Roberts Pallet Co., Inc. v. Molvar

• Decision Date: 12 November 1997
• Docket Number: No. 21424,21424
• Parties: ROBERTS PALLET CO., INC., and Jack and Shirley Roberts, Plaintiffs-Respondents, v. Patricia MOLVAR, Defendant, and BBF, Inc., Junior Flowers, and David Brawley, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 586

955 S.W.2d 586

ROBERTS PALLET CO., INC., and Jack and Shirley Roberts Plaintiffs-Respondents, v. Patricia MOLVAR, Defendant and BBF, Inc., Junior Flowers, and David Brawley, Defendants-Appellants.

No. 21424.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 12, 1997.

Matthew E. Hill, Oliver, Oliver & Waltz, P.C., Cape Girardeau, for Defendants-Appellants.

Clinton B. Roberts, Tom R. Burcham, III, Roberts, Roberts, & Burcham, L.L.C., Farmington, for Plaintiffs-Respondents.

Before GARRISON, P.J., and PREWITT and CROW, JJ.

PER CURIAM.

After a non-jury trial, the trial court granted Plaintiffs permanent injunctive relief, enjoining Defendants-Appellants (hereinafter "Defendants") from blocking or interfering with Plaintiffs' ingress and egress to Plaintiffs' land. Additionally, Plaintiffs were awarded $500 in actual damages and $1,000 in punitive damages on Count I of their second amended petition, and $1 in nominal damages, and $1,000 in punitive damages on Count II. Defendant Patricia Molvar was dismissed with prejudice as a result of a stipulation entered into by the parties. Defendants appeal, presenting four "points relied on."

On July 22, 1992, Plaintiffs petitioned the court for a restraining order and a permanent injunction to prevent Defendants from obstructing certain roadways. A temporary restraining order was issued by the court on that date. On February 8, 1995, Plaintiffs filed their amended petition, whereby they added Jack Roberts' sons and daughters-in-law as plaintiffs, and requested punitive damages.

On August 2, 1996, Plaintiffs filed a second amended petition, dismissing one defendant. Count I of Plaintiffs' second amended petition alleged that Defendants installed a gate at the back of Defendant Molvar's property, unlawfully blocking Plaintiffs' passage along a certain road which "runs from Highway V in a generally northeasterly direction onto" the Molvar land, contending that they generally maintained the roadway and claimed a prescriptive easement because they and their predecessors had used the roadway for over 25 years. Count II alleged that Defendants unlawfully blocked Plaintiffs' passage along a roadway through Defendant BBF's property, in which Plaintiffs claimed a prescriptive easement by way of Plaintiffs' and their predecessors' use of said roadway for 18 years. Plaintiffs alleged damages resulting from losses suffered and additional expenses incurred in the operation of its business, as a result of Defendants' action.

Defendants' answer and counterclaim was filed July 31, 1992. Defendants denied that Plaintiffs had a prescriptive easement on the roadways, and counterclaimed that they had a prescriptive easement on roadways which traversed their land and Plaintiffs' land over which Plaintiffs had denied Defendants access by erecting gates at two points along the roadway. Count I of the counterclaim was later dismissed, and Count II was ordered to be tried separately from Plaintiffs' second amended petition. ¹

Plaintiffs-Respondents own 500 acres of farmland located adjacent to the southern border of the BBF property. Ingress and egress from Plaintiffs' property is across a road that runs across the BBF property and onto Plaintiffs' land. Additionally, Plaintiffs own property which is located adjacent to the Molvar property and have used a roadway across the Molvar property to access a state highway.

Point I states:

The trial court erred in granting a prescriptive easement to the Respondents because there was no evidence to support the court's order and the court erroneously applied the law in that the Respondents failed to meet their burden of proof as to the elements required to be proven for a prescriptive easement, and in fact failed to present any evidence that their use of the property was adverse.

We construe this point as directed only to Count II (the BBF property). It is singular in referring to "a prescriptive easement," and only the BBF property is mentioned in the argument. In the reply brief, Appellants did refer to Count I (the Molvar property), however, issues as to Count I (except for damages referred to in Points II and III) are not before the court. Error first set forth in a reply brief is not preserved for our consideration. See Hall v. Mo. Hwy. & Transp. Comm'n, 861 S.W.2d 720, 722 n. 2 (Mo.App.1993).

In review of a non-jury case, the judgment of the trial court is to be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When the parties have not requested findings of fact or conclusions of law and none are entered, "the trial court is presumed to have made findings in accordance with the decree entered and judgment will be affirmed under any reasonable theory supported by the evidence." Green Acres Enterprises, Inc. v. Freeman, 876 S.W.2d 636, 639 (Mo.App.1994). See also Rule 73.01.

As Defendants argument under Point I states that "the issue of adversity determines the outcome of this case," it is only necessary to review the evidence concerning whether Plaintiffs' use of the roadway was adverse. "A use is not deemed to be adverse where the user recognizes the authority of those against whom the use is claimed to prevent or prohibit the use." Homan v. Hutchison, 817 S.W.2d 944, 947 (Mo.App.1991). Put another way, "[a]ll that is required for the use to be adverse is non-recognition of the owner's authority to permit or prohibit the continued use of the land." Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 508 (Mo. banc 1993).

The roadway across the BBF property and onto 500 acres of farm and timber land owned by Plaintiffs was constructed in 1965 by the previous owner of Plaintiffs' property. At the time the road was constructed, the property now owned by BBF, Inc. was owned by Kerr-McGee Oil Company. Kerr-McGee gave permission for Joy Buxton to construct the roadway and to use the roadway as a private road for access to his property, but that permission was not expressly extended to Buxton's heirs, "whoever you sell to," nor to Plaintiffs specifically.

There was testimony that Plaintiffs were not given permission to use the roadway at the time Plaintiffs purchased their property. Nevertheless, they used it from 1979 to the time of trial. Other evidence of Plaintiffs' adverse use of the property was a "Private Road. No Trespassing" sign that was originally erected by Joy Buxton and maintained by Plaintiffs. This sign was placed on a tree at the road's intersection with the state highway. Such sign is evidence that Plaintiffs claimed control of the roadway, and did not recognize the authority of Defendants to prohibit their use of the roadway.

The judgment entered in this matter found "the issues in favor of plaintiffs ... and against defendants" regarding the BBF property. After this Court's review of the evidence, we cannot say that there was no evidence to support such order, nor that the court erroneously declared the law "as...