Lay v. Cunningham

• Docket Number: ED 111508
• Decision Date: 16 April 2024
• Citation: 688 S.W.3d 768
• Parties: Keith W. LAY, et ux., Respondents, v. Sallie CUNNINGHAM, et al., Appellants.
• Court: Missouri Court of Appeals

688 S.W.3d 768

Keith W. LAY, et ux., Respondents,

v.Sallie CUNNINGHAM, et al., Appellants.

No. ED 111508

Missouri Court of Appeals, Eastern District, NORTHERN DIVISION.

Filed: April 16, 2024

Appeal from the Circuit Court of Knox County, Honorable Corey R. Moon, Judge

FOR APPELLANTS: Wallace W. Trosen, Jr., #1 Crown Drive, Suite 102, Kirksville, Missouri 63501, Jordan C. Dillender, Marjorie M. Lewis, Brown Willbrand, PC, 501 Cherry Street, Columbia, Missouri 65201.

FOR RESPONDENTS: Jules V. De Coster, De Coster Law, LLC, PO Box 81, Monticello, Missouri 63457.

Philip M. Hess, Judge

Introduction

Curt and Sallie Cunningham("Curt" or collectively, "the Cunninghams"), successor trustees of the Joseph E. Cunningham and Judith Ann Cunningham Trust dated June 28, 2007, appeal the circuit court’s judgment granting Keith and Wanda Lay("Keith" or collectively, "the Lays") a prescriptive easement for ingress and egress, thirty feet in width, across property owned by the Cunninghams (the "Cunningham Property"), and injunctive relief.¹The Cunninghams raise six points on appeal.In Point I, the Cunninghams argue the circuit court erred in granting a prescriptive easement because there was no substantial evidence supporting adverse use by the Lays for a continuous period of ten years.In Point II, the Cunninghams argue the circuit court erred in granting a prescriptive easement because the finding of adverse use by the Lays for a continuous period of ten years was against the weight of the evidence.In Point III, the Cunninghams argue the circuit court erred in granting a prescriptive easement because it misapplied the law when it determined the Cunninghams failed to rebut the presumption of adverse use.In Point IV, the Cunninghams argue the circuit court erred in granting the Lays a thirty-foot-wide easement because there was no substantial evidence to support a thirty-foot-wide easement.In Point V, the Cunninghams argue the circuit court erred in granting the Lays a thirty-foot-wide easement for ingress and egress because there was no substantial evidence to support a thirty-foot-wide easement for ingress and egress.In Point VI, the Cunninghams argue the circuit court erred in granting the Lays injunctive relief because such relief was not supported by the pleadings or facts tried by consent given the Lays did not seek this relief in their pleadings or at trial.

Because the circuit court properly applied the law when it placed the burden on the Cunninghams to demonstrate the Lays’ use was permissive and not adverse, Point III is denied.Because the circuit court’s judgment finding the Lays’ use of the Cunningham Property adverse for a continuous period of ten years is supported by substantial evidence and is not against the weight of the evidence, Points I and II are denied.Because the evidence supports the judgment granting a thirty-foot-wide prescriptive easement, Points IV and V are denied.Because the injunctive language in the judgment is unnecessary and this Court may modify a challenged judgment by deleting portions of it under Rule 84.14,² Point VI is granted to the extent the judgment is modified.

The circuit court’s judgment is affirmed as modified.

Factual and Procedural Background

The Lays purchased property in Knox County, Missouri (the "Lay Property"), in 1972.The Lay Property is 436 acres, approximately one half-mile wide, and approximately one mile and a half long.Troublesome Creek runs through the bottom part of the Lay Property limiting access to the southern portion from the northern portion.When the Lays acquired the Lay Property, part of the property south of Troublesome Creek was adjacent to property owned by Selboume and Syddny Skirvin(the "Skirvin Property").Sweet Oak Avenue runs west of the Skirvin Property.After the Lays purchased their property, Selbourne showed Keith how to access the Lay Property south of Troublesome Creek via the Skirvin Property.This access ran generally in an east/west direction from Sweet Oak Avenue on the west side of the Skirvin Property along the top of a long terrace to the west side of the Lay Property.The Lays used the access from Sweet Oak Avenue to farm the southern part of their property.The Lays also used the access to cut timber and hunt.From 1972 forward, the Lays helped maintain the thirty-foot-wide area across the terrace.

In 1999, Joseph and Judith Cunningham purchased the Skirvin Property where their children, Curt and Sallie, occasionally assisted in managing the farm.The Lays continued to use the Cunningham Property to access their property.The Lays never spoke with Joseph or Judith about permission to use the Cunningham Property to access the Lay Property.After Joseph and Judith passed away, the Cunningham Property passed to Curt and Sallie in 2017.The Lays continued to use the Cunningham Property to access their property until 2019, when Curt and Keith spoke about Keith mowing the terrace across the Cunningham Property.Curt told Keith he could not mow or use the access, but Keith stated he had an easement across the Cunningham Property.Curt disagreed the easement existed because there was no record of it filed at the courthouse.

The Lays sued the Cunninghams, seeking to establish a prescriptive easement across the Cunningham Property.The circuit court held a bench trial in which Keith, Keith’s neighbor, two of Keith’s cousins, a son of a former Skirvin employee, Keith’s friend, and Curt testified.Following the bench trial, the circuit court granted the Lays the prescriptive easement.The Cunninghams moved for a new trial, to set aside the judgment, and/or to amend the judgment.Following a hearing on the motion, the circuit court sustained the motion in part "to receive evidence on the legal description of the easement by prescription."The circuit court ordered the Lays to obtain a survey of the easement.Following a hearing on the survey, the circuit court entered the amended judgment and order, with the survey attached, granting the prescriptive easement.This appeal follows.

Standard of Review

[1]"On review of a court-tried case, an appellate court will affirm the circuit court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law."Ivie v. Smith,439 S.W.3d 189, 198–99(Mo. banc 2014)(citingMurphy v. Carron,536 S.W.2d 30, 32(Mo. banc 1976)).

Discussion

This Court will first address Point III separately, then Points I and II together, Points IV and V together, and finally, Point VI separately.

Point III: Misapplication of Law as to Burdens

A.Standard of Review

[2]Where a misapplication of law is asserted, this Court’s review is de novo.Sharma v. Glob. Inv. Grp., LLC,681 S.W.3d 282, 286(Mo. App. E.D.2023)(quotingGolf Club of Wentzville Cmty. Homeowners Ass'n v. Real Homes, Inc., 616 S.W.3d 339, 342(Mo. App. E.D.2020)).

B.Party Positions

In Point III, the Cunninghams argue the circuit court erred in granting a prescriptive easement because it misapplied the law when it determined the Cunninghams failed to rebut the presumption of adverse use related to the Lays’ use of the Cunningham Property for access to the Lay Property after 1999.The Cunninghams contend the circuit court implicitly determined any permission to use the Cunningham Property, granted by Selbourne, did not survive the conveyance of the Cunningham Property in 1999 to the Cunninghams.The Cunninghams argue the circuit court incorrectly placed the burden to prove permissive use on them when the burden remained on the Lays to show the permissive use became adverse for a period of ten continuous years.

The Lays argue the circuit court did not err in granting a prescriptive easement because it correctly applied the law when it determined the Cunninghams failed to rebut the presumption of adverse use related to the Lays’ use of the Cunningham Property for access to their own property after 1999.The Lays contend the circuit court correctly placed the burden to prove permissive use on the Cunninghams.

C.Analysis

[3–5]"For their claim of a prescriptive easement, plaintiffs must prove that their use was continuous, uninterrupted, visible and adverse for a period of ten years."Hirsch v. Ebinger,334 S.W.3d 695, 698(Mo. App. E.D.2011)."Plaintiffs bear the burden of proving by clear and convincing evidence the required elements for a prescriptive easement."Id."Missouri law disfavors the creation of prescriptive easements."Id.Here, the parties dispute adverse use for a continuous period of ten years.

[6–12]"In the context of prescriptive easements, for the use to be ‘adverse’ it is not necessary that the user intend to violate the owner’s rights; rather, ‘it is necessary only for the use to proceed without recognition of the owner’s authority to permit or prohibit the use.’ "Southside Ventures, LLC v. La Crosse Lumber Co.,574 S.W.3d 771, 785(Mo. App. W.D.2019)(quotingWertz-Black v. Guesa USA, LLC, 524 S.W.3d 68, 74(Mo. App. W.D.2017)).For prescriptive easements, "satisfaction of the prerequisite for adversity is commonly inferred, rather than directly proved."Id.(quotingWhittom v. Alexander-Richardson P'ship,851 S.W.2d 504, 509(Mo. banc 1993))."Proof that a particular use of another’s land has in fact occurred normally justifies a finding that the use has been adverse."Id.(quotingWhittom, 851 S.W.2d at 509).Accordingly, "where there has been a long and continuous use of that property, there is a presumption in favor of the party asserting a prescriptive easement that its use of the property is adverse and under a claim of right."Id.(quotingWertz-Black,524 S.W.3d at 74).But such a "presumption does not arise when a showing is made that the use was permissive in origin."Blue Pool Farms, LLC v. Basler,239 S.W.3d 687, 691(Mo. App. E.D.2007)."Where a use originates with permission, it remains permissive ‘unless and until there...