Schroer v. Brooks

• Decision Date: 30 July 1920
• Citation: 224 S.W. 53,204 Mo.App. 567
• Parties: HERMAN SCHROER, Respondent, v. A. R. BROOKS, Appellant
• Court: Missouri Court of Appeals

224 S.W. 53

204 Mo.App. 567

HERMAN SCHROER, Respondent, v. A. R. BROOKS, Appellant

Court of Appeals of Missouri, St. Louis

July 30, 1920

Appeal from the Circuit Court of Lincoln County.--Hon. Edgar B Woolfolk, Judge.

REVERSED.

Judgment reversed.

R. M Nichols for appellant.

(1) The deed is void for uncertainty in its description. King v Wood, 7 Mo. 389; Bell v. Dawson, 32 Mo. 79; Alexander v. Hickman, 34 Mo. 496; City of Jefferson v. Whipple, 71 Mo. 519; Fox v Courtney, 111 Mo. 147; State ex rel. v. Railway, 114 Mo. 1; Mudd v. Dillon, 166 Mo. 110; State ex rel. v. Burrough, 174 Mo. 700; Martin v. Ketchen, 195 Mo. 477; McCommack v. Parsons, 195 Mo. 91; Blumenthal v. Blumenthal, 251 Mo. 693; Schroeder v. Turpin, 253 Mo. 258; Cement & M. Co. v. Kreis, 261 Mo. 160. (2) Where the description in a deed is ambiguous and uncertain, and this appears upon the face of the deed, it cannot be cured by evidence aliunde. Campbell v. Johnson, 44 Mo. 247; Carter v. Holman, 60 Mo. 498; Mudd v. Dillon, 160 Mo. 110; Johnson v. Fecht, 185 Mo. 335. (3) A subsequent purchaser is not charged with constructive notice by the record of a deed, the description in which is so indefinite and uncertain that it would not enable the purchaser to identify the land sought to be conveyed. Gatewood v. House, 65 Mo. 663; Cass v. Oldham, 75 Mo. 50; Ford v. Unity Church Society, 120 Mo. 498; Land and Lumber Co. v. Franks, 156 Mo. 673. (4) The defendant Brooks would undoubtedly be an innocent purchaser as to all of the road located in the valley of Wolf Pen hollow, all of which is in section 30, because the deed describes the road as being in section 31. There was no evidence that either before or after the purchase by Mr. Brooks he knew of the existence of any part of the road, and the deed, describing the strip of land of twenty feet as being in section 31, would not even be constructive notice to him of the road located in section 30. Webb on Record Titles, secs. 147, 180; Gatewood v. House, 65 Mo. 663; Cass v. Oldham, 75 Mo. 50; Ford v. Unity Church Society, 120 Mo. 498; Land Co. v. Franke, 156 Mo. 673. (5) (a) Adverse possession must have been "hostile," i. e., "adverse," not in privity with the true owner. Plaintiff could not claim under his deed and under adverse possession. Pease v. Lawson, 33 Mo. 35. (b) Adverse possession must have been "exclusive," not, as shown in the instant case, traveled by others. This would be a "mixed possession." Burk v. Adams, 80 Mo. 515; Swope v. Hurd, 185 Mo. 325; Bailey v. Carleton, 12 N.H. 9. (c) Adverse possession must have been by "actual occupancy." This was not shown. Claimant passed over the road sometimes every week, and sometimes twice per week. He could have occupied it by a fence, which, in the absence of actual use, would have been actual occupancy. Gaines v. Saunders, 87 Mo. 557; Hunter v. Wethington, 205 Mo. 293. (d) Adverse possession must have been "actual open, visible and notorious." In the absence of a fence or payment of taxes, there could have been nothing but wagon tracks and occasional neighbors passing through the woods. This would suffice. De Graw v. Taylor, 37 Mo. 310; Fugate v. Pierce, 49 Mo. 447. (e) Adverse ossepssion must have been "unbroken." In the absence of a fence, the occasional use in driving through the twenty-foot strip was broken when not in use. Hunnewell v. Burchett, 152 Mo. 611; Baber v. Henderson, 156 Mo. 566. (6) While "color of title" of a defined body of land may be created by acts in pais, without writing, where as here a written instrument is relied on as giving "color of title," and the description does not identify the land with the degree of certainty essential to ascertain the boundaries and identity thereof, the deed lacks the first essential of "color of title." Fugate v. Pierce, 49 Mo. 441; Cooper v. Ord, 60 Mo. 431; Pharis v. Bayliss, 122 Mo. 124; Slicer v. Owens, 241 Mo. 319; Realty Co. v. Realty Co., 245 Mo. 419; Hanna v. Pulmer, 194 Ill. 41, 56 L. R. A. 93; Allmendinger v. McHic, 189 Ill. 308, 59 N.E. 517; Brennan v. Henry, 142 Ala. 698, 110 Am. St. Rep. 55; Napier v. Little, 137 Ga. 242, 38 L. R. A. (N. S.) 91; Tate v. Southard, 10 N. Car. 119, 14 Am. Dec. 578; Enfield v. Day, 7 N.H. 437, 28 Am. Dec. 360; Sowles v. Minot, 82 Vt. 344, 73 A. 1025; Humphries v. Huffman, 33 Oh. St. 395; Wyman v. Walker, 58 So. 403; Chilton v. White, 78 S.E. 1048; Southern I. & S. Co. v. Stowers, 66 So. 677. (7) Such possession, under claim of right, as would entitle him to recover for such possession, must be distinct from others and exclusive. The testimony showed that others traveled the several roads through the woods. Brown v. Railway, 101 Mo. 484; Elevator Co. v. Suburban Ry. Co., 135 Mo. 353. (8) Plaintiff would not be entitled to a right-of-way by prescription, because the user, in order to gain such right, must confine his way to a definite and specified line or way. Through section 31, there were three roads covering a space of 150 feet, neither shown to be on the twenty-foot strip. He cannot change the location, or deviate from the way, without the consent of the servient estate. 9 Ruling Case Law, section 35, page 775; Gentleman v. Soule, 32 Ill. 271, 83 Am. Dec. 264; Madison Township v. Gallagher, 159 Ill. 105, 42 N.E. 316; Shellhouse v. State, 110 Ind. 509, 11 N.E. 484; Schroeder v. Onekama, 95 Mich. 25, 54 N.W. 642; Nelson v. Sneed, 76 Neb. 201, 107 N.W. 255; Lever v. People, 33 Col. 493, 81 P. 270; South Branch R. Co. v. Parker, 41 N. J. E. 489, 5 A. 641; Montgomery v. Somers, 50 Ore. 259, 90 P. 674; Olsen v. People, 56 Cal. 199, 138 P. 21; Sprague v. Stead, 56 Col. 538, 139 P. 544; Smith v. Nofsinger, 86 Neb. 834, 126 N.W. 659. (9) A road cannot be established by prescription or limitation while the land over which the road runs is unimproved and unoccupied, over which people may travel at their pleasure. Stacey v. Miller, 14 Mo. 478; Liever v. People, 33 Col. 493, 81 P. 270; Smith v. Smith, 34 Kans. 293, 8 P. 385; Shaffer v. Stull, 32 Neb. 94, 48 N.W. 882; Graham v. Hartnett, 10 Neb. 517, 7 N.W. 280; Ottawa v. Yentzer, 160 Ill. 509, 43 N.E. 601; Friel v. People, 35 P. 676. (10) The fact that the plaintiff and others traveled through the wooded and uncultivated land occasionally, and that there were wagon tracks covering the space of one hundred and fifty feet in width on the southern part of said track, and that they converged into the hollow in one track, crossing the branch at different places, would not be sufficient notice of possession of plaintiff to charge defendant with plaintiff's claimed prescriptive right-of-way. O'Connell v. Chicago Ter. Ry. Co., 56 N.E. 357; Brusby Mound v. McClintock, 150 Ill. 129, 36 N.E. 976; Town of Bethel v. Prewitt, 215 Ill. 162, 74 N.E. 114; City of Chicago v. Galt, 224 Ill. 421, 79 N.E. 703; Schmidt v. Brown, 226 Ill. 590, 80 N.E. 1073; Watson v. Board of County Commrs., 80 P. 201. (11) Mr. Brooks is not liable for the trespass, if such there was, of Britt's employees. Fink v. Mo. Furnace Co., 82 Mo. 276; Knowlton v. Hoit, 67 N.H. 155, 30 A. 346; East St. Louis v. Giblin, 3 Ill.App. 219; Carter v. Berlin Mills Co., 58 N.H. 52, 42 Am. Rep. 572; Manchester v. Warren, 67 N.H. 482, 32 A. 763; Moore v. Sanborn, 2 Mich. 519, 59 Am. Dec. 209; Easter v. Hall, 12 Wash. 160, 40 P. 728; Pierrepont v. Loveless, 72 N.Y. 211; Wright v. Holbrook, 52 N.H. 113, 13 Am. Rep. 12.

Creech, Penn & Palmer for respondent.

(1) This cause having been transferred to the circuit court from the justice's court on the statutory affidavit, denying plaintiff's title to the road, it only became necessary for plaintiff to show possession of the road alleged to have been trespassed upon, to recover damages, if any. (2) Witnesses who lived in the vicinity of the road, knew the location of the road, and were able to describe it, and knew that respondent was in the possession of the said road and using it for the only purpose for which he had purchased the same, namely, to haul his produce to Wright City, Mo., and that Wright City was his place of market and banking business, and that respondent claimed the road as his own occupied it for the only purpose for which he had acquired it, and used it continuously, openly, visibly, notoriously and adversely as his road for egress and ingress from and to his farm, and from and to Wright City, to sell his produce and to buy his commodities, and do his banking business. (3) A private road may be acquired by the passing of a valuable consideration to the party owning the land from the party desiring the road, and the fact that a consideration passed may be shown by parol evidence, and the making and delivery of a deed is not necessary to show title to the easement. Powers v. Dean, 112 Mo.App. 289; Graham v. Olson, 116 Mo.App. 278 to 280; Rice v. Wade, 131 Mo.App. 343; Grandstiff v. Bland, 166 Mo.App. 41. (4) Title to a private road may be gained by prescription, user for the statutory period of ten years, raising the presumption of a grant at the beginning of such use. Graham v. Olson, 116 Mo.App. 278 to 280; House v. Montgomery, 19 Mo.App. 170; Autenreith v. Railroad, 36 Mo.App. 254; Power v. Dean, 112 Mo.App. 289; Gerstner v. Payne, 160 Mo.App. 289. (5) Long use of a private road, even though it is not shown how the user began, whether by license or by grant, will raise a presumption of right to the road and entitle a person claiming such road to damages for an injury to same. Autenraith v. Railroad, 36 Mo.App. 254. (6) Parol evidence is admissible to show use and conditions and explain the meaning of words in a description of a private road. Geisman v. Trish, 163 Mo.App. 308. (7) Long use of a private road raises the presumption of rightful use and the burden shifts to the defendant to explain how the user began, and in the absence of...