Power v. Dean

• Citation: 86 S.W. 1100,112 Mo.App. 288
• Parties: POWER, Defendant in Error, v. DEAN et al., Plaintiffs in Error
• Decision Date: 18 April 1905
• Court: Court of Appeal of Missouri (US)

86 S.W. 1100

112 Mo.App. 288

POWER, Defendant in Error, v. DEAN et al., Plaintiffs in Error

Court of Appeals of Missouri, St. Louis

April 18, 1905

Appeal from Scotland Circuit Court.--Hon. Edwin R. McKee, Judge.

REVERSED.

Judgment reversed.

E. R Bartlett for plaintiff in error.

All of the instructions for the plaintiff ignore the fact that the defendants in going upon the roadway was under claim of right and hence not a trespass, and as no damage was proven, the verdict should have been for defendants. 63 Mo. 577. Defendants going on the roadway was not illegal and hence not a trespass and any damage done there does not constitute the act, an act of trespass. Cook v. Redman, 45 Mo.App 397; Davis v. Clark, 40 Mo.App. 515; Walker v ---, 14 Mo. 373. The presumption of a grant had already been raised, by more than ten years prior to, such payment. Use and enjoyment of an easement for a period of ten years, raises the presumption of a grant, which becomes absolute, unless rebutted. House v. Montgomery, 19 Mo.App. 170; Pitzmun v. Boys, 11 Mo. 338. The lines were defined by the fence and there is no question as to what land was intended (a strip one rod wide); the land having been in uninterrupted use for more than thirty years, all presumptions were against the owner and in favor of an absolute grant, and his occasional putting temporary gates thereon, did not prevent the running of the statute. 9 Am. and Ency. Law, 308, 309; Tait v. Deaton, 19 Ill. 294.

Smoot, Boyd & Smoot and J. M. Jayne for defendant in error.

Plaintiffs in error seem to contend that because Mrs. Becker permitted them to use certain portions of her land (at the places in controversy) for a convenience to get to certain timber that this use established a road. A use of this kind is revocable at the pleasure of the licenser. An adverse right or easement can never grow out of a permissive use. Nelson v. Nelson, 41 Mo.App. 130, 136; Pitzman v. Boyce, 111 Mo. 387, 19 S.W. 1104. Permissive use, however long, will not create an easement. Dunham v. Joyce, 129 Mo. 13, 31 S.W. 337. An adverse hostile claim must be asserted and brought home, but a mere license, convenience or privilege may be revoked after the lapse of many years. Hurt v. Adams, 86 Mo.App. 79.

OPINION

GOODE, J.

This action of trespass was brought before a justice of the peace. The complaint is in two counts. The first alleges that on May 1, 1903, and continuously since that time, plaintiff was the owner and in possession of the southeast quarter of the northeast quarter of section 32, township 66, range 10; that he had said tract of land inclosed by a wire fence on or about May 2, 1903, and the defendant unlawfully and voluntarily tore loose said fence, pulled up the posts at the southeast corner of the tract and for about five rods east of said corner and left the same down; that in consequence stock escaped into plaintiff's field and damaged his crops. Judgment for five dollars and twice the damage inflicted was prayed in accordance with section 4573 of the Revised Statutes of 1899. The second count of the complaint is exactly like the first except that it charges defendants with having torn down the wire fencing at the northwest corner of plaintiff's land, instead of the southwest corner.

The cause was removed to the circuit court on the ground that title to land was involved, where it was tried and resulted in a verdict for the plaintiff for five dollars, on which judgment was entered and the defendant appealed to this court.

All the parties are neighboring farmers and the controversy is in regard to a strip of ground which the defendants contend was a public road; or at least that they owned the right to travel over the strip--in other words, enjoyed an easement in it. Plaintiff, on the other hand, contends said strip is part of his land; and on that assumption he inclosed it with wire fences on the north and south sides, thus including it in his forty-acre inclosure and obstructing travel over it. The defendants cut down those fences and this action is to recover damages for the alleged trespass.

The controversy can be understood only by a study of the arrangement of the farms and roads in the locality; hence a plat of the neighborhood is inserted:

[SEE PLAT IN ORIGINAL]

Charles Power, the plaintiff, owns the forty-acre tract on which his name is printed. Immediately north of his farm is a tract of forty acres owned by the defendant John W. Dean, father of the defendant Wm. Dean southwest of Charles Power's tract lies one of forty-two acres owned by the defendant Joseph Power and north of Joseph Power's tract are seventy-eight acres designated as Peters' land. The strip of land in controversy, which varies in width from fifteen to twenty feet because of the irregular line of the fences on the west side, lies immediately west of Charles Power's tract and immediately east of the Joseph Power and the Peters farms. Prior to 1878 the tract now owned by Charles Power was owned by his mother, Mary J. Power, afterwards Mary J. Beckert. Her first husband (father of plaintiff) died in 1874 and two years later she married Nicholas Beckert. On August 29, 1878 she and Beckert gave a mortgage on the forty acres to John Shelley. This encumbrance was foreclosed and by purchase at the foreclosure sale J. M. Shelley became the owner of the land November 11, 1882. On December 20, 1888, Shelley conveyed to Charles Power, (the plaintiff) who previously had obtained a deed from his mother. Mary J. Beckert lived with her second husband but a few years when he went to Colorado hunting a home. She heard from him during the first year or two of his absence but no more. At the time of the trial of this action he had been absent and unheard of for about twenty years. Four or five farmers who were neighbors of Mrs. Beckert owned timber lands about two miles south of her home. Among them were Joseph Power and Wesley Tucker. The latter then owned the Dean land which he sold to Dean some thirteen years ago. About twenty-five years ago the country in that vicinity was largely unfenced, and the timber-owners had access to their timber lands to the south by the road which runs between the Irwin and the O'Day tracts shown on the plat. It will be seen that this road leads from another public road which extends east and west just south of Charles Power's land. While the country was open, persons living to the north of the Irwin and O'Day tracts and desiring to travel the road between those tracts, would cut across the southwest corner of Charles Power's tract (then owned by Mrs. Power-Beckert) and across the northeast corner of the Peter's land. The public road running along the north side of the Dean and Peters land communicated with the roads to the south through this open country. Immediately north of the Dean farm is the public school of the neighborhood, situated on an east and west highway and just east of the land marked as the Adams tract. When the proprietors began to inclose their farms, communication between the north and south roads was interrupted, thereby causing special inconvenience to the owners of those timber lands which lay, as stated, two miles or more south of the O'Day and Irwin tracts. To obviate this difficulty Wesley Tucker, who then owned the Dean farm, agreed to give a strip fifteen feet wide off the west side of his land for a roadway, provided a strip of the same width was procured from Mrs. Power, so there would be a road fifteen feet wide leading from the public road running by the schoolhouse and north of Dean's land, to the road which lay south of the Power tract and runs east and west. By obtaining access to the latter road over said strip the persons interested could pass from it into the road between the Irwin and O'Day tracts and thence to their timber, as they had before. Mrs. Beckert agreed to give the strip for a small money consideration. She was paid and set her fence back along the entire west side of her forty acres for fifteen feet, the present plaintiff assisting in the work. He knew of the contract with his mother and testified about it. In truth there is no material disagreement among the witnesses regarding the arrangement with Mrs. Beckert. Tucker set his fence back along the west line of his farm, and thus a roadway from the east and west road on the north to the east and west road on the south, was opened. The surface of the strip was cut up with gullies and...