Rozell v. Rozell, 6937
| Decision Date | 24 April 1950 |
| Docket Number | No. 6937,6937 |
| Citation | 229 S.W.2d 700 |
| Parties | ROZELL v. ROZELL et al. |
| Court | Missouri Court of Appeals |
Gideon & Mahnkey, Forsyth, Rogers & Rogers, Gainesville, for appellant.
J. R. Gideon, A. H. Blunk, Forsyth, Joseph C. Crain, Ozark, for respondents.
After an unsuccessful attempt to invoke the appellate jurisdiction of the Supreme Court, this case comes to our Court for decision.
The petition was filed in the Circuit Court of Taney County, Missouri, September 22, 1947. Plaintiff (appellant) sought a mandatory injunction requiring defendants (respondents) to remove certain obstructions on a private roadway, over land owned by defendants, over which plaintiff claimed he had prescriptive rights.
Defendants filed their motion to dismiss the petition of plaintiff, on the ground that such petition did not state facts sufficient to constitute a cause of action. The transcript does not show that any action was taken by the trial court on such motion. At any rate, and on the same day (October 22, 1947), defendants filed their answer, asserting that the matters alleged in the petition of plaintiff had been fully litigated in the County Court of Taney County, and, in addition, denying the allegations of such petition. The transcript is silent as to what took place in the County Court of Taney County. No reply is disclosed by the transcript and, on December 6, 1947, the case went to trial before the trial judge on the issues involved in the petition and answer.
Plaintiff introduced a number of witnesses, whose testimony tended to show that the particular roadway over defendants' lands had been subjected to use by plaintiff, or by his ancestors or transferors, as a highway for many years previously; while defendant produced a number of witnesses, whose testimony tended to show that the obstructions on the highway had been put thereon within a short time before the trial, and less than ten years previously thereto, and that the respective owners thereby showed their objections to their lands being so used.
It is almost impossible, from the testimony set out in the transcript, to determine exactly where the claimed prescriptive roadway was located, further than its general direction. For example, it ran about a half mile north along the east side of one of the defendants' land, and thence over the lands of other defendants, in a northeasterly direction, near a certain named school house, and thence to Highway 125. It was shown by many witnesses that plaintiff or his ancestors or transferors, used the particular highway for many years in going to the post office, to church, to the county seat and to market.
To show the utter confusion that existed in the mind of the trial court, we find in the transcript the following agreement of the parties, after the testimony was all in, to-wit: - Evidently, the trial judge, in addition to his other arduous duties, did not find time to make such inspection at the trial term, for the transcript shows that the case was passed over the April and June Terms.
On October 18, 1948, the trial court, among other things, in an order, provided that, 'a limited easement with gates for a private road by prescription eleven feet wide on the route petitioned by them over defendants' land and over the route which the judge of this Court viewed while vistiing the premises, the gates being 3 in number.'
Part of the order apparently suited plaintiff, but he did not like so well other provisions, denying a mandatory injunction, and permitting defendants to...
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