Kirn v. Oehlert, 42915
| Decision Date | 08 December 1981 |
| Docket Number | No. 42915,42915 |
| Citation | 625 S.W.2d 921 |
| Parties | Wayne J. KIRN and Dianna M. Kirn, his wife, Plaintiffs-Respondents, v. Theodore R. OEHLERT and Ella L. Oehlert, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Alvin L. Tidlund, Kirkwood, for defendants-appellants.
Dennis C. Brewer, Perryville, for plaintiffs-respondents.
The Oehlerts, defendants below, appeal the court's finding of a prescriptive easement in favor of the plaintiffs. We affirm.
The present ownership of these respective tracts of property occurred as follows. In 1890, two brothers, Valentine and Ferdinand Hoehn inherited approximately 127 acres from their father. Valentine took possession of 70 acres and the family home. Ferdinand took the rest of the acreage upon which he built a home next to the roadway that crossed the two pieces of property. The roadway had been used continuously for seventy-eight years. In 1939, Valentine sold his property to the present owners, the Oehlerts. Upon Ferdinand's death in 1944, his daughter, Ella Lintner, bought his property from the other heirs. Ella and her husband Oscar never lived on the property but rented it to Oscar's cousin Julius Lintner and his wife Flora. Flora with her husband and daughter lived on the property for twenty-six years. They along with their friends used the road on a daily basis and never obtained permission to use the road. Nor did anyone ever attempt to stop them from using the road. When Flora moved from the property in 1970, her daughter Dianna, assumed rental of the property with her husband Wayne Kirn. The Kirns subsequently bought the property from Ella and Oscar Lintner in 1979.
In their brief on appeal, defendants raise five Points Relied On. Points one, two and three raise plaintiffs' failure to prove 1) use for the prescribed period 2) adverse use and 3) notice of user and of claim of right, respectively. Point four contends the verdict is against the weight of the evidence and point five alleges the evidence shows use of the roadway was by permission. Close scrutiny of defendants' arguments on these points reveals, however, that defendants' main contention is that the plaintiffs failed to prove adverse use. Thus our opinion will address defendants' Points Relied On by reviewing the evidence to determine whether there is substantial evidence to sustain the finding of a prescriptive easement in favor of plaintiffs with special regard to whether plaintiffs use was adverse or permissive.
It is well established that in order to obtain an easement by prescription, plaintiffs have the burden of proving that the use was open, adverse, visible, continuous and uninterrupted under a claim of right for ten years or more. Spooner v. Bates, 550 S.W.2d 200, 202 (Mo.App.1977). Proof of open, notorious, continuous, and uninterrupted use for the requisite ten year period, however, in absence of evidence to explain how use began, raises the presumption that the use was adverse and under a claim of right. McIlroy v. Hamilton, 539 S.W.2d 669, 673 (Mo.App.1976). This casts upon the owner of the servient estate the burden of showing that the use was permissive and by virtue of some license, indulgence or agreement inconsistent with the claim of right. McIlroy, supra.
With no evidence available to explain how the use began, the plaintiffs proved open, notorious, continuous and uninterrupted use and placed the burden of showing that the use was permissive upon the defendants. The plaintiffs introduced evidence that the origin of the roadway was beyond the memory of both Leonard Hoehn and Ella Lintner, 77, and 80 years old respectively. Ella Lintner testified that it was once a thoroughfare connecting two county roads and was used to reach the Friedenburg Church. The road was referred to as the "Church Lane" and was defined by fences. The defendant, Theodore Oehlert, conceded that the roadway has been used continuously for seventy-eight years. The use of the roadway by the plaintiffs and their predecessors was open and visible as the roadway passed within fifteen feet of de...
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Brewer v. United States, S 80-73C.
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