Novinger v. Shoop

• Decision Date: 16 February 1918
• Docket Number: No. 18748.,18748.
• Parties: NOVINGER v. SHOOP.
• Court: Missouri Supreme Court

201 S.W. 64

NOVINGER v. SHOOP.

No. 18748.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Appeal from Adair County Circuit Court; Charles D. Stewart, Judge.

Suit by William H. Novinger against Daniel R. Shoop. From a judgment for plaintiff, defendant appealed to the Court of Appeals, and that court (185 Mo. App. 526, 172 S. W. 616) transferred the appeal to the Supreme Court. Affirmed.

This is a proceeding in equity to enjoin the obstruction of a private way and to compel the abatement of an obstruction of the same, the way in question being an outlet from plaintiff's tract of land to a public road.

The following plat will show the relative positions of the tracts owned by the parties, as well as the location of the road obstructed:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff owned the 40-acre tract marked on the plat the northeast quarter of the southeast quarter of section 30. The road marked a, a, is a private road, as will be seen, leading from the corner of plaintiff's land southward one-half mile to a public road running east and west. The defendant owned the land on both sides of the road, on the west side throughout its entire length, and on the east side for more than half its length.

At one time, some years before this trouble came up, a road also ran along the dotted line marked b, b, running from a public road a quarter of a mile to the west, along the south and east side of plaintiff's land, and eastward to a public road. This road b, b, was formerly used in connection with the road a, a, but about 10 years or more prior to the acquisition of his land by the plaintiff it was closed up and abandoned, leaving the road a, a, as the only outlet from that laud.

The evidence shows that for many years, beginning back in 1853, the roads a, a, and b, b, were used pretty continuously by people going from the southeast to the northwest, so as to reach the public road on the east and the schoolhouse marked on the plat. After b, b, was discontinued, the part marked a, a, was kept open. It was defined by fences which were maintained on both sides during all the time mentioned down to 1912. Although there is some evidence tending to show that the fences along this line inclosing the road a, a, were shifted somewhat at one time, at the time of the trouble in question the entire road was given off the tract on the west of the road for the south half of it, and the entire road was given off the tract on the east of the road for the north half of it, the road being 20 feet wide. Formerly, it appears, it ran straight through with 10 feet on each side of the quarter section line.

From an early day until 1909, one Col. John L. Porter owned the tract of land affected, when he sold it, and in 1912 it passed into the plaintiff's hands. He also owned the 34-acre tract on the east side of the road under consideration, at the south end, from an early day, and owned it at the time of the trial.

One Peter Mackey owned the land on the west side of the road in question from 1880 until 1912, when he conveyed it to the defendant. For about 10 years prior to that time the defendant had owned the 46-acre tract just east of the road and north of the Porter tract. Some time in 1907, while Mackey owned the tract west of the road, now owned by defendant, and the defendant owned the 46 acres east of the road and Porter owned the land now owned by plaintiff, Peter Mackey and his son William attempted to obstruct this road under consideration, and Porter brought a suit against him in that connection. This suit was settled by an agreement as follows:

"This agreement made by and between John L. Porter of the first part, and Peter Mackey and William Mackey parties of the second part, witnesseth: That in consideration of the dismissal of the case of John L. Porter, plaintiff, and said Peter Mackey and William Mackey, defendants, now pending in the Adair circuit court of Missouri, that the passway now used as a highway along and over the east half of the northeast quarter of the northeast quarter of section 31, township 63, range 15, lying and being in Adair county, Missouri, and as is now fenced shall be and remain a highway thereon as long as the parties of the second part shall own and be in possession of said real estate, and it is further agreed that said second parties agree to pay all costs of the suit pending herein and the first party agrees to dismiss said suit at defendants' costs.

"Witness our hands and seal this 28th day of May, 1907.

                                       Peter Mackey
                                      "William Mackey."
                

Some years after that Mackey met Porter and told him that he was going to put a gate across that road, and Porter told him that he (Porter) would chop it down quicker than Mackey could put it up. The matter went no further, and there was no further attempt made by Mackey to obstruct the road.

Plaintiff bought his land in February, 1912, apparently soon after the defendant bought the Mackey land on the west side of the road. The defendant, then, at the time the suit was brought, owned the land marked as his on the plat, and owned it in October, 1912, at which time he put a gate across the north end of the road at the plaintiff's southeast corner and another gate across the road at the midway point between that and the public road, and thus provoked this action of the plaintiff.

When defendant first put up the gate across the north end of the road, the plaintiff, it seems, shifted the gate further west, so that it would open on his land, giving him a passageway across the corner of defendant's land into the road. There is some controversy about this incident. The plaintiff claimed that he shifted the gate so that it opened out of his land at the corner, giving him access to the road.

Higbee & Mills, of Lancaster, for appellant. P. J. Rieger and Cooley & Murrell, all of Kirksville, for respondent.

WHITE, C. (after stating the facts as above).

I. The defendant claims that there was no continuous user so as...