Huter v. Birk
| Decision Date | 13 May 1974 |
| Docket Number | No. 57627,No. 1,57627,1 |
| Citation | 510 S.W.2d 177 |
| Parties | Walter J. HUTER and Cora Huter, Respondents, v. Truman BIRK and Shirley Birk, Appellants |
| Court | Missouri Supreme Court |
Stephen E. Strom, Strom & Strom, Cape Girardeau, for respondents.
Albert C. Lowes, Buerkle, Buerkle & Lowes, Jackson, for appellants.
WELBORN, Commissioner.
Action arising out of dispute over the right of respondents to use a private road across land of appellants. By Count I of their petition respondents sought a decree declaring their title by prescription to a permanent easement for the unimpaired use of the road across the land of appellants. Trial of issues resulted in verdict for respondents. Respondents' petition also contained three other counts, to be discussed more fully below, on which they sought injunctive relief and damages. Trial to court of those issues resulted in injunctive relief in favor of respondents, but no monetary judgment was awarded. By notice of appeal filed prior to January 1, 1972, the appeal was lodged in this court.
This is the second appeal in this dispute. A judgment in favor of respondents at an earlier trial was reversed by this court because of error in submission of respondents' claim as based upon a way of necessity. Huter v. Birk, 439 S.W.2d 741 (Mo.1969).
The parties are owners of adjoining farms in Cape Girardeau County. Respondents' 156-acre farm lies to the west of appellants' farm of 253 acres. Respondents' farm is bounded on the west and largely on the south by Whitewater Creek. The road in question runs from a county road which ends at the east line of the appellants' farm. The road runs west across appellants' land a distance of approximately 1500 feet to a point near the northeast corner of respondents' farm. The road then turns south at an angle of near 90 and runs through appellants' land near and approximately parallel to the farm's irregular western line for approximately 1000 feet, where it crosses respondents' line and enters their property.
Both farms were owned by Strong in 1918, when he conveyed the 156 acres now owned by respondents to Zeller. The Zeller residence was some 500 to 600 feet south and west of the point where the road crossed into their land. There was also a residence on the portion retained by the Strongs. It was located near the road here in question, 500 to 600 feet to the north of the point where the road entered the Zeller land.
The Zellers occupied the residence on their land until 1949. Since then no one has lived there. The residence on the Strong property was occupied by tenants, beginning prior to 1920. The respondents, Huters, rented the Strong farm for about six years in the early 1950's. The appellants, Birks, rented the Zeller farm from 1951 to 1960.
In 1956, the Birks bought the farm they now own from the Strong heirs. They have lived on the farm since then. In 1960, the Huters bought the 156-acre farm they own from Zeller heirs.
There was evidence of some roads into the Zeller-Huter farm which had long since ceased to exist. The evidence showed clearly that occupants of that farm had used the road across the Strong-Birk farm at least as long as the two farms had been separately owned, or since around 1918. Mr. Huter testified that he had been familiar with the Zeller farm since around the time the Zellers bought it. He could recall having used the road to get to the Zeller farm since 1924 or 1925. He testified that there were no gates on the road until Mr. Birk erected one which precipitated this litigation. Other witnesses for plaintiffs who were familiar with the road and its use by the Zellers recalled that there was a gate across the road in the vicinity of the place where the road turned to the south, a point now known as the 'Huckstep Corner.' Plaintiffs' witnesses testified that the gate had not been there since the early 1930's. The defendants' evidence was generally to the same effect, insofar as the gate at the Huckstep Corner was concerned, although Mr. Birk 'thought' that when he went to the farm in 1941, he had to open a gate at the Huckstep Corner. All of the witnesses agreed that that gate had never been used to deny persons living on the Zeller farm the use of the road across the Strong farm.
There was conflicting evidence as to the presence of gates on the Strong farm, near the south end of the road. The evidence favorable to plaintiffs was that there was no gate in that area.
After he had bought the Strong farm and while he was still renting the Zeller farm, Mr. Birk had built a cattle guard across the road, not far from where it left the county road. Mr. Birk testified also that around 1958 he built a gate across the road near the south end, where it crossed the Zeller-Huter line. According to Birk, the gate was there when Huter visited the farm, looking into its purchase, around 1960. Huter denied that there was a gate at that location. Some time after Huter bought the Zeller farm, Birk did construct a cattle guard in that vicinity. That cattle guard fell into disrepair. Birk said that Huter was responsible for the damaged guard and he should replace it. Huter refused to do so and Birk erected a gate across the road at that point. That action precipitated the filing of this lawsuit in February, 1966.
The first contention on this appeal is that the trial court lacked jurisdiction to determine the controversy because of nonjoinder of indispensable parties. The basis of this contention is that the Hucksteps have a recorded interest in the road but were not made parties. This contention was presented to the trial court by motion to dismiss which was overruled.
In 1961, the Birks conveyed to the Hucksteps a tract from their farm, located to the north and west of the point where the road here in question turns south, hence the 'Huckstep Corner,' referred to earlier. The deed gave the Hucksteps the right to use the road from their corner to the county road, for all purposes, with the Hucksteps to bear one third of the cost of maintaining the road.
Appellants rely upon Rule 52.04(a), V.A.M.R., as it stood when this case was tried. A new Rule 52.04 became effective December 1, 1972 and is here applicable. Rule 41.06. The new rule clarifies the question of joinder of parties. In this case, the absence of the Hucksteps does not prevent complete relief being accorded in this litigation to the parties before the court and the adjudication in no manner affects the interest of the Hucksteps in their right to use the road. There was no allegation that anyone had tried to limit the Hucksteps' use of the road or that the Hucksteps had any quarrel with the Huters' use of the road. Therefore, there was no reason to join the Hucksteps and no error in the trial court's ruling.
Appellants' reliance upon Rule 93.03, on the theory that Count I was in the nature of a quiet title action, is of no assistance. The Hucksteps do not have of record a claim adverse to that of the Huters.
Appellants' second point relates to the failure of the trial court to grant a continuance because of the absence of the Hucksteps whom defendants sought to subpoena as witnesses.
The motion for continuance, filed June 30, 1971, the day of the trial, alleged that subpoenas for the Hucksteps had been issued June 24 and that a non-est return on June 28 had been discovered on June 29. The motion alleged that the Hucksteps would testify that plaintiffs had discussed with them coming through a portion of their property at the Huckstep Corner with a road that would enter and run southward on plaintiffs' land from such point. The motion alleged that such proposal indicated that the plaintiffs knew or believed that they had no right in the roadway, particularly from where it turned south at the Huckstep Corner. The motion also alleged that the witnesses would testify to their contribution to the upkeep of the road and to their lack of knowledge of any contribution on the part of the Huters.
The trial court did not abuse its discretion in overruling the motion. The record does not show clearly how long the case had been set for trial. However counsel for plaintiffs, in the course of the argument on the motion, stated that plaintiffs' witnesses had been subpoenaed a month in advance of the trial. Defense counsel stated that he had talked to the Hucksteps a month or two previously, but took no steps to subpoena them until a week before the trial. He later learned they were away on vacation. The testimony which defendants stated they proposed to obtain from the witnesses was of doubtful value and perhaps even of questionable admissibility, particularly as an admission against interest. On this record, the discretion exercised by the trial court should not be disturbed. The situation here is wholly dissimilar from that presented in Missouri Public Service Company v. Argenbright, 457 S.W.2d 777, 785(10), (11) (Mo.1970), where the court permitted a tardy amendment to the pleadings and then refused a continuance to permit the opposing party to consider and meet the changed issue.
Appellants next assert that their motion for a directed verdict at the close of all the evidence should have been sustained because the evidence failed to make a submissible case. The evidence on this trial was not appreciabley different from that at the prior trial. On the appeal in that case, this court found that the evidence did make a submissible case for plaintiffs. No good purpose would be served by again reviewing the evidence in detail. The holding on the prior appeal is determinative of the question in this case. Huter v. Birk, supra.
Appellants contend that they were deprived of their right to trial by jury on Counts II, III and IV of the action. Count II sought an injunction against defendants' interfering with plaintiffs' use of the road in controversy and...
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