Patterson v. Null

• Decision Date: 29 April 1988
• Docket Number: No. 15215,15215
• Citation: 751 S.W.2d 381
• Parties: Eddie PATTERSON, Appellant, v. Eldon NULL, Virgie Null, Sylvester Bates, Carol Bates, and Ronald C. Polley, Respondents.
• Court: Missouri Court of Appeals

Page 381

751 S.W.2d 381

Eddie PATTERSON, Appellant, v. Eldon NULL, Virgie Null, Sylvester Bates, Carol Bates, and Ronald C. Polley, Respondents.

No. 15215.

Missouri Court of Appeals,

Southern District,

Division One.

April 29, 1988.

G. Christian Blaich, Terando & Welch, Poplar Bluff, for appellant.

Donald Rhodes, Bloomfield, for respondents.

HOLSTEIN, Judge.

Plaintiff Eddie Patterson appeals from an adverse judgment in a case arising out of a long-standing dispute over the existence, width, and course of a segment of a public road. The essence of Patterson's appeal is gleaned from the first three points relied on in his brief. The trial court's judgment denied Patterson the requested relief in his petition for quiet title, injunction, and trespass and granted defendants relief on Count I of their counterclaim. The decree declared a disputed segment of road to be thirty feet in width, declared that the segment bordered on a portion of defendants' adjoining land, enjoined Patterson from erecting fences within fifteen feet of the center line of the road, and further enjoined Patterson from erecting any fence where the road borders on the adjoining land. Patterson contends the judgment is not supported by competent and substantial evidence, is against the weight of the evidence, and erroneously applies the law because, as a matter of law, the width of a road established under § 228.190, ¹ as a result of public use and expenditure of public money and labor for ten years, only extends to the traveled portion of the roadway and the evidence only demonstrated that the traveled portion of the roadway was approximately thirteen feet in width. We reverse and remand.

In this court-tried case, our review is circumscribed by the rule that the decree will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We give due deference to the trial court's superior opportunity to have judged the credibility of the witnesses. Rule 73.01(c)(2).

Ray and Tessie Mae Patterson are now deceased. Tessie Mae Patterson was living and the plaintiff when the action was commenced. She died while the litigation was pending. The parties stipulated that Eddie Patterson would be substituted as plaintiff. He is the son of the deceased and is now owner of the southwest quarter of the northeast quarter and the southeast quarter of the northeast quarter of Section 18, Township 27 North, Range 8 East in Wayne County. ² Defendants Eldon Null and Virgie Null were formerly owners of the entire north half of the northeast quarter, so that the Patterson property joined the Null property on the south. Two small tracts have been conveyed by the Nulls from the northeast quarter of the northeast quarter; one to the Bates and another to Polley.

The road in question is known as Stanley Creek Road. It begins on the west at State Highway Z. A graphic depiction of the road is shown on Appendix A. ³ Following the road from Highway Z, it enters the southwest quarter of the northeast quarter and curves in a northeasterly direction to a point approximately 320 feet west of the east boundary of the southwest quarter of the northeast quarter. From there an old road bed curves north, while the main road follows an almost due east course to its eastern terminal at a point approximately 975 feet east of the western boundary of the southeast quarter of the northeast quarter. From the latter point, the evidence is conflicting as to whether the road turns north crossing into property owned by Bates and Polley, or turns south-southeasterly eventually going off the Patterson property on the east and ending in the Mingo Game Refuge. Viewing the evidence from the perspective of the result The exact location and width of that portion of the road which runs nearly directly east and west in the south half of the northeast quarter is at the crux of this litigation. Patterson claims this portion of the road runs nearly parallel to the north boundary of his property but is not on the line, leaving a narrow strip of land between the road and his northern boundary, across which defendants have been trespassing. Defendants contend the north side of that portion of the road abuts on the south boundary of their property. They contend that Patterson and others under his control have interfered with their use of the road and access to their property.

reached by the trial court, we will assume the road turns north, as shown in Appendix A.

The evidence at trial indicated that the road is not in good repair and has not recently been maintained by the county. The road has followed its present course since 1954. For many years prior to 1954, the road existed but veered north and crossed the north boundary of the Patterson property and onto the land owned by Null, then in "horseshoe" fashion had curved back to the south.

The Nulls have owned the property to the north of the Patterson property since prior to the change in the route of Stanley Creek Road in the early 1950's. At that time, Eldon Null had agreed with G.W. Sweet, the Pattersons' predecessor in title, that a straightened portion of the road would be placed on the line between the north half and south half of the northeast quarter, and would consist of a thirty foot strip immediately south of Null's boundary line on the Sweet property. The new portion of the road began on the west where the "old road bed" shown on Appendix A turned north. Apparently, the road segment constructed in 1954 ended on the east where the old road curved back south onto the Patterson property and is the same point referred to in the judgment as "the point where the roadway turns north on defendants Bates' and Polley's land."

Witness Lowell J. Faulkner served on the county court from 1951 until 1979. He recalled that Mr. Sweet came to the county court in about 1951 or 1952 suggesting that the road be straightened from where it crossed onto the Null property on the west to where it left the Null property on the east. According to Faulkner, the county court agreed with this arrangement and discussed a thirty foot right-of-way for the purpose of straightening out the road which formerly had a "horseshoe" curve in it. No written record was made of these events by the county court.

Herman Wilfong, who is now a Wayne County Commissioner, stated that as a grader operator for the county, he cut the road in about 1954 along a line of stakes which had been set up by Mr. Sweet. He laid the road out having a width of twenty-four to thirty feet from ditch line to ditch line. Wilfong stated that at the time there was a fence running along the north side of the road and as he ran the grader along the ditches, he tried to stay back a few inches so he would not disturb the fence. As was his practice, he pulled the dirt from the ditches to the center of the road, apparently to provide a slope for drainage. He was unaware where the boundary line was located.

There were no problems with the use of the road until after Patterson's parents became the owners in 1972.

In 1972, Wayne County obtained a judgment against the elder Pattersons enjoining them from interfering with the use of the road. The 1972 decree provides, in part, as follows:

The Court finds that the road in question as shown by Defendant's exhibit 1 ⁴ has been used by the public generally since 1952 and that Wayne County has expended funds in the upkeep and maintenance of the road continuously since that date; that the roadway was re-located in one or two places with the consent The Court further finds that the road in question as shown on Defendant's Exhibit 1 was and is a county road and is a public road and has been such since 1952 ...

of the then owners of the lands over which the roadway existed; ... that at times the road bed, some 12 feet in width, was in worse condition than at other times ...

WHEREFORE, it is ordered, adjudged and decreed that the temporary restraining order ... be made permanent; that defendants and all persons claiming by, through or under them, be permanently restrained and prohibited from erecting or from maintaining any sort of fence, gate or other obstruction across the roadway as described and shown on Defendant's Exhibit 1....

Since 1980, Patterson or persons acting on his behalf have attempted on separate occasions to impede the use or access of Bates and Polley to that portion of the road running nearly due east and west on or near the boundary of the two tracts. In 1980, a metal drain pipe under the road was removed and a ditch running beside the road was filled in by Patterson. In 1983, at the point where the road turns north onto the Bates and Polley property, wire and posts were erected by Patterson. After the wire and posts were removed, Patterson and a relative blocked the road with pickup trucks and stood in the road with clubs. Law enforcement officers were called to the scene to avoid any further escalation of the developing confrontation.

Thereafter, Patterson's mother filed her petition which, as amended, sought an injunction in Count I against a trespass upon the narrow strip of land she claimed to own running parallel to and on the north side of Stanley Creek Road. Count II of the petition sought to quiet title to Patterson's land. Count III sought damages for the alleged past acts of trespass by the defendants. The defendants counterclaimed seeking an injunction. Patterson, by that time substituted as plaintiff, was denied the relief requested in the petition. The defendants were granted an injunction.

The particular portions of the judgment from which Patterson appeals read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Stanley Creek Road which extends easterly from the northwest corner of the southeast quarter of the northeast quarter of section eighteen,...