Marshall v. Callahan, 6823
| Decision Date | 06 April 1950 |
| Docket Number | No. 6823,6823 |
| Citation | 241 Mo.App. 336,229 S.W.2d 730 |
| Parties | MARSHALL et al. v. CALLAHAN et al. |
| Court | Missouri Court of Appeals |
A. W. Landis, West Plains, for appellants.
Green & Green, Will H. D. Green, H. D. Green, West Plains, for respondents.
This cause was begun by the plaintiffs (respondents) filing a petition in the Circuit Court of Howell County, Missouri, praying the issuance of a mandatory injunction against the defendants (appellants) requiring them to remove obstructions from a road which the plaintiffs alleged was a private road or lane, by prescription, leading across defendants' land, connecting plaintiffs' residence with their farm and that said road or lane has been in use 'continually, openly, adversely and notoriously for more than 50 years.' The right of plaintiffs to maintain their action was denied in defendants' answer and the points raised will be more specifically referred to in the course of this opinion.
The situs of this litigation is the SW 1/4 of Section 34, Township 23, Range 10, North, in Howell County, Missouri. A short history of the title to this quarter section is necessary for an understanding of the issues. The north half of this quarter section (80 acres) was conveyed to George R. Callahan, the father of Minnie Marshall, and Alfred M. Callahan, by a patent from the United States, dated February 2, 1900. The SE 1/4 of this quarter section was deeded to G. R. (George R.) Callahan by W. J. Murphy, a single man, by warranty deed August 30, 1906. The other 40 acres of this quarter section (SW 1/4 of the SW 1/4) was owned by other parties and is referred to as the 'Summers' or 'McDaniel' forty. On January 18, 1915, G. R. (George R.) Callahan conveyed the N 1/2 and the SE 1/4 of this quarter section to his wife, Minerva J. (Jane) Callahan, who was the mother of Minnie Marshall and Alfred Callahan. Minerva J. Callahan died May 25, 1928 and George Callahan, her husband, died in April, 1937. Until her death, the title remained in Minerva J. Callahan and after the death of Minerva and George, in their children as heirs or tenants in common until April 22, 1940, at which time by mutual exchanges of warranty deeds between the heirs, plaintiffs became the owners of all of the N 1/2 and the SE 1/4 of the SW 1/4 of the quarter section in controversy. Plaintiffs on that day conveyed to defendants, by warranty deed, the S 1/2 of the SE 1/4 of the SW 1/4 of said quarter section. The lane in controversy was not reserved or mentioned in this deed.
Plaintiffs own a farm of 220 acres on the south side of Highway 80 and south of this 20 acres, so conveyed. On this farm was their residence, located approximately south of the center of this quarter section, and at the south end of the lane, which was alleged to have been obstructed. Highway 80 is a black top road, and runs east and west between the Marshall home farm and the 20 acres of defendants. On the east side of the SW 1/4 of Section 34, running the full length thereof, north from Highway 80, was a county road which could be and was traveled by automobiles and other vehicles. Running north from Highway 80 on the west side of the quarter section, was a public road which was also used for vehicular traffic. The public road on the west bordered the plaintiffs' pasture farm by one-fourth mile and the county road on the east bordered it three-eighths of a mile. Near the center of this quarter section was an old barn, but there is no evidence that it was being used. The entire 100 acres was used for pasture and much of it was covered with timber. The land extends north from Highway 80, one-eighth of a mile on the west end of defendants' 20 acres, to the plaintiffs' pasture land.
The trial court granted a permanent mandatory injunction upon the theory that the plaintiffs had acquired a private road by prescription and the obstructions were ordered removed.
The decree was rendered September 7, 1948 and the record shows that the chancellor's docket contains the following minutes: 'Decree and judgment for plaintiffs as per prayer of petition and injunction made permanent--Court finding being the road in question has been shown to have the standing of a public road by prescription; and on the question of establishment of public road by consideration paid by parole agreement or reasonable necessity failure of proof on such issues.'
The decree grants a permanent injunction and states: 'The Court finds that the road in question as described in the pleadings has been shown to have the standing of a road by prescription.'
From this judgment and decree, the defendants have appealed.
This being an equity case, it is heard de novo by this court. The responsibility is ours to render such a judgment and decree as we think should have been rendered by the trial court, at the same time giving due deference to the advantageous position of the chancellor in being able to see and hear the witnesses as they testified at the trial. State ex rel. Wallach v. Raeder, Mo.App., 196 S.W.2d 19; Held v. Reis, Mo.Sup., 193 S.W.2d 17; Binnion v. Clark, Mo.Sup., 221 S.W.2d 214; Thomas v. Milfelt, Mo.App., 222 S.W.2d 359; Polich v. Hermann, Mo.App., 219 S.W.2d 849; Rubinstein v. City of Salem, Mo.App., 210 S.W.2d 382.
The decree does not specifically state whether the Chancellor found the road to be of a public or private nature but under no theory of the case could it have been a public road because there is no evidence that it had been used for 10 consecutive years prior to March 30, 1887. Laws of Missouri 1887, p. 257, Sec. 57; Jordon v. Parsons, 239 Mo.App. 766, 199 S.W.2d 881. Neither is there evidence that it had been opened by the county court and used for 10 years continuously or that it had been used by the public for 10 years continuously and public money had been spent thereon for such period. Sec. 8485, R.S.1939, Mo.R.S.A.; State ex rel. McIntosh v. Haworth et al., Mo.App., 124 S.W.2d 653.
But did the evidence show that the plaintiffs were entitled to use the lane in question across defendants' land, as a private road or easement, by prescription? The evidence on this issue, on the part of the plaintiffs, was that this lane had been used intermittently for from 25 to possibly 60 years. But there is no proof that this user was hostile, Kelsey v. City of Shrewsbury, 335 Mo. 79, 71 S.W.2d 730, or that defendants knew the use of the road was under claim of right and in definance of their title. Allen v. Wiseman, Mo.Sup., 224 S.W.2d 1010; Anson v. Tietze, 354 Mo. 552, 190 S.W.2d 193; Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571.
The lane was over rough land and at one time part of it had been across what was known as the 'Summers' or 'McDaniel' forty (SW 1/4 of SW 1/4) so it would be near a water hole on that land. There is no evidence that it was ever worked or improved by anyone. The evidence did show that many years ago a 'yoke of oxen' had been driven over it. The evidence shows that it was sometimes used for driving cattle, going on horseback or on foot but there was no positive evidence that it was used or could be used for an automobile, buggy, or wagon. At one time a tractor had been driven over it. The evidence shows it was more of a trail than a road. How often it was used or what period of time does not clearly appear but in the testimony of plaintiff, Wm. Marshall, we find the following: Mrs. Marshall testified she drove cattle through the lane every few days since this lawsuit was instituted.
Plaintiff, Wm. Marshall, contended that as part of the consideration for the 20 acres, the defendant, Alfred Callahan, agreed to leave the lane open and in support of that contention the record shows the following question to which an objection was sustained by the court: However, the witness (plaintiff, Wm. Marshall) answered: This was again objected to and the objection overruled.
The record further shows Mr. Marshall testifying:
On cross examination, he testified further:
'
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On the other hand, this testimony was emphatically denied by defendant, Alfred Callahan. Assuming but not deciding, that evidence of this character was admissible to show that this alleged agreement was part of the consideration, it was not clear, cogent and convincing.
When the deed was made to the defendants by plaintiffs, they had title to the entire tract. They did not demand or receive a deed to the roadway. There was no reservation or mention in the deed, executed by plaintiffs, of the right of way or easement that plaintiffs now value so highly. It would have been a simple matter to have provided for this easement in the deed and then it would have been of record and there could have been no question as to the rights of the parties. From the fact that the plaintiffs did not include it arises the inference that it was not part of the consideration because they were selling the property, were preparing and executing the deed...
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