McEneny v. Gerlach
| Decision Date | 11 September 1940 |
| Docket Number | No. 25382.,25382. |
| Citation | 142 S.W.2d 1095 |
| Parties | McENENY v. GERLACH et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Francois County; Taylor Smith, Judge.
"Not to be reported in State Reports."
Suit for an injunction by Lettie McEneny against Charles Gerlach and Lillian Gerlach to compel defendants to remove certain fences, gates, and barbed wire from a certain alleged public road and to restrain defendants from obstructing the road or interfering with the use thereof. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment affirmed.
Edgar & Banta, of Ironton, for appellants.
C. P. Damron, of Farminston, for respondent.
This is an injunction proceeding in which the plaintiff below seeks to compel defendants to remove certain fences, gates and barbed wire from a certain alleged public road in St. Francois County, Missouri, and to restrain defendants from obstructing said road or interfering with the use thereof by plaintiff "her tenants, employees and the general public."
The petition alleges that the plaintiff and the defendants own adjoining farms and that across the defendants' land there is a public road which has been used by the general public continuously for more than seventy-five years last past, and that defendants have obstructed same.
Defendants filed a general denial, and at the trial, by leave of court, defendants were permitted to amend their answer to include a plea of the ten-year statutes of limitations.
The petition was filed on May 13, 1938. The parties, by their respective counsel, agreed that a hearing on the application for a temporary writ be waived, and the cause was tried on the merits. On November 18, 1938, a decree was entered for plaintiff commanding defendants, on or before January 1, 1939, to remove from said road the fences, wire, gates, and other obstructions upon and across the same and every part thereof, and restraining defendants from maintaining said fences, wire, gates or other obstructions on any part of said road and from interfering in any way with the use and travel of said road by plaintiff, her tenants, employees, "and the public in general."
After an unavailing motion for new trial, defendants appealed.
Plaintiff adduced as a witness Robert Hibbitts, who was 82 years old at the time of the trial. He testified that he had known and traveled the road in question over what is now defendants' land "since he was a little boy—before he was 12 years old—ever since he could remember," and that everybody else who had occasion to use the road also traveled over it. According to this witness the road across defendants' farm was the main thoroughfare between the villages of Knob Lick, which is located about two miles northwest of defendants' land, and Mine La-Motte, which is located about five miles southeast of their land. Hibbitts testified that the road was used exclusively by the traveling public as such roadway, until a public road was opened on the south side of defendants' land, after which the latter road and the one in question over defendants' land were both traveled by all persons having occasion to do so, until about 1923, when defendants erected a fence across the road in question where it entered the south line of their land, and that even after they erected the fence, there were gaps at the end of the road over their land, and that people traveled the entire road as late as 1933 or 1934.
Plaintiff, who was 55 years old at the time of the trial, testified that as long as she could remember, the road from the southwest corner of her land to the west line of defendants' land had been enclosed by fences on either side, except for a short way on the south side of the east end of it, thus making a lane. Sometime after defendants bought their place in 1922, they put a gate across this road at their west boundary line, so that they could make a way for getting their cattle to and from pasture and water on the northwest corner of their tract. Plaintiff further testified that she and her deceased husband bought their place in December, 1935, taking title as tenants by the entirety, after which defendants put two gates across the lane at their barn lot, and a third at the east end of the lane near plaintiff's southwest corner, so that they could control their livestock and utilize their farm to better advantage; that shortly before this suit was filed defendants erected barbed wires across the east end of the land near plaintiff's southwest corner, entirely obstructing her outlet.
There is testimony to the effect that defendants did not object to the use of the road across their farm by others until about six months before plaintiff and her husband bought their land, when defendant Charles Gerlach had a quarrel with Charles K. Schindler, plaintiff's predecessor in title, following which, according to Gerlach, he "notified the people it was a private road," and locked the west gate. There is testimony tending to prove that up to that time all persons having occasion to use the road, had used it without interference from defendants, except for the inconvenience caused by the west gate mentioned above, and that before defendant and Schindler fell out, the latter had worked on the road to keep it in repair, for no public funds or labor had ever been expended on it.
Plaintiff adduced testimony to the effect that the road in question always was and still is the only outlet west and southwest from plaintiff's land, and that from its earliest history no one was ever heard to object to its use by any one who wished to use it, until after defendants bought the farm.
Plaintiff and her husband bought their land at a foreclosure sale of "a school fund mortgage," and when defendants objected to their use of the said road, plaintiff's husband Frank McEneny went to the county court and the county court succeeded in persuading defendants "in consideration of one dollar paid by Frank McEneny to defendants," to sign an agreement permitting plaintiff's said husband Frank McEneny to use the roadway across defendants' land over a period of two years from May 8, 1936. During those two years the gates remained as they were and plaintiff and her husband, in using the roadway, opened and closed the gates as they passed...
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...established, it was lost by abandonment. State v. Bishop, 22 Mo.App. 435, l. c. 440; Rosenberger v. Miller, 61 Mo.App. 422; McEneny v. Gerlach, 142 S.W.2d 1095; Odom Hook, 177 S.W.2d 165, l. c. 171; Johnson v. Rasnus, 141 S.W. 590, 237 Mo. 586. (4) The refusal of the trial court to permit t......
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