Meinhardt v. Luaders, 38319

• Decision Date: 24 October 1978
• Docket Number: No. 38319,38319
• Citation: 575 S.W.2d 213
• Parties: Irven J. MEINHARDT and Mabel M. Meinhardt, his wife, and Carl Fisk, Sr., and Betty J. Fisk, his wife, Plaintiffs-Appellants, v. Robert LUADERS and Mrs. Robert Luaders, Defendants-Respondents. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 213

575 S.W.2d 213

Irven J. MEINHARDT and Mabel M. Meinhardt, his wife, and Carl Fisk, Sr., and Betty J. Fisk, his wife Plaintiffs-Appellants, v. Robert LUADERS and Mrs. Robert Luaders, Defendants-Respondents.

No. 38319.

Missouri Court of Appeals, St. Louis District, Division One.

Oct. 24, 1978.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 15, 1978.

Lawrence J. Fleming, St. Louis, for plaintiffs-appellants.

David P. Senkel, James E. Bowles, Thurman, Nixon, Smith, Howald, Weber & Bowles, Hillsboro, for defendants-respondents.

CRIST, Judge.

Easement case. This litigation involves plaintiffs Meinhardts' and Fisks' right to travel over a 30 foot section of a private driveway extending over defendants' land in order to reach a public roadway. The trial court heard the evidence and denied plaintiffs' request to enjoin defendants' interference with such use and sustained defendants' counterclaim for quiet title. The court's judgment specifically found that "no easement by prescription or implication exists on behalf of these plaintiffs in said driveway." We affirm.

The property in question was owned as an entirety by the Weicherts prior to 1958. They had one entrance leading onto the adjoining county highway which was connected to their farmhouse by a dirt road. In that year they conveyed 6 of their 60 acres to the Meinhardts. The Meinhardts conveyed part of their property to the Fisks in 1961. Plaintiffs and their tenants use the Weicherts' highway entrance and a section of dirt road (about 30 feet altogether) to reach an adjoining road leading across their own property. In 1968 the Weicherts conveyed the remainder of their farm (54 acres), including their house and the section of dirt road which plaintiffs had been using, to the defendants. The defendants subsequently took steps to block plaintiffs' use of the entrance and road on their property.

To obtain an easement by prescription, plaintiffs had the burden to establish an adverse use for ten years under a claim of right with notice to the owner of the character of the claim. George v. Dickinson, 504 S.W.2d 658, 662-663 (Mo.App.1974). On the facts of this case we need only discuss the element of adversity.

An adverse use of another's land has been defined as a use not made in subordination to the owner. Dalton v. Johnson, 320 S.W.2d 569, 573 (Mo.1959). An adverse user does not recognize in the owner of the servient estate an authority either to permit or prevent the continued exercise of the use. A key factor in determining adversity is the nature of the use at its inception. "(A) use which is permissive in its origin remains permissive until a 'distinct and positive assertion of a right hostile to the owner' is 'brought home to him.' " Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571, 572 (1942); See also McIlroy v. Hamilton, 539 S.W.2d 669, 674 (Mo.App.1976); McDougall v. Castelli, 501 S.W.2d 855, 858 (Mo.App.1973).

On the record presented here we conclude there is sufficient evidence to support a finding that plaintiffs' use of the driveway was permissive and not adverse. In a court-tried case we will uphold the judgment unless it is not supported by substantial evidence, or is against the clear weight of the evidence, or erroneously declares or applies the law. With regard to issues turning on the credibility of a witness, an appellate court defers to the superior position of the trial court to make such judgment. Cook v. Lodes, 560 S.W.2d 64, 65 (Mo.App.1977).

The issue of the Meinhardts' understanding as to the nature of their use of the driveway at the time they purchased the property from the Weicherts reduces to an issue of credibility. Plaintiff, Irven Meinhardt, testified that, while nothing was said about an easement, "(i)t was just an established road and it was used by all of us." He stated that the only discussion he had with Mr. Weichert (deceased at time of trial) was on widening the entrance to the drive and installing a culvert. ¹ Mrs. Weichert testified to the contrary. She stated that when she and her husband sold Meinhardts the property the understanding was they they did have an easement to permanently use the road, and that the reason they let them continue to use the driveway was "because he always said he was going to build his own driveway (on his own property)." At one time she heard plaintiff, Irven Meinhardt, tell her husband that he intended to put in his own road. A use which was permissive as to the Meinhardts could also be found to be permissive as to the Fisks. The evidence was sufficient to support the denial of a prescriptive easement.

Plaintiffs seek to establish an easement by implication on the basis of pre-existing use arising from the severance of adjoining properties by a common owner. ² The significant factor in determining whether such an easement by implication exists is the "intention of the parties as...