Majors v. Bush

• Decision Date: 10 March 1947
• Docket Number: 39683
• Parties: Clarence A. Majors and Ethel M. Majors, Appellants, v. Alma L. Bush
• Court: Missouri Supreme Court

200 S.W.2d 892

356 Mo. 17

Clarence A. Majors and Ethel M. Majors, Appellants, v. Alma L. Bush

No. 39683

Supreme Court of Missouri

March 10, 1947

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Affirmed.

Conger R. Smith for appellants.

(1) The use of the lane in question by respondent, and those under whom she claims, was by permission of the owners of the alleged servient tenement, was not adverse, and the Court erred in finding for respondent for that reason. Anson v Tietze, 190 S.W.2d 193; Smith v. City of Sedalia, 152 Mo. l.c. 297, 53 S.W. l.c. 910; Hurt v Adams, 86 Mo.App. 73. (2) The use of the lane was not hostile and not under a claim of right, and the court erred in finding for respondent for that reason. McCune v Goodwillie, 204 Mo. l.c. 339, 102 S.W. l.c. 1006. (3) The use of the lane was not open and notorious, and the Court erred in finding for respondent for that reason. Long v. Lackawanna Coal & Iron Co., 233 Mo. l.c. 740, 136 S.W. l.c. 681. (4) The use of the lane was never exclusive, the owners of the alleged servient tenement used it along with respondent and those under whom she claims, and the court erred in finding for respondent for that reason. Stacey v. Miller, 14 Mo. 478; Fiorella v. Jones, 259 S.W. 782; Anson v. Tietze, 190 S.W.2d 193. (5) This lane was not a way of necessity, and, under the evidence, the court erred in finding for the respondent for that reason. Auxier v. Horn, 213 S.W. 100; Bussmeyer v. Jablonsky, 241 Mo. 681, 145 S.W. 772; Seested v. Applegate, 26 S.W.2d 796. (6) A parol agreement for the use of land of another cannot be made to ripen into an easement, and the court erred in finding for respondent for that reason. Pitzman v. Boyce, 111 Mo. l.c. 393; Durham v. Joyce, 129 Mo. l.c. 12; Kuhlman v. Stewart, 282 Mo. l.c. 116, 221 S.W. l.c. 33. (7) One terminus of the lane alleged to be appurtenant to the respondent's property did not lie on the alleged dominant tenement, and the Court erred in finding for respondent for that reason. Wooldridge v. Smith, 243 Mo. l.c. 204, 147 S.W. l.c. 1023; Downey v. Sklebar, 261 S.W. l.c. 698. (8) The description of the property on which an easement was awarded respondent over the land of appellants, and shown in the answer of respondent, is insufficient, and so indefinite, uncertain and meaningless that a valid judgment was not and could not be entered upon it, and the court erred in entering the judgment herein for that reason. Livingston v. Morris, 71 Mo. l.c. 603; Broderick v. Tyler, 187 S.W.2d l.c. 478; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722. (9) Respondent, claiming an easement in a lane or right of way over appellants' land, did not show that the travelled road over which the easement is claimed was in the same place during the prescriptive period, and the court erred in finding for respondent for that reason. 19 C.J. 899, note 18; 28 C.J.S. 670, note 54; Garnett v. Slater, 56 Mo.App. l.c. 213. (10) The alleged agreement on the part of respondent's husband was without adequate consideration moving to the alleged servient tenement or the owner thereof, and the court erred in finding for the respondent for that reason. The alleged dominant tenement was owned by respondent and her husband, and the husband alone entered into the alleged agreement. Baker v. Lamar, 140 S.W.2d l.c. 35. (11) The owner of the alleged dominant tenement could not grant an easement to the owner of the alleged servient tenement over the lane "A," for the reason that the lane "A" was not appurtenant to the appellants' 80-acre tract. (12) The actual consideration proved in the testimony was insufficient to support a valid contract, and was not an adequate, valuable or substantial consideration. (13) Respondent omitted to recite any right to any easement in lane "B" in a grant by deed of the alleged dominant tenement, after the alleged agreement for a right of way, thereby admitting she did not have such easement, and the court erred in finding for respondent for that reason. Anthony v. Kennard Bldg. Co., 188 Mo. l.c. 722, 87 S.W. l.c. 925; Riebold v. Smith, 150 S.W.2d l.c. 602. (14) Respondent herein did not come into a court of equity with clean hands, having prevented the use of the lane "B" by appellants, and the court erred in finding for respondent for that reason. Snitzer v. Pokres, 324 Mo. l.c. 400, 23 S.W.2d l.c. 161.

(1) The use of the lane in question by respondent, and those under whom she claims, was not by permission of the owners of the alleged servient tenement, but was by adverse possession and by contractual agreement. Sanford v. Kern, 223 Mo. 616; Jacob et ux. v. Brewster, 190 S.W.2d 894; Oliver v. Wilhite, 227 Mo.App. 538. (2) The use of the lane was hostile and under a claim of right. Sanford v. Kern, 223 Mo. 616; Jacobs et ux. v. Brewster, 190 S.W.2d 894. (3) The use of the lane was open and notorious. Sanford v. Kern, 223 Mo. 616. (4) The use of the lane was exclusive to the extent necessary to create an easement in this respondent. Sanford v. Kern, 223 Mo. 616; Lewis v. Kaplan, 5 S.W.2d 699; Meyers v. Ustick, 243 S.W. 833. (5) The lane was a way of necessity and the court in any event did not err in finding for the respondent for that reason. Sanford v. Kern, 223 Mo. 616; Oliver v. Wilhite, 227 Mo.App. 538. (6) A parol agreement for the use of the land of another may ripen into an easement under many circumstances. Sanford v. Kern, 223 Mo. 616; Lewis v. Kaplan, 5 S.W.2d 699; Meyers v. Ustick, 243 S.W. 833; Oliver v. Wilhite, 227 Mo.App. 538. (7) One terminus of the lane alleged to be appurtenant to respondent's property did not lie on the alleged dominant tenement and the court did not err in finding for the respondent for that reason. Sanford v. Kern, 223 Mo. 616; Jacobs et ux. v. Brewster, 190 S.W.2d 894. (8) The description of the property on which the easement was awarded respondent and shown in the answer of respondent is definite and certain enough to constitute a valid judgment. (9) Respondent claiming an easement in the lane or right-of-way proved that the road over which the easement was granted was the same road as was constructed by mutual agreement. (10) The alleged agreement on the part of the respondent's husband showed adequate consideration moving to the alleged servient tenement or the owner thereof. Sanford v. Kern, 223 Mo. 616; Oliver v. Wilhite, 227 Mo.App. 538. (11) The respondent proved an easement right in lane "B" by adverse user and the court did not err in finding for the respondent for that reason. (12) Respondent herein came into court of equity with clean hands. Oliver v. Wilhite, 227 Mo.App. 538; Sanford v. Kern, 223 Mo. 616.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Clarence A. Majors and his wife, Ethel, filed this suit in Jackson County, Missouri, to enjoin the defendant Alma L. Bush, from using a lane over land owned by the Majors as an outlet to a public road. The defendant filed an answer wherein she asserted she had a right to use the lane because she had an easement therein by virtue of a contract and also because she had used the roadway openly, notoriouly and adversely for a period of twenty-four years. The trial court, after hearing evidence, entered a decree for the defendant. The theory of the trial court, as stated in the decree, was as follows:

"That the Defendant and those under whom she claims have enjoyed the use of said roadway openly, notoriously and adversely for a period of some twenty-four (24) years under claim of right, and that said use has been a continuous one for said period of twenty-four (24) years, and that said easement was acquired as a matter of contract, and that said contractual agreement was fully executed by the parties, and that title to said easement is quieted in this Defendant and her successors in title."

Plaintiffs appealed.

[SEE ILLUSTRATION IN ORIGINAL]

A plat was introduced in evidence which it was agreed correctly showed the true situation. We are embodying it herein as a part of this opinion. It is plaintiffs' theory that defendant had been notified not to use the lane; that her use of the lane had been by permission only and therefore she could have no easement therein. The location of the roadway or lane, the ownership of the various tracts of land and the location of the public roads as of the date of the trial, were as indicated on the plat. It will be noticed that two lanes are shown on the plat. Lane "A" is twelve feet wide and lane "B", immediately to the east thereof, sixteen feet wide. Lane "A" is located on the land owned by Thornton in section thirty-three and "B" is on the Majors' tract in section thirty-four. The two together make a roadway twenty-eight feet wide running northerly eighty rods. The lanes are divided by the section line between sections thirty-three and thirty-four. It will be noted that defendant Bush owns land in section thirty-three immediately north of the point where the lane stops. Lane "A", lying in section thirty-three, is not directly in controversy and the owner of the forty acres upon which lane "A" is located was not a party to and took no part in this lawsuit.

Plaintiffs purchased their eighty acres of land from Ben V. Hamilton in the year 1942. Mr. Hamilton had owned this land since 1904. The defendant and her husband, now deceased, purchased their land in the year 1920. At that time, so the evidence discloses, there was a hedge on the section line dividing sections thirty-four and thirty-three. The Bushes and their predecessors in title had used lane "A" over the Thornton tract. The Hamiltons had been using lane "B" to the east of the hedge. About the year 1924 the hedge was removed and the two lanes thrown together and up to the time this...