Jenkins v. German

• Decision Date: 05 February 1957
• Docket Number: No. 29472,29472
• Citation: 298 S.W.2d 486
• Parties: Eugenia JENKINS, Kenneth Jenkins, and Willie Jenkins (Plaintiffs), Respondents, v. J. B. GERMAN and Robert Lawrence (Defendants), Appellants.
• Court: Missouri Court of Appeals

Page 486

298 S.W.2d 486

Eugenia JENKINS, Kenneth Jenkins, and Willie Jenkins (Plaintiffs), Respondents, v. J. B. GERMAN and Robert Lawrence (Defendants), Appellants.

No. 29472.

St. Louis Court of Appeals, Missouri.

Feb. 5, 1957.

Ward & Reeves, Caruthersville, for appellants.

Blanton & Blanton, Sikeston, and Robert Gowen, Ferguson, for respondents.

MATTHES, Judge.

In this action plaintiffs seek to restrain and enjoin defendants from obstructing a road in Pemiscot County, Missouri, and from interfering with plaintiffs in repairing and passing over the same. The venue was changed to the Cape Girardeau Court of Common Pleas. Following trial the court found that plaintiffs had access to the road, which was described as being 15 feet on each side of the center line, a detailed description of which appears in the judgment, and the defendants were perpetually enjoined from obstructing or interfering with plaintiffs and others in repairing and using the roadway. The decree also directed the defendants to remove all obstructions placed by them thereon. Defendants have appealed.

The specific purpose of this action is not to establish a roadway or an easement therein, but to prevent interference with the use of a roadway allegedly in existence. In this situation title to real estate is not directly involved, and jurisdiction is in this court. Bridle Trail Association v. O'Shanick, Mo.App., 290 S.W.2d 401; Lozier v. Bultman, Mo.App., 286 S.W.2d 43; Robbins v. Anderson, Mo.App., 274 S.W.2d 809; Burnett v. Sladek, Mo.App., 251 S.W.2d 397.

The amended petition upon which the case was tried designated the way in question as the Racetrack Road, and alleged that it passed through or between the properties of defendants, German and Lawrence; that it extended from a public road on the east in a westwardly direction and terminated at another public road on the west adjacent to property owned by plaintiffs; that for a time in excess of the period of limitations plaintiffs had used the roadway under a claim of right, in defiance of defendants' title, and the use had been open, continuous, adverse, and hostile to defendants and their predecessors in title; that as the result of such use plaintiffs owned or possessed an easement over Racetrack Road and the right to use the same by prescription. It was also averred that by virtue of continuous use by the public for a period in excess of 10 years, and the expenditure of public funds thereon by Pemiscot County, Missouri, for such period, Racetrack Road was a public road. There is an allegation that defendants erected fences across the road in October, 1951, which constituted an unlawful obstruction thereof. The court made no finding or declaration as to the character or status of Racetrack Road, i. e., whether it was a private or public thoroughfare, but, as stated, simply found plaintiffs had the right to use it and enjoined defendants from interference with such use.

From the record it appears that Racetrack Road extends in an east and west direction. We are favored with a plat prepared by an engineer on behalf of defendants, drawn to scale, which shows that its total distance is approximately 2,625 feet. The east end thereof intersects with a north and south thoroughfare described as the Cooter County Road. From its intersection with the latter, Racetrack Road proceeds westwardly along the north boundary line of defendant Lawrence's property and the south boundary line of defendant German's property. It crosses a bayou and terminates at another north and south road, and approximately 50 feet south of the entrance to plaintiffs' property, which is immediately west of and adjacent to the lastmentioned north and south road. Thus we have a situation involving an east and west road extending between two north and south roads. Subsequent to the placing of the obstructions on the roadway which gave rise to this litigation, the State of Missouri acquired the right of way for new U. S. Highway 61, which traverses in a northeast and southwest direction the property of defendant German and Racetrack Road near the western terminus thereof. At the time of the trial of this case in April, 1955, new U. S. Highway 61 was under construction. Other pertinent facts concerning the road and the use made thereof by plaintiffs and members of the public will be observed as points presented to us are considered.

For their first point defendants urge that it was not shown by adequate proof that Racetrack Road had been used by the public continuously for a period of 10 years, and that public money or labor had been expended thereon for such period. The defendants reason that in the absence of such proof there can be no basis for holding that the way in question is a public road within the meaning of the statute. Conversely, plaintiffs contend the proof established the existence of both elements. In construing Section 228.190 RSMo 1949, V.A.M.S., the courts of this jurisdiction have consistently held that there must be proof, not only of continuous use for at least 10 years, but expenditure of public money or labor thereon for the same period of time. Sellers v. Swehla, Mo.App., 253 S.W.2d 847, reversed and remanded for another reason, 364 Mo. 285, 261 S.W.2d 26; State ex rel. McIntosh v. Haworth, Mo.App., 124 S.W.2d 653; George v. Crosno, Mo.App., 254 S.W.2d 30. Although public money or labor need not be constantly expended, expenditure of one or the other must have been commenced and continued from time to time for the period of limitation to the end that the road is kept in substantial repair and condition for public use and travel. State v. Kitchen, 205 Mo.App. 31, 216 S.W. 981; Sellers v. Swehla, supra, Mo.App., 253 S.W.2d 847, loc. cit. 851.

A painstaking consideration and analysis of the voluminous record reveals that while there was ample and substantial proof, as we shall later demonstrate, that the road was used by plaintiffs and their father, from whom they acquired title, and by the public, generally and continuously, for a period greatly in excess of 10 years, the evidence to establish the other essential element required by the statute is far from convincing. One witness testified he saw what appeared to be the county grader used on one occasion; another stated he had not seen any one dragging the road since 1929 or 1930; a former employee of the father of plaintiffs testified that at one time (the year not specified) four Negroes who were employed by Mr. Jenkins worked out their poll tax on the road; another witness testified that in 1932 he performed work upon the road for Scrap Chisim, the then road overseer. This same witness stated that in 1948 or 1949 he saw a road grader used 'on it', but was unable to state the name of the person who was operating the machine. Eugenia Jenkins, one of the plaintiffs, related circumstances indicating that in 1932, maintenance work was done by Scrap Chisim. Her two brothers, also plaintiffs herein, testified they saw the road being maintained in 1947, 1948, and 1949. Plaintiffs' evidence to establish expenditure of public funds or labor is insufficient in two respects. The labor performed was lacking in continuity, was too intermittent and entirely spasmodic. Proof that the road was repaired in 1929, in 1931, and 1932, and then again in 1947, 1948, and 1949, does not establish that labor or funds were used for a period of 10 consecutive years. Neither does the evidence disclose the work and labor performed was paid for by public funds. In fact, the defendants produced testimony much more conclusive, establishing that Pemiscot County furnished no funds or labor at any time. The county clerk and two former county judges testified to that effect, as did Clarence Funderbuck, who at one time was supervisor of all county roads. Another witness for defendants testified that in 1939 or 1940 he caused gravel to be placed on the road, not at the expense of the county but at the request of Mrs. Brooks, former owner of the property owned by defendant Lawrence. Since the proof does not bear out and sustain the contention that the road was maintained by public money or labor for a period of 10 consecutive years, it is not a county road 'legally established' in accordance with the statute.

For another point defendants contend the evidence was insufficient to sustain the decree on the theory that plaintiffs have an easement by prescription in the roadway in question. It is said that the plaintiffs did not sustain the burden of showing that a particular 'road route' was used by plaintiffs for a particular ten-year period; and that in any event the use was not adverse.

In Roberts v. Quisenberry, 362 Mo. 404, 242 S.W.2d 26, 28, the Supreme Court made this pronouncement: "The four essential facts for the plaintiffs to prove in order to sustain their claim to an easement by prescription are, first, user for the prescribed period; second, that the user was adverse; third, that it was under a claim of right; fourth, notice to the owner of the user, and of its character and of the claims of right.' Anthony v. Kennard Building Co., 188 Mo. 704, 87 S.W. 921, 924; See also Faulkner v. Hook, 300 Mo. 135, 254 S.W. 48; 17 Am.Jur. 969, Sec. 56; 28 C.J.S., Easements, Sec. 18, page 662.' This rule was followed in Robbins v. Anderson, supra. It has also been...