Orvis v. Garms

• Citation: 638 S.W.2d 773
• Decision Date: 24 August 1982
• Docket Number: No. 12572,12572
• Parties: John ORVIS and Cheryl Orvis, Walter Trill and Ivy Trill, and Grace Judy, Plaintiffs-Appellants, v. Frederick GARMS and Hattie Garms, and Henry Garms and Susan Garms, Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 773

638 S.W.2d 773

John ORVIS and Cheryl Orvis, Walter Trill and Ivy Trill, and Grace Judy, Plaintiffs-Appellants, v. Frederick GARMS and Hattie Garms, and Henry Garms and Susan

Garms, Defendants-Respondents.

No. 12572.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 24, 1982.

Randall R. Sutter, Lebanon, for plaintiffs-appellants.

James E. Baldwin, Donnelly, Baldwin & Wilhite, Lebanon, for defendants-respondents.

MAUS, Chief Judge.

In this action the plaintiffs seek to establish easements for ingress and egress along the route of a road across property owned by the defendants. They also seek the removal of gates and installation of cattle guards. The trial court denied those requests. Their petition sought such relief on a variety of bases varying from public road to prescription. However, before this court the plaintiffs Judy and Orvis rest their claim upon prescription and the plaintiffs Trill upon necessity.

Review of this case does not hinge upon the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01. The testimony relative to the decisive issues is virtually without conflict. From the memorandum decision filed by the trial court it is clear that decision was not based upon a rejection of the undisputed testimony. Rather, that memorandum decision by clear inference demonstrates the court accepted that testimony but denied relief as a matter of law. A general outline of the salient facts follows.

The following is the geographic and historical background. Buck Earls owned 213 acres which was approximately 3960 feet north and south and east and west varied from 2015 on the north to 2538 feet at the widest point to 1658 feet on the south. It is bounded on the east by a slightly meandering public road. In July 1977 a survey was made and plat prepared dividing by east-west division lines the Earls' property into five tracts which vary in size from 25 acres to 68 acres. They were numbered tracts 1 through 5 from north to south.

In April 1952, by a contract for deed, Ralph H. Judy and Grace A. Judy, his wife, bought the NW 1/4 SW 1/4, the SW 1/4 SW 1/4 and the SE 1/4 SW of Section 20. That SE 1/4 SW 1/4 adjoined on the west the SW 1/4 SE 1/4 which was the center 40 acre tract of the Earls' property.

The road in question has the following general course. It leaves the public road and enters the southeast corner of what was the Earls' property. This is the southeast corner of tract No. 5. The road then meanders northwesterly and enters tract No. 4 approximately 300 feet east of the west line of tracts No. 4 and No. 5. It then angles northwesterly across the southwest corner of tract No. 4 and the northeast corner of the NE 1/4 NW 1/4 of Section 29 (a tract owned by one Haines). It enters the Judy property approximately 185 feet west of the southeast corner thereof.

The limited physical history of that road shown by the evidence is as follows. The road is a dirt and gravel well defined road. There was evidence that during the period in question it had been improved and maintained by graveling and frequent grading. It was in its present location in April 1952 when the Judys took possession of the property they purchased. Until the action of the defendants there was no obstruction on that road other than a cattle guard at the southeast corner of the Earls' property.

The house on the Judy property is located in its southeast corner. It served as the residence of Ralph Judy and Grace Judy and their family until his death in 1968. Grace Judy continued to reside in that house at the time of trial. At an undisclosed time Grace Judy conveyed 100 acres to her son Gerald Judy, retaining 20 acres where the home is located. Reserving a life estate, she conveyed that 20 acres to her son-in-law and daughter, plaintiffs John Orvis and Cheryl Orvis. In 1973 or 1974 they placed a mobile home near the house and have lived in it since that time.

From April 1952 to the time of trial the road was continuously used for ingress and egress to the Judy property for residential and agricultural purposes. There was also evidence the road was used and at times maintained by one Bill Agee who apparently lives or at least owns property beyond the Judy property. This included the removal of timber. There is no direct evidence concerning the origin of the road. In 1961 or 1962 a Mrs. Kennedy, who apparently lived in the house at the southeast corner of tract No. 5 put a strand of barbed wire across the road at that point. Ralph Judy drove right through it.

In November 1977 plaintiffs Trill bought tract No. 4. A gully runs north and south through tract No. 4, somewhat east of the center of that tract. In April 1978 they placed a mobile home on the west side of the gully and use it as their residence. Initially they reached that mobile home by traveling a distance on the road in question and then cutting generally north across tract No. 5. After the installation of the fences hereafter mentioned, they drove on that road through the gate between tracts No. 4 and No. 5. They presented evidence of unsuccessful attempts to build a road from their mobile home across the gully to the public road. They also presented evidence that it would cost $4,500 to successfully build such a road and of their inability to pay that price.

The defendants bought tract No. 5 in December 1978 and moved there in March 1979. They placed a mobile home near the house at the southeast corner of tract No. 5. Frederick Garms and Hattie Garms reside in the house and their son and daughter-in-law, Henry Garms and Susan Garms, live in the mobile home. The defendants acknowledge they saw the road in question when they bought tract No. 5. In October 1979 they fenced the perimeter of tract No. 5. They removed the cattle guard and placed gates for the road where it entered at the southeast corner of tract No. 5 and where it crossed the fence between tracts No. 4 and No. 5. The plaintiffs sought to compel the removal of these gates. Instead, the trial court found that none of the plaintiffs had a right to use the road and adjudged they stop doing so and that the defendants could lock the gates.

The trial court determined the case upon the basis of individual personal rights of the parties. Plaintiff Grace Judy was denied a prescriptive easement because she did not prove the demonstrated use of the road was not permissive. The plaintiffs Orvis were denied a prescriptive easement because they had not used the road for the prescriptive period of 10 years and were not entitled to tack the prior use. The plaintiffs Trill were denied an easement because they did not demonstrate a sufficient necessity therefor. However, the claims of the plaintiffs are not asserted as easements in gross, but as easements appurtenant; one appurtenant to the Judy property and one appurtenant to the Trill property. Kohlleppel v. Owens, 613 S.W.2d 168 (Mo.App.1981). They will be so considered.

The contention of the defendants that the claims were not so asserted before the trial court is without foundation. The petition alleged the road was a free and public road for over 75 years and refers to the same as access to their properties. There was admitted in evidence, without objection, legal descriptions of a dominant tenement and a servient tenement and the use made of the road for the benefit of the dominant estate. "The existence of a dominant tenement resolves any doubt as to whether an easement appurtenant or an easement in gross was intended, as an easement in gross has no dominant tenement." Three-O-Three Inv., Inc. v. Moffitt, 622 S.W.2d 736, 739 (Mo.App.1981). Nor is there substance in the defendants' assertion there was no conveyance of an easement from Judy to the Orvises. Without objection Mrs. Judy testified in substance she conveyed the dominant tenement to the Orvises. An easement appurtenant even though created by prescription passes with the transfer of the land, although not specifically mentioned in the transfer. Beldner v. General Electric Company, 451 S.W.2d 65 (Mo.1970). Certainly there is privity between those parties within the doctrine permitting tacking of use. Guerin v. Yocum, 506 S.W.2d 46 (Mo.App.1974).

The elements that establish an easement by prescription have been outlined and considered in detail in countless decisions. See Carpenter-Union Hills Cem. v. Camp Zoe, Inc., 547 S.W.2d 196 (Mo.App.1977); George v. Dickinson, 504 S.W.2d 658 (Mo.App.1974). The requirements have been summarized: "An easement by prescription may be established by use which is shown to have been continuous, uninterrupted, visible and adverse for a period of ten years." Guerin v. Yocum, supra, at p. 47. The proof presented in regard to the easement appurtenant to the Judy property meets those requirements. Moravek v. Ocsody, 456 S.W.2d 619 (Mo.App.1970).

The defendants argue the petition cannot support a finding of such an easement because it does not allege the pleaded 30 years of open, notorious, and continuous, under a claim of right, use of the road was adverse. This belated attack must fail. The petition did pray for a declaration of an easement by prescription. The allegations referred to, when considered in connection with the prayer, clearly carry the connotation of an adverse use. Further, the issue of an easement by prescription was clearly tried by the implied consent of the parties. Rule 55.33.

The defendants next argue that proof fails because there was no affirmative evidence the long standing use of the road was adverse. This argument is refuted by an endless line of cases. "However, in the absence of some showing that the use was permissive in its origin, it is well settled that when one claims an easement by prescription and shows an open, continuous, visible, and uninterrupted use for the statutory period, the burden is cast upon the land owner to show that the use was permissive, rather than adverse, if...