Mayo v. Schumer

• Decision Date: 04 December 1923
• Docket Number: No. 17819.,17819.
• Citation: 256 S.W. 549
• Parties: MAYO et al. v. SCHUMER
• Court: Missouri Court of Appeals

256 S.W. 549

MAYO et al. v. SCHUMER

No. 17819.

St. Louis Court of Appeals. Missouri.

December 4, 1923.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

"Not to be officially published."

Suit by Henry Mayo and others against Louis Schumer. Decree for plaintiffs, and defendant appeals. Reversed and remanded, with directions.

Edward Robb, of Perryville, for appellant. Chas. A. Killian and Samuel Bond, both of Perryville, for respondents.

ALLEN, P. J.

This is a suit in equity whereby the plaintiffs seek to restrain the defendant from obstructing a road which plaintiffs allege that they, as well as other members of the public, are entitled to use over and across defendant's lands, or from otherwise interfering with plaintiffs and members of the public in passing over or repairing the same.

The petition alleges that plaintiffs, Henry Mayo, Edward Sanders, and A. J. Graff, are the elected, qualified, and acting trustees of the Bois Brule Baptist Church, of Perry county, Mo., and that they and their coplaintiffs have relatives and friends buried in the graveyard referred to in the petition, and that plaintiffs prosecute this suit for themselves and others similarly situated who may elect to become parties thereto. It is then alleged that one Charles V. Preston and wife, by deed of date January 31, 1857, conveyed to certain trustees and their successors a certain described tract of land in Perry county, containing two acres, for religious and charitable purposes; that said trustees at once took possession of said premises, and erected thereon a church, and set apart a portion thereof for a public burial ground or cemetery, which has since been continuously used for such purposes. And it is alleged that the only way of ingress to or egress from said church and cemetery was along and over an open road, 20 feet wide, the center line of which is described in the petition. It is further alleged that said roadway was used by the congregation of said church, as well as by the general public, continuously from and before the date of said deed from Preston, without hindrance or interference of any kind, until about 5 years prior to the institution of the suit, "when the defendant at divers times made slight changes in said road in its course through lands now owned by him, and has now closed said way with fences and locked gates, thereby totally obstructing these plaintiffs and the public from passing along said road;" that plaintiffs have no other way of reaching the cemetery for the interment of members of their families therein or for caring for the graves of their deceased relatives; and that, by reason of the premises, the plaintiffs sustain special damages apart from that sustained by the general public by reason of the obstruction of said road, and have no adequate remedy at law therefor.

The prayer of the petition is that the defendant be enjoined from obstructing said road, that he be required to remove all obstructions caused to be placed by him thereon, and to refrain from interfering with plaintiffs and others in repairing the road or passing over the same, and for general relief.

The answer is a general denial, coupled with a plea to the effect that that part of the road mentioned in the petition as extending over defendant's land was conveyed to him by warranty deed more than 10 years prior to the filing of the petition; that defendant has since been in open, notorious, exclusive, continuous, and adverse possession thereof under said deed, and that his grantors and predecessors in title were in open, exclusive, notorious, continuous, and adverse possession of said strip of land for more than 10 years prior to the conveyance to defendant, and that the fences and gates which defendant is alleged to have placed across the alleged road were erected by him more than 10 years prior to the institution of the suit.

The reply is a general denial of the new matter in the answer.

Defendant's farm lies in township 36 north, range 11 east, in Perry county, and the cemetery in question is situated east thereof and separated therefrom by land which originally belonged to James V. Preston, which was subsequently acquired by Lawrence Brown, and is now owned by his son, Raymond Brown. The plat used at the trial, referred to as Plaintiffs' Exhibit 1A, and which was introduced in evidence, has been lost. However, a rough drawing, marked defendant's Exhibit 2, appears in the abstract, and is an aid to an understanding of some of the testimony, though no distances or measurements are shown thereon. The evidence shows that prior to 1877 the land now owned by defendant belonged to one Hagan; and that it was purchased by Lawrence Brown at a sale made by Eagan's administrator in 1894 it was sold by Lawrence Brown to one Leibie, who, in 1900, sold it to one Sutterer, from whom defendant purchased it in 1907. West of defendant's farm is that of Mrs. Moore; north of defendant's farm is that of one Eckenfeld; and west of the Eckenfeld farm is that of one Renner. The Moore and Renner farms lie immediately east of and abut upon a main county road, the "Chester road," which extends north and south at that place; while north of the Renner farm and the Eckenfeld farm is a county road, the "Bluff road," extending east and west, which,' it appears, begins at the Chester road and extends east.

It was shown by plaintiffs that in 1857 James Preston and wife conveyed two acres of land to the trustees of the Bois Brule Baptist Church, as alleged in the petition, and that a church was erected thereon and a portion thereof set apart for cemetery purposes. It appears that the church was abandoned many years ago, but that the cemetery continued to be used for burial purposes. And it is said that the cemetery has been "thrown open to the public."

It appears that when Preston owned the land now owned by Raymond Brown he used, as an outlet to the west, a road which extended from the church and cemetery, near which he lived, across his land to and across the land now owned by defendant, which ultimately connected with the Bluff road. And it is said that others used this way in going to and from the cemetery. The evidence shows, however, that for many years this outlet across the land now owned by defendant was through unfenced woodland along the ridge, and that the so-called road shifted about a great deal; that at that early period people went pretty much as they pleased over such open lands in the vicinity, and those having occasion to use this outlet sought the easiest means of getting through the timber. In course of time, as the land now owned by defendant was cleared of timber by the respective owners thereof, and put in cultivation, the road was moved toward the south, from time to time, until, it is said, it was finally placed along a branch, where, if it may be said to exist as a road, it is now located. The testimony is that Leible placed the road along the branch, and, it seems, erected a fence on the north side thereof. Lawrence Brown, and later his son, Raymond Brown, used as an outlet this road through what is now defendant's farm, and. which upon reaching the western edge of said land, extended north between the lands now owned by Eckenfeld and Renner to the Bluff road; and they and the respective owners of the land now belonging to defendant kept it in condition for travel until 1913, when Raymond Brown secured another outlet. Since that time, it appears, no work has been done upon it except upon that portion thereof used by defendant for his private purposes; and there is evidence that the old road along the branch has been rendered impassable by washouts. All of the evidence, both for plaintiff and defendant, is that no public money or labor has ever been expended on this road. There is testimony in behalf of plaintiffs indicating that this is the only road available for reaching the cemetery. There is, however, testimony that there was at one time a road east from the cemetery, extending a short distance over the land now owned by Raymond Brown and then over other land connecting with a road on land of one Hanson, and ultimately connecting with the county road. But this road, it is said, was allowed through lack of attention to become impassable; and it appears that it could not be used except by permission of the landowners over whose lands it formerly extended. It also appears that the cemetery may be reached by use of Raymond Brown's present outlet, but which is not a public road.

After the acquisition by defendant of his land he erected gates at either end of the so-called road upon his premises. According to defendant's testimony, he erected the gates in 1908 and 1900, though they were not locked until 1919. There is testimony for plaintiffs that the gates were erected 6 or 7 years before the trial; while one of plaintiffs' witnesses, Raymond Brown, testified that one gate was erected 11 years prior to the trial and the other in 1913.

Touching the character and extent of the user of the alleged road by the public, Levi Phillips, one of the plaintiffs' witnesses, testified that the road had been used "for cemetery purposes and church purposes" about 50 years, and that it bad been approximately at its present location along the branch mentioned for about 30 years.

Henry Mayo, another plaintiff, testified, in a general way, that he and other interested parties had always used this road in going to and from the cemetery.

Andrew Pillars, another plaintiff, testified that to his knowledge there had been "a road in and out there about 30 years," but that it "had been changed around by clearing first one way and then another," though there had not been much change in the last 25 or 30 years. On cross-examination of this witness the following occurred:

"Q. Wasn't that just like a great many of other roads during that early period—people went through over anybody's land they could get through over? A. In the...