Odom v. Hook

• Decision Date: 06 December 1943
• Docket Number: No. 20238.,20238.
• Parties: ODOM et al. v. HOOK et al.
• Court: Missouri Court of Appeals

177 S.W.2d 165

ODOM et al. v. HOOK et al.

No. 20238.

Kansas City Court of Appeals. Missouri.

December 6, 1943.

Rehearing Denied January 10, 1944.

Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.

"Not to be published in State Reports".

Suit by Ellon L. Odom and Gladys Odom against Lottie A. Hook, formerly Lottie A. Cairns, and others, to enjoin defendants from obstructing an alleged public street and for other relief. Judgment for plaintiffs, and defendants appeal.

Reversed.

Harvey Burrus, of Independence, and Charles V. Garnett, of Kansas City, for appellants.

S. R. Stone and R. A. Smith, both of Independence, and Walter A. Raymond, of Kansas City, for respondents.

BOYER, Commissioner.

Plaintiffs sought injunctive relief on account of the obstruction by defendants of an alleged public street or roadway, designated Main Street in a certain plat filed with the Recorder of Jackson County at Independence; and also sought mandatory orders to compel defendants to move all obstructions in said street, and asked judgment for damages. Plaintiffs claim the right of way over said street as a means of travel to and from their property located on said Main Street.

The joint answer of defendants alleges, in part, that they own the ground which the plaintiffs claim to be a public street; that the strip of ground designated Main Street in the plat referred to was never duly dedicated, or accepted by any public authority, as a public street or road; that it had never been used, improved or occupied by anyone as a public street or road at any time; and that plaintiff's had no interest in or easement over said ground and were not entitled to a right-of-way over same.

The court found that plaintiffs were entitled to the relief prayed and permanently enjoined the defendants from interfering with plaintiffs' use of Main Street and from doing any act in anywise interfering with the use of the ground contained therein as a public street; and defendants were ordered to remove forthwith all buildings, fences and other obstructions placed in the street by them; and plaintiffs' damages were assessed at the sum of One Dollar. Defendants duly appealed.

From the evidence offered the following facts are shown: On July 1, 1859, Eugene Erwin as owner of a tract of ground filed a plat thereof with the Recorder of Deeds of Jackson County, said plat being designated Erwin's Addition to Independence, Missouri. The plat shows lots, blocks and streets. The platted tract is bounded on the north by Cherry Street and on the south by Mulberry Street. Main Street is shown to extend from Mulberry northwardly to Cherry Street and crosses Jones Street, which extends east and west, near the center of the tract. Main Street is sixty-six feet wide and Jones Street fifty feet wide. At the time of filing the plat the entire addition was within the city limits of Independence. On March 5, 1888, an ordinance was passed by the City of Independence changing the city limits so that the north line of the city ran along the center of Jones Street, and all that part of Erwin's Addition north of Jones Street has been outside the city limits ever since. The balance of Erwin's Addition remained within the city limits. It is that part of Main Street north of Jones Street which plaintiffs claim the right to use as a public street and highway.

Defendant Lottie Hook became owner of all lands on the east side of that part of Main Street between Jones and Cherry and of a considerable portion of the ground on the opposite side of the street immediately north of Jones Street. She became owner of the ground in 1936, and in 1937 conveyed to her son and his wife, Oscar Hook and Elsie Hook, the other defendants herein, a part of said ground on the west side of Main Street immediately north of Jones Street, and at various times conveyed parts of said lots and blocks which she owned to other parties, describing the property conveyed with reference to the plat of Erwin's Addition. On January 3, 1939, defendant Lottie Hook conveyed by warranty deed to plaintiffs, property described as the west 225 feet of Lots 2 and 3, Block 3, Erwin's Addition to Independence, Missouri. The property thus conveyed, according to the plat, is bounded on the north by Cherry Street and on the west by Main Street, and adjoins on the south side thereof property owned by defendant Lottie Hook. Plaintiffs claim the right to use the strip of ground sixty-six feet wide, designated on the plat as Main Street, as a public highway for travel thereon from their property to Jones Street.

The principal conflict in the testimony of witnesses arises upon the question whether that portion of Main Street north of Jones Street, was ever used as a public road since 1888.

Defendant Lottie Hook had erected a house on the ground which she conveyed to the plaintiffs. This house was located on the northern part of said ground near Cherry Street, and ten feet of the building encroached upon the ground contained within the limits of Main Street as designated on the plat. Plaintiff Ellon Odom testified that he was not aware of that fact at the time he bought the property. He also testified that at that time there was a ditch four or five feet deep extending across Main Street near the south line of the property bought, and when he went to view the property he drove north on Main Street from Jones Street to the ditch and then turned eastwardly along a dirt road to reach the rear of the house that he bought; that there were tracks leading north from Jones Street over Main Street to plaintiffs' property; that the owner of property opposite that of the plaintiffs had a fence extending north and south in the center of Main Street, but there was no fence in the east half of Main Street at that time; that the east half of Main Street was open from Jones Street to plaintiffs' property. At the same time, defendant Oscar Hook had built a garage and chicken house in the west half of Main Street a short distance north of Jones Street, and there were no other buildings or obstructions, except trees, in Main Street at the time the property was purchased; that the trees were all in the west half of Main Street except three pear trees west of plaintiffs' house which were in the east half of Main Street near the center. Witness also testified that Cherry Street along the north side of plaintiffs' property was fenced up and obstructed to such an extent as to prevent vehicular use thereof.

Evidence in behalf of plaintiffs is further to the effect that they moved into the property purchased December 26, 1938, and personally occupied it until March, 1940, and that during said time they used Main Street exclusively in going to and from their property; that the road was passable at all times except occasionally after a heavy rain; that sometime in August, 1939, Lottie Hook built a hog pen partly in Main Street, and she and the other defendants built fences enclosing all of Main Street except a narrow lane eleven or twelve feet wide on the east half of the street near the center and placed a gate in said lane, and defendant Oscar Hook enclosed the west part of Main street up to the lane. Plaintiffs used the lane for some time until Lottie Hook built a house and garage in Main Street, which completely obstructed the use of the street and lane. After plaintiffs vacated their property they rented it, and their tenants have been required to use and have used an outlet to the north on Cherry Street. It also appears from the testimony of Mr. Odom that he maintained a gate across Main Street for a period of four months to restrain stock that he had in pasture which included the east part of Main Street. He also admitted that when defendant Lottie Hook had erected a gate across the space that he claimed as a road he ran his car right through it and tore it down, and told her she couldn't do that. Feeling between the parties reached the point of personal violence. Thereafter, Lottie Hook denied the privilege of passage through the space theretofore used and eventually built a house, garage and other structures in the east half of the space designated Main Street near Jones Street which completely obstructed any use of Main Street as a highway.

On cross examination Mr. Odom testified that to the best of his knowledge the first time he could drive straight south from his house on the space marked Main Street was about December 1, 1939; that he had built a bridge and put a fill in the ditch which crossed Main Street; he denied that defendant Lottie Hook informed him at the time the purchase was made that Cherry Street and the east half of Main Street would go with the lots he purchased.

Gladys Odom testified mainly in corroboration of her husband as to the obstruction of Main Street by the defendants. She further testified that the house purchased faced south towards Jones Street; that plaintiffs' property was about five hundred feet north of Jones Street, and that when they moved out there they went north on Main Street and then jogged around the ditch east, then north up to the house; that the ditch was north of the south line of their property. On cross examination she admitted that she and her husband cultivated part of Cherry Street adjacent to their property as a garden and gathered pears off the trees that stood in Main Street.

There was also evidence in reference to a proposal on the part of plaintiffs to file application with the county court for the opening of Main Street in which Mr. Hale their neighbor across the street was willing to join, and that he later removed his fence which had been standing in the center of Main Street. While such proposal was discussed no application was ever filed for that purpose.

The plat of Erwin's Addition and other exhibits, including photographs purporting to show the outline of Main Street, the physical condition thereof, and the obstructions and buildings erected thereon by de...