Kerr v. Jennings
| Decision Date | 30 August 1994 |
| Docket Number | No. WD,WD |
| Citation | 886 S.W.2d 117 |
| Parties | Jerry J. KERR, et al., Appellants, v. Carl E. JENNINGS, et ux., Respondents. 47369. |
| Court | Missouri Court of Appeals |
Don R. Lolli, Kansas City, for appellants.
Elvin S. Douglas, Jr., Harrisonville, for respondents.
Before ULRICH, P.J., and BRECKENRIDGE and SPINDEN, JJ.
This appeal involves real estate owned by Jerry J. Kerr and Dea Daniels (the Kerrs) which is subject to a non-exclusive easement held by Carl E. and Mary Jennings (the Jenningses). The Kerrs filed a five-count petition against the Jenningses seeking a declaratory judgment, a permanent injunction actual, statutory and punitive damages for trespass and property damage. The Kerrs also filed a motion asking the trial court to find the Jenningses in contempt for allegedly violating a temporary restraining order and a preliminary injunction. After a hearing on the motion for contempt, the trial court granted the Kerrs' request for a declaratory judgment and entered a permanent injunction but did not award the Kerrs damages, declined to make its injunction permanent in all respects, and denied the motion for contempt. The Kerrs raise four points on appeal, contending that the trial court erred (1) in failing to award the Kerrs damages; (2) in failing to find the Jenningses in contempt for violating an April 17, 1992, preliminary injunction; (3) in failing to find the Jenningses in contempt for violating an August 14, 1991, temporary restraining order; and (4) in prohibiting the placement of gates at the entrance to and exit from the easement and in failing to make the provisions in its preliminary injunction regarding the placement of those gates permanent. The judgment of the trial court is affirmed.
The Kerrs and the Jenningses purchased adjoining tracts of land in Grandview, Missouri, from Sunrise Dairy Farms at an auction on December 19, 1987. Both the Kerrs and the Jenningses purchased two forty-acre lots. The four lots lie south of Missouri Highway 50, which runs east-west, and west of Kelly Road, a public road and north-south thoroughfare. The Kerrs' property is bounded on the east by Kelly Road. The two lots purchased by the Jenningses are landlocked and have access to Kelly Road only through an easement which bisects the two lots purchased by the Kerrs. All parties had knowledge of the easement prior to the sale.
On January 20, 1988, Sunrise Dairy Farms filed a Declaration of Easement providing that the easement begin at Kelly Road and run west, equally separating the Kerrs' two lots at a width of sixty feet, and then run further west across the northern part of the Jenningses' lots. See Appendix A. The Declaration creates a non-exclusive, perpetual easement for the purpose of pedestrian and vehicular ingress and egress to and from the respective tracts over the easement area and for the purpose of facilitating the installation, maintenance, and replacement of utilities for the tracts served by the easement. The Declaration also provides that "the owners of each of the tracts agree that except when necessitated by repairs or maintenance, neither shall block, obstruct, hinder or interfere with the easement area or the permitted traffic thereon."
When the Kerrs and the Jenningses first purchased their property, there was no actual roadway in existence over the easement. Rather, a fence (the "centerline fence") equally dividing the Kerrs' two tracts ran down the center of the easement. Vegetation, including trees and shrubs, grew along this east-west centerline fence.
In the spring of 1988, the Jenningses commenced the construction of a road on the easement between Kelly Road and their property. The Jenningses first created an entrance from Kelly Road by cutting a swath centered on the easement eighteen to twenty feet wide through the hedgerow which ran along the Kelly Road ditch. In creating the entrance Mr. Jennings removed ten to twelve elm, hedge, and hackberry trees, all within the easement.
The Jenningses next began grading a roadbed within the easement. They graded a fifteen-foot wide road primarily to the south of the centerline fence. Mr. Jennings, however, did remove part of the centerline fence.
On the west side of the Kerrs' property lie several ponds. The easement runs between one larger pond on the north and two smaller ponds to the south. A portion of the banks of the dams of these ponds are within the easement. Mr. Jennings testified that in constructing the roadway he removed only a small part of the dams which encroached upon the easement. Mr. Jennings also stated that he cleared and slightly enlarged a spillway/ditch south of the larger pond.
Beginning in the summer of 1988, the Kerrs allowed Allen M. "Bill" Galloway, as their tenant, to use both of the Kerrs' forty-acre lots for pasturing cattle, harvesting hay, and for other agricultural purposes. Mr. Galloway was the Kerrs' tenant from the summer of 1988 until the fall of 1991. He generally pastured his cattle on the property from the last of April or beginning of May until sometime in December of each year. Although Mr. Galloway had permission to use both of the Kerrs' lots, he primarily kept the cattle on the south forty-acre lot and used the north forty acres for hay. Because there was usually not enough water in the southern ponds during the summer months, though, Mr. Galloway had to move his cattle across the easement several times daily to water the cattle from the larger northern pond.
At the time that the parties purchased their lots, there was a wooden gate at the western end of the easement. Mr. Galloway replaced this wooden gate with a hinged metal gate in 1989. After creating the entrance from Kelly Road in 1988, Mr. Jennings installed a metal gate at the opening on the eastern end of the easement.
In 1989, Mr. Jennings removed the metal gate at the Kelly Road entrance and Mr. Galloway replaced it with another metal gate. From 1989 until 1991, the Kelly Road gate remained in place during the time Mr. Galloway pastured his cattle on the Kerrs' property. Mr. Galloway removed the gate when he took his cattle home in December of each year and reinstalled it each spring when he brought his cattle back to the Kerrs' lots.
There was evidence that Mr. Jennings may have removed the gates at both ends of the easement sometime in 1991. Mr. Galloway testified that Mr. Jennings admitted removing the gates in April or May of 1991.
On August 14, 1991, the Kerrs filed an application for a temporary restraining order seeking to enjoin the Jenningses from removing the gates at both ends of the easement. The Jenningses did not object to the request for a temporary restraining order and did not present any evidence at the August 14, 1991, hearing on the Kerrs' application. After the hearing, the trial court entered a temporary restraining order prohibiting the Jenningses from removing the gates.
Mr. Jennings testified that he removed the gate at the eastern end of the easement at the Kelly Road entrance in November of 1991 in order to allow construction vehicles to enter the easement and travel through to his property. According to Mr. Jennings, at the time he removed the gate there were no cattle on the Kerrs' property. The gate was down for approximately two weeks, after which time Mr. Jennings replaced the metal gate with a cable or wire gate.
The Jenningses eventually poured a concrete pad at the Kelly Road entrance onto the easement. Sometime before April of 1992, Mr. Jennings placed some rock and concrete along the easement roadway "to fill the low spot and level up the road."
After the Jenningses removed portions of the centerline fence, Mr. Galloway built a new fence running east to west on the Kerrs' land on the northern edge of the easement. Mr. Galloway also installed an electrical fence running east to west adjoining the southern edge of the easement.
The new fences on the northern and southern borders of the easement were allegedly removed and/or damaged at times, allowing Mr. Galloway's cattle access to areas where they were not wanted. The Kerrs and Mr. Galloway believed that Mr. Jennings was responsible for the removal and damage of these fences.
On March 24, 1992, the Kerrs filed a petition for a preliminary injunction in which they asked the court (a) to enjoin the Jenningses from placing more concrete and asphalt on the easement and order them to remove the existing asphalt and concrete; (b) to prohibit the Jenningses from enlarging the spillway/ditch and require them to fill the existing trench; (c) to enjoin the Jenningses from destroying electric fences on the Kerrs' property; (d) to order the Jenningses to reinstall the hinged gate on the east end of the easement, keep the gate closed and locked, and provide a key to the Kerrs; and (e) to enjoin the Jenningses from placing any additional material on the easement until a permanent injunction is heard. After a hearing on the petition, the court issued a preliminary injunction on April 17, 1992, 1 enjoining and prohibiting the Jenningses from engaging in the following activities:
1. Placing any more concrete, asphalt, stone or other rubble on the easement crossing [the Kerrs'] property. [The Jenningses] shall, within 30 days of the date of this Order, remove such concrete, asphalt, stone or other rubble from the easement ... or, in the alternative, [the Jenningses] shall cover such concrete, asphalt, stone or other rubble with sufficient dirt in such a manner as to prevent it from being a hazard to cattle crossing the easement....
2. [The Jenningses] shall, with [sic] 30 days of the date of this Order, place a culvert in the existing ditch along the south side of the easement and cover the culvert with dirt so that cattle may travel without hazard across the easement....
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