Lee v. Smith, 9135

• Decision Date: 02 August 1972
• Docket Number: No. 9135,9135
• Citation: 484 S.W.2d 38
• Parties: Joyce G. LEE and Ursula A. Lee, Plaintiffs-Appellants, v. Ralph C. SMITH and Eileen M. Smith, husband and wife, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 38

484 S.W.2d 38

Joyce G. LEE and Ursula A. Lee, Plaintiffs-Appellants, v. Ralph C. SMITH and Eileen M. Smith, husband and wife, et al., Defendants-Respondents.

No. 9135.

Missouri Court of Appeals, Springfield District.

Aug. 2, 1972.

Claude T. Wood, Dale H. Close, Richland, for plaintiffs appellants.

Hugh Phillips, John E. Parrish, Phillips & Parrish, Camdenton, for defendants respondents.

HOGAN, Judge.

Plaintiffs brought this action to have an allegedly existing roadway declared a public road under the provisions of § 228.190, R.S.Mo. (1969) ¹ and to enjoin defendants from obstructing that road. Trial to the court has resulted in a judgment adverse to the plaintiffs, and they appeal.

The parties are adjoining landowners. A description of the land belonging to each is set out in the original and amended petitions, but it is sufficient here to say that the plaintiffs' land lies north of the defendants' and the two tracts are, or once were, traversed by an 'S' shaped roadway which runs generally from southwest to northeast. The south end of the road intersects an east-west road near a structure referred to as the Elm Grove School. The northwardly section of the road (referred to and known, apparently, as the 'Dean's Creek end') intersects a bifurcated section line road, one fork of which runs north, the other to the west.

The course and distance of the road is quite clearly shown by plaintiffs' exhibits 11 and 12; it appears to be about 1.8 miles long on these two surveys, and the surveyor who made them testified that the road was 24 feet wide. Plaintiffs' residence appears to be about .7 miles from the south end of the road. It is to be noted, however, that these surveys were not introduced in evidence until the court had heard the plaintiffs' oral proof, which consisted of the testimony, of varying degrees of relevance and certainty, of 20 witnesses. Originally, plaintiffs undertook to describe and locate the road by attaching part of a Camden County road map to their petition and incorporating it as their exhibit 'A', as provided by Rule 55.14. Neither the scale of the map nor the length of the roadway is shown on this exhibit, from which the witnesses testified, and counsel's use of this exhibit and their failure to correlate the oral evidence with specifically located points marked on the exhibit has handicapped us in our factual review of the case in much the same way as was true in State ex rel. State Highway Commission v. Hill, Mo.App., 373 S.W.2d 666.

The dispute here litigated apparently arose after the defendants barricaded the road near their residence, which is '(p)robably 300 yards' from the south end of the road. In answer to interrogatories, defendants maintained that the plaintiffs refused to close the gate which extended across the road in front of defendants' 'mobile home' and drove along the road at high speed, making noise and throwing gravel into defendants' front yard. Plaintiffs testified that the defendants several times closed or slammed the gate shut as plaintiffs approached, which plaintiffs considered insulting. Whatever the merits of their personal differences, the plaintiffs maintained and in general sought to show that the roadway in question was a public roadway along its entire course, by prescription and public maintenance; the defendants insisted that the road was, in the language of their answer, 'an existing private trail and driveway', which they had a right to close. Plaintiffs alleged that the southwardly part of the road furnished the sole means of ingress and egress to their property, but testified to the contrary, thus distinguishing this case from Sellers v. Swehla, 364 Mo. 285, 261 S.W.2d 26.

When the cause came on for hearing on October 12, 1970, plaintiffs had the evidence of 20 witnesses, defendants the evidence of one. At the close of plaintiffs' case, defendants moved the court to dismiss plaintiffs' petition and enter judgment for the defendants on the grounds, among others, that plaintiffs had failed to furnish the court with an adequate description of the roadway, and had failed to show that the road in question had been used by the public as a public road for ten years continuously. The court stated it was inclined to sustain the motion, but took the matter under advisement and called for trial briefs. Those briefs were filed and have, incidentally, been included in the transcript. On January 12, 1971, the case was reopened on plaintiffs' motion and plaintiffs were permitted to file an amended petition. The trial court limited its order reopening the case; plaintiffs were only permitted to introduce evidence showing an accurate description of the roadway, but they do not complain of that limitation here. In their amended petition plaintiffs again alleged that the road in question was a public road, and in general followed the allegations of their original petition except as to the description of the roadway.

When the case was reopened, plaintiffs introduced surveys of the road involved. The court refused to receive these surveys, plaintiffs' exhibits 10, 11 and 11A, because it was not shown that they had been commenced from a corner established by the government or re-established according to statute. See Pioneer Cooperage Co. v. Bland and Foster, 228 Mo.App. 994, 1001 75 S.W.2d 431, 435(5). The cause was again continued, and additional evidence was heard from plaintiffs' surveyor on January 19, 1971, in Miller County. At that time, plaintiffs cured the inadmissibility of their exhibits 11 and 11A and offered exhibit 12, which was 'an extension of the . . . road from the northern extremity of Plaintiffs' Exhibit 11A on to Deane's (sic) Road.' The case was again taken under advisement, and the parties filed further briefs, which again have been included in the transcript. Defendants in their written suggestions renewed their motion to dismiss and for judgment, and finally on May 11, 1971, the trial court entered an order denying plaintiffs' motion for leave to file a second amended petition and granting defendants' motion to dismiss. This appeal followed.

Both parties seek and urge upon this court a sweeping review of the facts and a meticulous consideration of all the inferences possible from the evidence presented, but while we have carefully reviewed the whole record upon both the law and the evidence as required by Rule 73.01(d), neither that rule, nor the constitutional mandate that we reduce our opinion to writing, Mo.Const. art. 5, § 12, nor Rule 84.16(a) either suggests or requires that we digest and restate the whole of the diffuse record presented or that we consider all the peripheral issues which might be discussed. See Smarr v. Smarr, 319 Mo. 1153, 1161--1162, 6 S.W.2d 860, 861--862(1); Turner v. Anderson, 236 Mo. 523, 531--532, 139 S.W. 180, 181--182. In the interest of an opinion of reasonable length, we shall limit ourselves to a consideration of the issue we consider to be meritorious and determinative of the appeal. See Bloomfield Reorganized School Dist. No. R--14 v. Stites, Mo., 336 S.W.2d 95, 97; Logsdon v. Duncan, Mo., 293 S.W.2d 944, 946(1).

Further by way of qualification, we note that we limit our review to a consideration upon the plaintiffs' trial theory. There are several ways in which land may become a public road or highway, Cochran v. Wilson, 287 Mo. 210, 227, 229 S.W. 1050, 1055(2); Connell v. Baker, Mo.App., 458 S.W.2d 573, 576, and plaintiffs' petition in this case is broad enough to allow the court to grant relief, or at least the injunctive relief sought, on either of several theories. Nevertheless, the briefs filed here by the plaintiffs and the various memoranda submitted by them to the trial court show unmistakably that they proceeded below upon the theory that the road involved had become a public road by public user and the expenditure of public money or labor for a period of 10 years, as provided by § 228.190. ² Having thus characterized their own action, plaintiffs are in no position to repudiate their trial theory here, Gover v. Cleveland, Mo.App., 299 S.W.2d 239, 243(10), and we must review the case upon the theory presented to the trial court. Gover v. Cleveland, supra, 299 S.W.2d at 243(13); Cook v. Bolin, Mo.App., 296 S.W.2d 181, 184(4--6). We are aware also that the right of access to a public road by one living on a cul-de-sac or dead end, even though it is a private road, is a property right entitled to judicial protection, Sellers v. Swehla, supra, 364 Mo. at 305, 261 S.W.2d at 39; State ex rel. Rutledge v. Public Service Commission, 316 Mo. 233, 239, 289 S.W. 785, 787(3); Annot., 150 A.L.R. 644, 649--650 (1944), but no such contention was advanced by the plaintiffs in the trial court in either of the two petitions filed or in the second amended petition they proposed to file, nor did they offer any proof that the .7 miles of road south from their residence to the Elm Grove School furnished their only means of ingress and egress; in fact, they testified to the contrary.

As a final preliminary, and because the principles governing our review of the case are in part dispositive of the appeal, we note that contrary to plaintiffs' views, defendants' motion to dismiss or for judgment was not in this case the equivalent of a motion for directed verdict. To the contrary, the effect of defendants' motion here was simply to submit the case for decision upon its merits, and the trial court had the right to weigh the evidence and decide the case against the plaintiffs. Creek v. Union Nat. Bank in Kansas City, Mo., 266 S.W.2d 737, 748(6); Rigg v. Hart, Mo., 255 S.W.2d 778, 779(3, 4); Moser v. Williams, Mo.App., 443 S.W.2d 212, 214--215(1, 2). We review the case de novo pursuant to Rule 73.01(d), but since no specific findings were requested by the plaintiffs and none were made by the trial court, its general finding resolved all contested issues of fact in favor of the defendants. Rule...