Kohlleppel v. Owens, WD

• Decision Date: 02 March 1981
• Docket Number: No. WD,WD
• Parties: Benedict H. KOHLLEPPEL and Dorothy L. Kohlleppel, husband and wife, Appellants, v. H. Wayne OWENS and Ruth E. Owens, husband and wife, Respondents. 30825.
• Court: Missouri Court of Appeals

Page 168

613 S.W.2d 168

Benedict H. KOHLLEPPEL and Dorothy L. Kohlleppel, husband and wife, Appellants, v. H. Wayne OWENS and Ruth E. Owens, husband and wife, Respondents.

No. WD 30825.

Missouri Court of Appeals, Western District.

March 2, 1981.

Ronald M. Sokol, Kranitz & Kranitz, St. Joseph, for appellants.

Larry L. Zahnd, Glen A. Dietrich, Zahnd & Dietrich, Maryville, for respondents.

Before CLARK, P. J., DIXON and SOMERVILLE, JJ.

SOMERVILLE, Judge.

The origin of this appeal was a dispute between the Kohlleppels and the Owenses, adjoining landowners, as to their respective rights in a 1.58 acre triangular tract of land situate in the northwest corner of Kohlleppels' land in Nodaway County which was diagonally crossed by Mowry Creek.

The dispute erupted into litigation by the filing of a multi-count petition by Kohlleppels against the Owenses in early 1977. The multi-count petition may be generalized as variously asserting actions to quiet title, for ejectment, trespass and damages. The Owenses responded with an answer and a counterclaim. The latter may be generalized as seeking a declaration that the Owenses had an easement appurtenant in the 1.58 acre triangular tract of land for construction, maintenance and use of an "access road", a fence and drainage ditch ancillary thereto, and to "farm" the tip of the triangular tract of land which lay north and west of Mowry Creek.

Following a bench trial, a judgment, accompanied by exhaustive findings of fact and conclusions of law, was entered in favor of the Owenses and against the Kohlleppels on all counts of Kohlleppels' petition, and in favor of the Owenses and against the Kohlleppels on Owenses' counterclaim. An inclusive appeal was taken by Kohlleppels from the judgment.

The judgment rendered in favor of the Owenses on their counterclaim, in essence, ordered, adjudged and decreed that they were the "owners" of and "entitled" to an easement in the 1.58 acre triangular tract of land situate in the northwest corner of Kohlleppels' land, same being "appurtenant" to and "running" with Owenses' land, for (1) construction, maintenance and use of an "access road" on the southeast side of and parallel to Mowry Creek; for (2) construction and maintenance of a fence on the southeast side of and parallel to said "access road"; for (3) construction and maintenance of a drainage ditch between and parallel to said "access road" and fence and then running east at the north end thereof along the south side of the section line for a distance of approximately fifty (50) yards to the north end of a diversion terrace located on Kohlleppels' land; and (4) to "clear and farm" that portion of the 1.58 acre triangular tract of Kohlleppels' land lying north and west of Mowry Creek.

Kohlleppels concede in their brief that the scope of appellate review is circumscribed by Murphy v. Carron, 536 S.W.2d 30 32 (Mo.banc 1976): "(T)he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong."

Kohlleppels have condensed a broad spectrum of issues into four points. Due to the extended, complicated nature of the facts in which they are immersed, no attempt will be made to delineate the points relied on until an overview of the evidence, comportable with the findings of fact and judgment entered by the trial court, has been set forth.

Kohlleppels are record owners in fee simple of all of the North Three-fourths (N 3/4) of the West Half (West 1/2) of Section Twenty-one (21), Township Sixty-six (66) North (N), Range Thirty-four (34) West (W), Nodaway County, Missouri. They acquired title to said real property on December 22, 1971, by warranty deed from Gary and Betty Cline, husband and wife, who held title as tenants by the entirety. The Owenses are record owners in fee simple of all of the South Half (S 1/2) of the Southwest Quarter (SW 1/4) of Section Sixteen (16), Township Sixty-six (66) North (N), Range Thirty-four (34) West (W), Nodaway County, Missouri. They acquired title to said property on June 10, 1971, by warranty deed from Wayne Owens' parents, Dale and Doris Owens. The north line of Kohlleppels' land and the south line of Owenses' land are contiguous.

A public road runs north and south along the west side of both tracts of land. Prior to "the 1940's" a public, section line, road ran east and west between the two tracts of land. Mowry Creek runs diagonally across the Owenses' land from northeast to southwest, continues in that direction across the disputed 1.58 acre triangular tract situate in the northwest corner of Kohlleppels' land, and then goes under a bridge located on the north-south public road. Prior to "the 1940's" there was also a bridge across Mowry Creek on the east-west section line road which gave Dale and Doris Owens' predecessors in title access to that portion of the Owenses' land lying east of Mowry Creek. The bridge across Mowry Creek on the east-west section line road "washed out" prior to "the 1940's" and was never replaced. Consequently, the east-west section line road was abandoned, no longer maintained, and taken over by weeds and brush.

After the bridge across Mowry Creek on the east-west section line road "washed out", Dale and Doris Owens (parents of Wayne Owens), and their predecessors in title, acquired an appurtenant easement by prescription over what is now Kohlleppels' land, the Owens land being the dominant estate and the Kohlleppel land being the servient estate, for purposes of ingress and egress to that portion of the Owens land lying east of Mowry Creek. This appurtenant easement consisted of a well defined roadway which started on the west line of what is now the Kohlleppel land at a point approximately one quarter of a mile south of the Mowry Creek bridge on the north-south public road and then "meandered" in a northeasterly direction to a gate in a fence located on the section line between the Kohlleppel land and the Owens land. Use of this well defined roadway by Dale and Ruth Owens and their predecessors in title was open, visible, notorious, continuous, uninterrupted, adverse and under claim of right for a period of more than thirty (30) years prior to the summer of 1970.

In the summer of 1970 Dale Owens and Gary Cline informally met at or near the northwest corner of what is now the Kohlleppel land. In order to free the owner of what is now the Kohlleppel land from the inconvenience of having to farm around the meandering roadway the two orally agreed as follows: (1) the meandering road would be moved and relocated immediately southeast of and parallel to Mowry Creek by Dale Owens at his sole expense; (2) Dale Owens at his sole expense would construct and maintain a fence immediately southeast of and parallel to the newly constructed road in order to relieve Gary Cline of maintaining a water gap across Mowry Creek; (3) Dale Owens at his sole expense would construct and maintain a drainage ditch starting at the north end of a diversion terrace on what is now the Kohlleppel land, then running west approximately fifty (50) yards along the south side of the section line to the north end of the new road to be constructed, and then running in a southwesterly direction between the new road and the new fence to a grader ditch located on the east side of the north-south public road; and (4) if Dale Owens wanted to clear the brush and timber off of that portion of what is now the Kohlleppel land lying north and west of Mowry Creek he, Dale Owens, "could farm it". At the time Gary Cline farmed and managed what is now the Kohlleppel land on behalf of himself and his wife.

In the fall of 1970, Dale Owens, pursuant to the oral agreement mentioned above and at his expense, built the new road and fence, constructed the drainage ditch, and cleared and brush and timber off of the tip of land lying north and west of Mowry Creek and started farming it. The access road, as relocated, and the drainage ditch and fence ancillary thereto, were apparent upon an ordinary inspection of the premises when Kohlleppels purchased the land from Clines.

For many years the north end of what is now Kohlleppels' land was pocketed with marshy areas by reason of surface water problems. Notwithstanding Kohlleppels' contention to the contrary, this condition was the natural aftermath of abandonment of the old east-west section line road and was neither occasioned nor compounded by any act of commission or omission on the part of the Owenses. Moreover, it may be reasonably inferred that the oral agreement entered into between Dale Owens and Gary Cline, and performance thereunder by Dale Owens, did not contemplate total alleviation of all the surface water problems on the north end of what is now the Kohlleppel land.

The Owenses, after they acquired title to their land, maintained the new road, fence and drainage ditch constructed by Dale Owens, and farmed the tip of land in question, until September, 1976, when they received notice in writing from Kohlleppels to cease trespassing on their land. The Owenses honored the written notice, except for use of the access road as a necessary means of ingress and egress to that portion of their land lying east of Mowry Creek, pending judicial determination of the rights of the respective parties.

Although not included in the findings of fact made by the trial court, the record also discloses that the tip of Kohlleppels' land lying north and west of Mowry Creek was four-tenths (4/10) of an acre in size, which, after being cleared of brush and timber, had a reasonable cash rental value of $75.00 per acre...