Kleeman v. Kingsley

• Decision Date: 04 November 2002
• Docket Number: No. 24527.,24527.
• Parties: B. Leon KLEEMAN and Glenda Kleeman, Plaintiffs-Respondents, v. Kiman J. KINGSLEY and Betty Darlene Kingsley, Kaleb M. Kingsley and Cindy Kingsley, Kaland W. Kingsley and Karen K. Kingsley, Kevin Kingsley, Gary Don Duvall, Frances Dee Duvall, Violet Ragan, and Louis Kleeman and Clea Kleeman, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 521

88 S.W.3d 521

B. Leon KLEEMAN and Glenda Kleeman, Plaintiffs-Respondents, v. Kiman J. KINGSLEY and Betty Darlene Kingsley, Kaleb M. Kingsley and Cindy Kingsley, Kaland W. Kingsley and Karen K. Kingsley, Kevin Kingsley, Gary Don Duvall, Frances Dee Duvall, Violet Ragan, and Louis Kleeman and Clea Kleeman, Defendants-Appellants.

No. 24527.

Missouri Court of Appeals, Southern District, Division Two.

November 4, 2002.

Richard L. Schnake, Neale & Newman, L.L.P., Springfield, Andrew J. Hager, Jr., Mt. Vernon, for appellants.

Randy J. Reichard, Lowther Johnson, LLC, Springfield, for respondents.

JOHN E. PARRISH, Judge.

Kiman J. Kingsley and Betty Darlene Kingsley, Kaleb M. Kingsley and Cindy Kingsley, Kaland W. Kingsley and Karen K. Kingsley, Kevin Kingsley, Gary Don Duvall, Frances Dee Duvall, Violet Ragan, and Louis Kleeman and Clea Kleeman (collectively referred to as "defendants") appeal a judgment that enjoins them from entering onto certain real estate and taking action on that real estate that would facilitate its use as a road. Defendants assert the trial court erred in declaring that the tract of real estate in question was not a public road and in denying a counter-petition they filed that sought to enjoin B. Leon Kleeman and Glenda Kleeman (plaintiffs) from obstructing defendants' use of the disputed tract of real estate as a road. This court reverses and remands for new trial.

Plaintiffs own certain real estate in Lawrence County, Missouri. Plaintiffs' land includes a disputed tract defendants claim to be a public road. The disputed tract varies in width from 39 feet at its northernmost end to 26 feet "farther South on the tract." The northernmost end of the tract abuts a road designated "County Road 2010."

This case was tried without a jury. Appellate review is, therefore, undertaken pursuant to Rule 84.13(d). The judgment will be affirmed unless there is no evidence to support it, the judgment is against the weight of the evidence, or the judgment erroneously declares or applies the law. Coale v. Hilles, 976 S.W.2d 61, 63 (Mo.App.1998). Fact issues on which no specific findings are made shall be considered as having been found in accordance with the result reached. Id.; Rule 73.01(c).

A judgment will be affirmed if it is correct under any reasonable theory supported by the evidence. Phillips v. Hoke Const., Inc., 834 S.W.2d 785, 789 (Mo.App.1992). A judgment will be reversed, however, if it is based on an erroneous application of law. Connor v. Bruce, 983 S.W.2d 625, 628 (Mo.App.1999).

Defendants contended at trial that the disputed tract was a public road by reason of implied or common law dedication.¹ A common law dedication requires proof that (1) the owner, by unequivocal action, intended to dedicate the land to public use;² (2) the land so dedicated was accepted by the public; and (3) the dedicated land is used by the public. Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 507-08 (Mo. banc 1993).

The trial court set out findings of fact and conclusions of law in its judgment, including:

This court cannot conclude from the evidence that there was a convincing and unequivocal dedication of the tract to the public. The tract was principally used for the benefit of the adjoining landowners and the use of their respective lands.

A second concurrent element of common law dedication is that the public by its act clearly take and accept the dedication and use the tract for public purpose for such a length of time as to show public acceptance of the offer implied by the act or acts of the dedicating landowners.

Many years previously the tract may have been used occasionally by the public although the evidence is not conclusive. Occasional use of the tract by hunters or other parties, as the evidence in this case indicates, is not such use as indicates the public clearly intended to take the tract as a public road. The landowners adjoining the tract in question may have cooperated in the use of the tract for their individual fanning convenience and purposes. The evidence disclosed that on some occasions an adjoining landowner would ask permission to improve the road to his property as in the case of Defendant Louis Kleeman. Other landowners would discuss the placing of gates, closing of cattle panels and travel along the tract. This evidence does not convince this court that the tract was used and accepted by the public at large.

Defendants present one point on appeal. They contend the trial court erred in three respects in determining the disputed tract was never established as a public road and in denying their petition to enjoin plaintiffs from obstructing the disputed tract to prevent their use of it as a road. Defendants first contend the trial court erroneously applied the law in concluding the disputed tract was not used by the public as a road but "was principally used for the benefit of the adjoining landowners and the use of their respective lands." Defendants argue "the adjoining landowners and those who visit their property are the public, and there was no objection to either the use of the road or the public maintenance of it."

Defendants' second contention is that the trial court erroneously declared the law in concluding the public had not accepted the disputed tract as a road and that the judgment was against the weight of the evidence in that there was public maintenance of the road; that public maintenance constitutes public acceptance. Their third assertion is that the trial court finding that there had not been public acceptance of the disputed tract as a road was against the weight of the evidence in that the trial court found the road had been used by hunters and others; that this was use by the public and constituted public acceptance.

The trial court inexplicably distinguished between the "public" and "adjoining landowners" for purposes of ascertaining whether the elements of a common law or implied dedication of the disputed tract had occurred. It found adjoining landowners had used the disputed tract and, occasionally, hunters and "other parties." It did not equate that use with use by the public. Defendants correctly point out in their argument to this court that adjoining landowners and others who occasionally visit the adjoining landowners property are "the public." See, e.g., Coffey v. State ex rel. County of Stone, 893 S.W.2d 843, 847 (Mo.App.1995). (Public use "was shown by evidence of regular use of the road by neighboring property owners and their representatives"; by testimony that "a lot of people go hunting back there.")

There was testimony by Verne Duvall that he had lived in the area where the disputed tract is located all his life. Mr. Duvall was 88 years old. He had grandparents and an uncle who had lived in the area during the 1920s and 1930s. He told the trial court his family and others used the disputed tract as a road. The road was used both by horses and buggies and by automobiles. He said a county road district maintained the tract using horses to "drag" the road and, later, using motorized equipment. According to Mr. Duvall, the road deteriorated in the 1940s after residents of the area moved away; however, the road continued to be used. He said the road deteriorated further in the 1950s, but the county continued to maintain part of it.

Mr. Duvall told the trial court he had always traveled the road for a half mile from the north; that he still traveled it. He recalled a conversation with plaintiff Leon Kleeman about putting a barricade across the road to keep cattle from going off Mr. Kleeman's property. Mr. Duvall said, "I told him that I wouldn't object to doing whatever he needed to, to maintain — to take care of his cattle, but I didn't want the road closed." Mr. Kleeman had not indicated that he wanted the barricade to be permanent.

Defendants Cindy Kingsley, Kaleb Kingsley, Darlene Kingsley and Kiman Kingsley told of using the disputed area as a road in the 1970s, 1980s and 1990s. Kaleb and Cindy Kingsley drove over the area in a "lime truck, ten-wheeler," in a pickup truck, and on a motorcycle during the 1990s. Cindy Kingsley and her grandmother used the road in the 1970s to travel to pick berries and walnuts. Kaleb and Kiman Kingsley and their father used it in the 1970s and 1980s. They went up and down the road in connection with their farming on real estate that lies south of the part of plaintiffs' land that is east of the disputed tract. In the 1990s, Kaleb Kingsley used it to go to and from property he previously farmed to brush hog once a year.

Charles Gulick lived on property in the area from about 1955 to 1965. He used the road. In the 1990s he used it to go hunting. He knew of other hunters who used it in the 1990s.

Terry Reynolds told the trial court he used the road to hunt in the 1990s. He said the last time he went "all the way through" was probably 1992 or 1993. He used it as a "parking road" in 1...