Sanford v. Kern

• Decision Date: 27 November 1909
• Citation: 223 Mo. 616,122 S.W. 1051
• Parties: SANFORD v. KERN.
• Court: Missouri Supreme Court

122 S.W. 1051

223 Mo. 616

SANFORD v. KERN.

Supreme Court of Missouri, Division No. 1.

November 27, 1909.

1. EASEMENTS (§ 36) — WAY — SUFFICIENCY OF EVIDENCE.

Evidence in a suit to establish a right to a private way across defendant's land and to remove obstructions placed in the way by defendant held sufficient to establish such way originating in a contract with one in possession of the land, ratified by the owner, and adverse user of the right, openly and uninterruptedly, for more than 10 years.

2. EASEMENTS (§ 9) — ADVERSE POSSESSION — CLAIM UNDER CONTRACT.

The claim to an easement for a passageway across land by virtue of adverse possession for more than 10 years can only be invoked by a

person claiming by right as time will not ripen a bad title into a good one, unless possession is under a claim of right.

3. EASEMENTS (§ 12) — CREATION BY CONTRACT — EXECUTION BY CONTRACT.

Where the owner of land gives an easement for a passageway across his land on condition that the grantee build a fence near the grantor's line separating the land over which the easement extends from the remainder of the tract, and the grantee builds the fence, and it is accepted by the grantor, the contract is performed, and the consideration passes.

4. EASEMENTS (§ 12) — CONTRACTS — ADEQUACY OF CONSIDERATION.

A boundary fence becoming out of repair, so that cattle on the adjoining lands broke through the fence, the owner of the land contracted with plaintiff to allow him a passageway along the boundary line, providing he would build a fence parallel to the line fence. Held, that the building of the fence and the furnishing of material for it, and the benefit conferred upon the grantor, by preventing stock from trespassing, was an adequate consideration in law for the grant of the easement.

5. EASEMENTS (§ 8) — CREATION — PRESCRIPTION.

Adverse possession sufficient to establish a right to a passageway across land is not destroyed by the use of the passageway by others with the acquiescence of the person claiming under adverse possession, as, under Rev. St. 1899, § 9468 (Ann. St. 1906, p. 4346), private roads shall be free to be traveled by all persons as a public road.

6. EASEMENTS (§ 9) — ADVERSE POSSESSION — CLAIM OF RIGHT.

Use of a passageway across land under a contract allowing such use is under an adverse claim of right, where the person using it performs a condition of the contract requiring him to build a fence along the passageway, and keeps the way in repair and uses it continually and claims the passageway as a right, whenever a question is raised relating to his right to use it, and such claim was recognized by the owners of land over which the way extended.

7. EASEMENTS (§ 5) — PRESCRIPTION — ADVERSE POSSESSION.

The right to a way by prescription may be established in the same way as the title to land, to wit, by adverse possession under a claim of right uninterrupted for 10 years.

8. EASEMENTS (§ 26) — RIGHT OF PASSAGE — CREATION BY CONTRACT — REVOCATION — ESTOPPEL.

An easement for a passageway across land, though without consideration at its inception, may not be revoked at will where the licensee was expected to go to great expense in order to enjoy it, and where that expense had been incurred, as in such case, equitable estoppel arises, and the easement may not be destroyed by the act of the licensor alone.

9. EASEMENTS (§ 12) — AUTHORITY TO ESTABLISH BY CONTRACT.

The right to an easement for a passageway across land is not affected by the fact that the person with whom the licensee contracted for the easement did not have the legal title to the land, where she was in possession and clothed with the powers of an apparent owner, and exercised those rights by leasing the land to tenants and enjoying the returns, and the legal owner, who was her father, had knowledge that she was dealing with and contracting in relation to it, and this was done with his acquiescence, and the licensee thought he was dealing with the owner and such person subsequently became the owner, and all subsequent owners of the land claimed under such person, and, when they bought the land, had actual notice of the licensee's claim by the fact that the passageway extended through an open fenced lane across the land.

Appeal from Cape Girardeau Court of Common Pleas; B. F. Davis, Judge.

Action by Linus Sanford against Joseph Kern. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with direction to enter judgment for plaintiff.

Oliver & Oliver and Linus Sanford, for appellant. Wilson Cramer, for respondent.

LAMM, P. J.

Suit to establish a right in plaintiff to a private way in Cape Girardeau county, and to remove obstructions put in the way by defendant. The ultimate facts relied on to show a user as of prescriptive right, or adverse possession under a claim of right, are set forth in the petition with sufficient particularity to permit the proof put in. As no point is made on the sufficiency of the petition, it will not be further noticed. The answer raised the general issue. Judgment for defendant. Plaintiff appeals.

There is little or no dispute on material facts. In 1889 plaintiff owned a body of timber land (the rise of 100 acres) in section 30, township 32, range 13, with no access to it by public road or private way. A half mile east, following the meandering of Hubble creek, ran an old north and south public road, known as the "Jackson and Pocahontas road." Between that road and the south part of plaintiff's woodland lay a tract of cultivating land we will call "A." North of and bordering "A," between the north part of plaintiff's land and said public road, lay another tract we will call "B." There was an east and west partition fence between "A" and "B." At that time one Flynn owned tract B, and Nannie E. Baldwin, the daughter of Thomas W. English, was in possession of tract A. Whether she was covert or discovert at the times in hand is dark. As a matter of fact she seems to have claimed the land, but the legal title was in her said father. She did not reside on it, but for several years, by her father's consent, occupied it through her tenants, and, with his consent exercised acts of proprietorship over it, contracting with relation thereto, and enjoyed the rents and profits. She was commonly reputed to be the owner, and Sanford thought she was. Evidently she held the land under some domestic arrangement not fully developed. Whether by a gift resting in parol accompanied by possession, or whether it was turned over to her because of, or anticipating, a will devising the land to her, or some undisclosed contract, we do not know. At any rate, about five years later Mr. English died. At that time it was found he had made his will giving Nannie tract A. In 1889 the party fence between tracts A and B had run down at the heel through decay and inattention. Lured by growing crops and a broken fence, the Flynn stock trespassed on the crops of Nannie's tenant, and wrangles and squabbles sprang up between the Flynns and her tenant, Fullenwider. At this immediate time Sanford was clearing his woodland to make a farm of it, and desired a right of way opening it to the Jackson and Pocahontas public road. To that end, he opened negotiations with Nannie, thinking her the owner of tract A, and made a proposition to her to furnish the labor and material for a 10-rail fence in consideration of a private way 30 feet wide and half a mile long off of the north end of tract A, running from his woodland to said road. The proposition was accepted by her. There is evidence indicating it was considered by her and her friends, including her father, a good proposition, in that it would furnish her protection against the ravages of the Flynn stock, fence tract A securely in, and keep the cows out of her corn. Accordingly she instructed her tenant, Fullenwider, to stake out a strip a half mile long and 30 feet wide off said north end, and act in her stead in accepting the fence Sanford was to build as per contract. Presently, at his own expense in labor and rails, he built a new 10-rail fence on the line marked off by Fullenwider, "every corner locked" or "cross-railed." We assume it was an old-fashioned, "stake-and-rider" worm fence. Mrs. Baldwin testified that Sanford was to furnish all the rails, but failed to do so, using some rails out of her half of the old partition fence. As she did not live on the place, the record indicates that her testimony in that behalf was not based on personal knowledge. Contra, there is substantial evidence from her tenant, Fullenwider, and from parties who built the fence for Sanford, that he furnished his own rails from his own land, fully performed his contract, and that Fullenwider accepted the fence. There is other uncontradicted testimony to the effect that a 30-foot lane was then opened, fenced on both sides and remained an open, used lane from 1889 until a year and a half before the filing of the petition in this cause, August 29, 1905, say 14 years. The negotiations between Sanford and Mrs. Baldwin seem to have been conducted by correspondence (now lost) and the contents of letters were proved by parol. Fullenwider testified without contradiction that the old line fence was very bad; that, when he rented the farm from Mrs. Baldwin, the poor fence was objected to by him; that she promised to fix it, but did not; that the Flynn stock jumped in and annoyed him; that in September, 1889, (quoting) "she wrote me that Mr. Sanford had made her a proposition that he would build her a fence if she give a road through here. She asked me what I thought about it, in a letter." In response to that letter he told her "it would be a very good thing because they were wrangling about the stock." He further testified: "I know Mrs. Baldwin was to give Mr. Sanford 30 feet of land through there for that fence, and I know that because I had letters from her." Again, he testified: "She wrote me that if...