had an easement in the cemetery road and that the Hutchisons be enjoined from obstructing the road. The Hutchisons counterclaimed, asking for damages for the harm done to the gates. Trial on the matter was had on May 1, 1990.

The trial court entered judgment in favor of the Hutchisons on both the Homans' claim and on the counterclaim. The court found that the original conveyance to the Thixton Cemetery Association was in fee simple and that the Homans' use of the road had been permissive, and not adverse. The court further found that Jimmie Homan knowingly caused damage to the gates erected by the Hutchisons and awarded $100.00 in damages on the counterclaim. The Homans appeal from this judgment.

In Point I, the Homans claim that the trial court erred in holding that no prescriptive easement was established by Ray and Olive Homan's predecessors in title, because the evidence demonstrated open and continuous use from as early as 1876 and the trial court failed to apply the legal presumption of adverse use.

Review of this court-tried case is performed pursuant to Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The decision of the trial court will be upheld unless there is no substantial evidence to support it, it is against the weight of the evidence or unless it erroneously declares or applies the law. Id. at 32. Deference is given to the implicit determination of credibility made by the trial court and the evidence and all permissible inferences therefrom are viewed in the light most favorable to the verdict. Johnston v. Bates, 778 S.W.2d 357, 363 (Mo.App.1989).

The elements essential to the creation of a prescriptive easement are that the use of certain property be: (1) continuous and uninterrupted for the period of prescription; (2) adverse; (3) under a claim of right; and (4) with notice to the owner of the use and the claim of right. Roberts v. Quisenberry, 362 Mo. 404, 242 S.W.2d 26, 28 (1951). The period of prescription in Missouri, under § 516.110, RSMo 1986, is ten years. The ten-year period of prescription can be created by the tacking together of successive owners' periods of continuous, uninterrupted, adverse use, each of which may be less than ten years but with their total amounting to ten years or more. Johnston v. Bates, 778 S.W.2d at 361. A use is not deemed to be adverse where the user recognizes the authority of those against whom the use is claimed to prevent or prohibit the use. Hodges v. Lambeth, 731 S.W.2d 880, 882 (Mo.App.1987). The law does not favor prescriptive easements, thus the requirements for their establishment must be proven by clear and convincing evidence. Gill Grain Co. v. Poos, 707 S.W.2d 434 (Mo.App.1986).

The Homans cite Speer v. Carr, 429 S.W.2d 266 (Mo.1968), for the proposition that a roadway of ancient unexplained origin gives rise to a presumption of usage adverse and under claim of right. In Speer, it was undisputed the roadway had been openly and continuously used for a period of forty to sixty years prior to the claim of prescriptive easement. Id. at 268. The Speer court set forth the following language from Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571, 572 (1942):

[I]n the absence of some showing that the use was permissive in its origin it is well settled that when one claims an easement by prescription and shows an open, continuous, visible, and uninterrupted use for the period of the 10-year statute of limitation, the burden is cast upon the landowner to show that the use was permissive, rather than adverse, if he claims it to have been so.

Speer v. Carr, 429 S.W.2d at 268. While it is true the presumption of adverse use will stand and suffice the claimant if not rebutted by evidence in contradiction, it is just as true that it will lose all force and vanish when the facts appear in the evidence to show permission. Bridle Trail Association v. O'Shanick, 290 S.W.2d 401, 406 (Mo.App.1956). If such facts appear, "the existence or nonexistence of adverse user must be determined from those facts just as if no presumption had ever been operative." Id. (citations omitted). Furthermore, a permissive use cannot ripen into a prescriptive use. Johnston, 778 S.W.2d at 362. A use which is permissive in origin remains permissive until a right hostile to the owner is distinctively and positively asserted and made known to him. Fassold, 166 S.W.2d at 572. Long and continued use alone will not ripen into a prescriptive easement. Bridle Trail Association, 290 S.W.2d at 405.

The Homans characterize the evidence as supporting an open and continuous usage from at least 1876 without indication of permissive usage. They maintain that a roadway existed in the same location as the Thixton cemetery road and that the roadway is shown on an 1876 land atlas. A review of the evidence, however, reveals that the roadway shown on the atlas was not located at the same spot as the Thixton cemetery road.

Earl Thixton, who lived on the property that now belongs to the Hutchisons from 1917 until 1933, testified that there had never been a roadway or passageway where the road in...