Johnston v. Bates

• Decision Date: 25 July 1989
• Docket Number: No. 54464,54464
• Citation: 778 S.W.2d 357
• Parties: Arch and Marylin JOHNSTON, Plaintiffs/Respondents, v. Paul and Opal BATES, Defendants/Appellants.
• Court: Missouri Court of Appeals

Page 357

778 S.W.2d 357

Arch and Marylin JOHNSTON, Plaintiffs/Respondents, v. Paul and Opal BATES, Defendants/Appellants.

No. 54464.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 25, 1989.

John D. Rayfield, Crystal City, for defendants/appellants.

Daniel B. Hollingsworth, II, Patricia A. Riehl, Hillsboro, for plaintiffs/respondents.

SATZ, Judge.

In this case, the trial court found plaintiffs (Arch and Marylin Johnston) have an easement by prescription over land owned by defendants (Paul and Opal Bates). Defendants appeal. We affirm.

Based upon our understanding of the exhibits and testimony, the area in question is shown by the following schematic drawing.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1952, Maurice and Margaret McClain (grantors) owned a large tract of land in Jefferson County, Missouri. ¹ They platted part of the land as an eight lot subdivision. In 1953, defendants bought two of those lots. They bought three more in 1961. That same year, grantors hired Mr. Johnston to excavate, grade and gravel two roads, Ridge View Drive, on the east border of the subdivision and Terrace Drive, on the north border. Between that time and July 22, 1970, defendants acquired the remaining three lots in the subdivision. Grantors continued to own land north and east of the two platted roads.

In 1971, grantors sold a 75.84 acre tract located north of the subdivision to Mitchell Campbell (Campbell). Grantors retained a 14.5 acre tract between the 75 acre tract and the subdivision. The deed to the 75 acre tract granted Campbell "an easement of ingress and egress over, along and across an existing 40' roadway running from the south line of the above described real estate southwardly to State Highway 'A', together with the right to repair and maintain the same." From the record, it appears the "roadway" referred to a combination of Ridge View Drive, running north and south along the east border of the subdivision, and Ridge Drive, which continues northward from the north side of east-west Terrace Drive to the southern boundary of the 75 acre tract.

In 1974, plaintiffs purchased from grantors the 14.5 acre tract located between the subdivision and Campbell's 75 acre tract. The conveyance excluded a 1.22 acre tract which was reserved to the grantors. Ridge Drive bisects this 1.22 acre tract.

On June 13, 1979, defendants purchased the 1.22 acre tract from grantors. The following September, the grantors "transferred" their "interest" in Ridge View and Terrace Drives to defendants by a quit claim deed. Then in 1984, plaintiffs purchased the 75 acre tract from Campbell's estate. The deed memorializing this purchase was made "subject to any Easements ... of record, if any." By a separate quit claim deed, the executor of Campbell's estate conveyed "[a]n easement of ingress and egress, along and across a 40' roadway running from the south line of [the] 75.84 acre tract, ..., southwardly to State Highway 'A',...."

Thus, at the time of trial, defendants held title to the subdivision, Ridge View and Terrace Drives and a 1.22 acre tract north of Terrace Drive which was bisected by Ridge Drive, and plaintiffs held title to the 14.5 acre tract north of the subdivision and to the 75 acre tract north of this 14.5 acre tract. Defendants' 1.22 acre tract was surrounded and enclosed by plaintiffs' 14.5 acre tract. The trial court found that plaintiffs had a prescriptive easement along Ridge Drive and Ridge View Drive for access from the 75 acre tract, purchased from Campbell's estate, to Highway A. Defendants' appeal, contesting this easement, followed.

A prescriptive easement is created by (1) an adverse use, (2) that is continuous and uninterrupted, (3) for the period of prescription. Cramer v. Jenkins, 399 S.W.2d 15, 17 (Mo.1966); Hodges v. Lambeth, 731 S.W.2d 880, 882 (Mo.App.1987). Restatement of Property § 457 (1944). The period of prescription in Missouri is ten years. § 516.110 RSMo.1986; Fenster v. Hyken, 759 S.W.2d 869, 870 (Mo.App.1988). That period can be reached by a single continuous, uninterrupted adverse use for ten years or more or by "tacking" together several of such uses, each of which may be less than the ten years but their total amounting to ten years or more. Hodges v. Lambeth, supra at 882.

Adverse use is a more complex concept. A use is adverse to the owner of the interest in land when it is (1) "not made in subordination" to the owner, (2) "wrongful or may be made by [the owner] wrongful, as to him", and (3) "open and notorious." Restatement of Property § 58 (1944); Cramer v. Jenkins, 399 S.W.2d 15, 17(Mo.1966). To be adverse, it is only necessary for the use to proceed without recognition of the owner's authority to permit or prohibit the use; it is not necessary that the user intend to violate the owner's rights. Fenster v. Hyken, supra, 759 S.W.2d at 870; McIlroy v. Hamilton, 539 S.W.2d 669, 673 (Mo.App.1976). Conversely, if the use is permissive, it cannot ripen into a prescriptive use. See, e.g., Powell, Real Property § 413, p. 34-114 (1987).

While the user need not intend to violate the owner's rights, his use must be open and notorious. Fenster v. Hyken, supra at 870. This assures the potential servient owner reasonable notice of the need to protect himself against the effect of the use. See, Auxier v. Holmes, 605 S.W.2d 804, 809 (Mo.App.1980); Restatement of Property § 458; comment h. The notice, however, "can be constructive or implied" from circumstantial evidence. Auxier at 810. Circumstantial evidence, also, is often used to show the use has not been made in subordination to the rights of the servient owner. Thus, proof of use of another's land normally justifies a presumption that the use has been adverse until this presumption is rebutted by other evidence. Gill Grain Co. v. Poos, 707 S.W.2d 434, 437 (Mo.App.1986); Parker v. Rogers, 698 S.W.2d 617, 618 [4, 5] (Mo.App.1985).

By tacking plaintiffs' use to the use of Campbell, plaintiffs' predecessor in title, the trial court found that plaintiffs showed a continuous, uninterrupted use of the roadways in question for the prescriptive period. The combined use, the court said, raised a "presumption that the use was adverse and under a claim of right." This shifted the burden to defendants, the court said, "to show ... the use was permissive in nature or by virtue of some agreement contrary to the right." Defendants, the court concluded, failed to meet this burden.

There is sufficient evidence to support the Court's findings. When the grantors conveyed the 75 acre tract to Campbell, the deed contained the grant of "an easement of ingress and egress over, along and across an existing 40' roadway running from the south line of the above described real estate southwardly to State Highway 'A', together with the right to repair and maintain the same." The basis for grantors' power to grant the easement presumably came from the language of the deeds to the subdivision lots. Those deeds dedicated an easement in the roads to the lot owners and reserved to grantors the right to "convey to others the right to use the [roads] for road purposes." However, in 1971, when Campbell purchased the 75 acre tract, grantors no longer owned any of the lots in the McClain's Ridge View Subdivision; by then, defendants had acquired all eight lots. When defendants purchased the last lot in the subdivision, title was merged in them, extinguishing any easements existing to benefit the individual lots. Denning v. Manley, 610 S.W.2d 51 (Mo.App.1980); Ball v. Gross, 565 S.W.2d 685 (Mo.App.1978).

Thus, at the time grantors attempted to grant Campbell a roadway easement, they retained no interest in the property composing the subdivision and no right to grant an easement on that property. Their conveyance of the easement was legally ineffective. Campbell's use of the easement, made on the assumption the conveyance of the easement was effective, was a use made under a claim of right, not in subordination to the defendants, the owners of the servient estate. Powell, Real Property, § 413, p. 34-113 (1987). See also, Majors v. Bush, 356 Mo. 17, 200 S.W.2d 892, 895 (1947). Campbell need not have intended to violate defendant's rights, it was only necessary that he proceeded to use the easement without recognizing defendants' authority to permit or prohibit the use. Fenster v. Hyken, 759 S.W.2d 869, 870 (Mo.App.1988); McIlroy v. Hamilton, 539 S.W.2d 669, 673 (Mo.App.1976).

Defendants, however, contend plaintiffs did not show Campbell's use was open and notorious. Defendants acknowledge a cable was placed across one of the roads, apparently Ridge View Drive, for a period of eight or nine years. But, defendants argue there was no showing "when the cable was set", and, defendants argue, the evidence showed "the use of the cable was to benefit all the owners." In addition, defendants argue, the evidence showed "at most, [that] the Respondents ² used some of the roads ... eight to ten times per year and the use was mostly for deer hunting." Defendants select only part of the evidence and view that selection most favorably to them. Their argument, based upon this narrowly selected and improperly viewed evidence, is not persuasive.

In this court tried case, we defer to the implicit determination of credibility made by the trial court, view the evidence and permissible inferences most favorably to the judgment and disregard all contrary evidence and inferences. See, e.g. Snowden v. Gaynor, 710 S.W.2d 481, 483 (Mo.App.1986). Defendants did not offer any evidence. Plaintiff Mr. Johnston and another witness testified on behalf of plaintiffs. Admittedly, the record is not a model of precision, but defendants had ample opportunity to cross-examine the witnesses.

During Mr. Johnston's testimony, defendants objected to him testifying about Campbell's use of the roads which Mr. Johnston did not personally observe or know about. These...