Lozier v. Bultman

• Citation: 286 S.W.2d 43
• Decision Date: 05 December 1955
• Docket Number: No. 22223,22223
• Parties: Lue C. LOZIER and Nolia T. Sillin, Plaintiffs-Respondents, v. Arthur BULTMAN and Louise Bultman, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 43

286 S.W.2d 43

Lue C. LOZIER and Nolia T. Sillin, Plaintiffs-Respondents, v. Arthur BULTMAN and Louise Bultman, Defendants-Appellants.

No. 22223.

Kansas City Court of Appeals, Missouri.

Dec. 5, 1955.

Christian F. Stipp and Joe H. Miller, Carrollton, for appellants.

Jack C. Jones, Carrollton, for respondents.

CAVE, Judge.

This is an action brought by the plaintiffs against the defendants to enjoin them from closing or obstructing the use of an alleged public road, and for an order declaring the passageway to be a public road. The chancellor found that the road was a public road and granted the injunctive relief prayed for, with the exception that defendants were permitted to place and maintain two free-swinging gates at certain designated places. Defendants perfected their appeal.

Title to real estate is not directly involved and jurisdiction is in this court. Judge v. Durham, Mo., 274 S.W.2d 247; Gibson v. Sharp, Mo., 270 S.W.2d 721.

The amended petition alleges that the plaintiffs are the owners of certain specifically described land; that the defendants are the owners of certain land adjacent to and immediately north and east of the land owned by the plaintiffs; that along a certain designated line across a part of defendants' land is a road which provides the only means of ingress and egress to and from plaintiffs' land and other lands to the south and west thereof to a public highway; 'that for more than fifty years said road has been dedicated to public use and has been used as a public road; that said road being public has been maintained and kept in a usable condition by grading, scraping, filling and side ditching for the use and benefit of the public as well as the adjacent and abutting property owners; * * * that said road has been used by the plaintiffs and their predecessors in title and by the public generally, openly and notoriously, for a period of more than fifty years; * * * that defendants and their predecessors in title, by allowing the plaintiffs and the general public to use said roadway, have intended thereby to dedicate said road to the plaintiffs and the general public and allow the use thereof, and have dedicated and allowed the use of said road by plaintiffs and their predecessors * * * in excess of ten years; * * * whereupon an easement has arisen both to the plaintiffs and in the general public, and by reason of said facts, defendants are estopped from denying the plaintiffs and the general public the use thereof * * *'; (Italics ours) that on or about the 12th day of April, 1951, the defendants wrongfully, unlawfully and wilfully obstructed and closed said road by erecting thereon and across the same wooden gates at two different places, and stated to plaintiffs that such acts were intended as a permanent closing of the road. The prayer of the petition sought an injunction against the defendants prohibiting the closing of said road and that the court declare the road to be a public roadway, and for such other relief as may be just and equitable.

The answer admits the ownership of the respective tracts of land, but denies all other allegations of the petition; and alleges that for more than ten years continuously immediately prior to April, 1951, neither the plaintiffs, nor any other person or persons used any part of defendants' land adversely as a means of going to or from plaintiffs' land, and that during said ten year period no public money or labor was expended on any part of said alleged road.

The road is located substantially along the north and south center section line of Section 8, Township 51, Range 22, Carroll County, Missouri. No contention is made that the judgment does not sufficiently describe the road, and it is unnecessary to specifically describe it here. However, in aid of a clearer understanding of the evidence and the situation, we have prepared the attached plat, from the evidence and exhibits. The plat is not drawn to scale, and was not an exhibit in the case, and is being used solely for descriptive purposes.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Defendants first contend that the petition fails to state facts sufficient to constitute a claim on which relief can be granted. The basis of this argument is that the petition does not contain all necessary allegations to legally establish a public highway. This is not a proceeding to legally establish a public road. The primary purpose of the suit seeks injunctive relief, and the question of whether the road is a public road is a collateral issue. Judge v. Durham, Mo.App., 281 S.W.2d 16. Furthermore, there was no motion filed attacking the sufficiency of the petition or to make it more definite and certain, and certainly it does not wholly fail to state any claim. Under such circumstances, every necessary intendment in favor of the petition will be indulged. Goldman v. Ashbrook, Mo.App., 262 S.W.2d 165. It may not be a model petition, but when all the allegations are considered, we think it is sufficient, and is not now subject to attack.

Defendants' last, and principal, contention is that the evidence is insufficient to support the judgment, because (a) the evidence does not show adverse user for a period of ten consecutive years; and (b) there is no substantial evidence that 'public money or labor' was expended on the road 'for ten years continuously'. The basis of this contention is that the evidence is not sufficient to establish a public road under the provisions of Section 228.190, RSMo 1949, V.A.M.S., which, among other things, provides that '* * * and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; * * *.'

We think defendants are in error in assuming, or taking the position, that this suit is founded on said section or that the section is the exclusive method of establishing a public road by user. In School District No. 84 v. Tooloose, Mo., 195 S.W. 1023, 1024, the supreme court discussed this question, and said: 'All that is necessary to be shown in such cases is an adverse use on the part of the public, either for a sufficient time to create a bar under the statute of limitations, or a user by the public under such circumstances and for such a period of time, with the acquiescence of the owner, as to imply on his part a dedication of the land and a prescriptive right thereto on the part of the public by its acceptance and appropriation as a public highway, all of which may be shown by facts and circumstances, as well as positive proof.' See also Borders v. Glenn, Mo., 232 S.W. 1062; Faulkner v. Hook, 300 Mo. 135, 254 S.W. 48; Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552; Mulik v. Jorganian, Mo.App., 37 S.W.2d 963; Borchers v. Brewer, 271 Mo. 137, 142, 196 S.W. 10. In the last cited case, the court reviewed many cases on this subject and, among other things, said, 271 Mo. 142, 196 S.W. 12: "A distinguishing difference between a statutory and common-law dedication is said to be that the former operates by way of a grant, and that latter by way of an estoppel in pais rather than by grant."

We think the instant case was brought, tried and decided on the theory of a common law or implied dedication.

With such principles of law in mind, we examine the evidence.

The controversial road and all the land concerned with its use, are located in the Missouri River bottom. As shown by the exhibits, the river passes a short distance to the south of the 'leve...