Schroer v. Brooks

• Citation: 204 Mo. App. 567,224 S.W. 53
• Decision Date: 30 July 1920
• Docket Number: No. 16370.,16370.
• Parties: SCHROER v. BROOKS.
• Court: Court of Appeal of Missouri (US)

224 S.W. 53

204 Mo. App. 567

SCHROER v. BROOKS.

No. 16370.

St. Louis Court of Appeals. Missouri.

July 30, 1920.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfoik, Judge.

Action by Herman Schroer against A. R. Brooks. Judgment for plaintiff, and defendant appealed to the Supreme Court (200 S. W. 1068), which transferred the cause to this court. Reversed.

R. M. Nichols, of St. Louis, and Charles Martin, of Troy, for appellant.

Creech, Penn & Palmer, of Troy, for respondent.

BARNES, C.

This action was begun in 1913 before a justice of the peace of Lincoln county, for damages for trespass upon a roadway—

"beginning at a point at Big creek at the mouth of Wolf Pen hollow and running in a southeasterly direction up said hollow for a distance of about one-half mile; thence east up the hill for about one-fourth mile; thence south to the line running north and south between the lands of Robert Schroeder and Herman Wernex; thence south along said line between said lands of Robert Schroeder and Herman Wernex as near as practicable for the purpose of locating a road, the same to be 20 feet wide for the entire distance as above described, and all being situate in sections 30 and 31, township 48, range 1 west, in Lincoln county, Mo."

Defendant appeared therein and filed an affidavit averring that the title to real estate was involved, and the cause was thereupon ordered to be certified up to the circuit court of Lincoln county, which was accordingly done, and upon the trial in that court, judgment for $1 was awarded to plaintiff, from which an appeal was taken to the Supreme Court, basing the jurisdiction of that court solely upon the allegation that title to real estate was involved therein, within the purview of section 12, article 6, Constitution of Missouri; but, it being determined that that court did not have jurisdiction, the cause was transferred to this court. Schroer v. Brooks (Sup.) 200 S. W. 1068. The cause was tried before the court without the intervention of a jury; defendant demurred to plaintiff's evidence, and in this court challenges the sufficiency of the evidence as supporting each and every element of a prescriptive right of way and the inadmissibility in evidence of the deed hereinafter referred to, and that the defendant is not liable for the trespass because committed by an independent contractor.

In compliance with the time-honored rule that, in reviewing a demurrer to the evidence, plaintiff should enjoy the most favorable view of his case that the evidence warrants and of every reasonable inference therefrom, we find the evidence substantially shows the following state of facts: Charles A. Schroeder, by deed dated October 10, 1870, acknowledged October 10, 1877, and recorded November 30, 1877, conveyed to Robert E. Schroeder "all of lot 1, northwest quarter, containing 80 acres, in section 31, lot 1,.southwest quarter, section 30, containing 80 acres, and the northwest quarter of the northeast quarter of section 31, and the southwest quarter of the southeast quarter of section 30 [and other lands], all in township 48, of range 1 west," in Lincoln county. By general warranty deed, dated November 25th, acknowledged November 30th, and recorded December 16, 1895, Robert 1."Al. Schroeder and wife undertook to convey to Herman Schroer the roadway, by a description identical with that of plaintiff's statement, except that section 30 is not mentioned in the deed. By deed dated and acknowledged October 30, 1906, and recorded November 1, 1906, Robert E. Schroeder conveyed, "subject to all existing streets and alleys, public roads and highways," the lands acquired from Charles A. Schroeder to J. B. Erhardt. In July, 1907, Erhardt conveyed to John A. Zellers, and in October, 1910, Zellers conveyed to Arlington R. Brooks, of St. Louis, said 240-acre tract, without any reference in either of said conveyances to any streets, alleys, roads, or highways.

Plaintiff appears to have owned the west half of the southwest quarter of section 30, his house being located thereon on the north side of Big creek, which appears to run almost easterly at the center of the southwest quarter of section 30, and Wolf Pen hollow empties into Big creek just to the right of the center of said southwest quarter. Plaintiff had other outlet to his land, but transacted his business at Wright City, at which point he banked, traded, and marketed, and in doing so traversed the route mentioned in his statement once or twice a week, and sometimes every day, during the thirty-year period prior to the institution of the suit, in going from his house to the public road leading to Wright City. Charles and Robert Schroeder accompanied plaintiff "all the way through," as Robert showed plaintiff the location of the road, and they marked it out; deed was made and plaintiff paid a dollar an acre, $6, all that was asked, to his grantor, cut out the road in section 31, and for last eighteen years worked the road from Wolf Pen hollow to Gulky land, and claimed it as his own. The mouth of Wolf Pen hollow is some hundred feet wide, at which place there are three forks of the roadway; the middle one being the one used by plaintiff the greater portion of the time, and claimed by him, although he occasionally used one of the others. The particular tract of land over which the route used by plaintiff lay was not fenced, although other lands in the neighborhood were; adjacent lands were occupied, and a part of the Brooks farm had at one time been fenced.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The evidence pertaining to the trespass is that of Sam Britts, colored, who testified that he was cutting some timber on the Brooks land, close to Schroer's, near the roadway on the Brooks land; that he was in charge, and employed one of his boys and his nephew, and that he (Britts) was employed by Brooks; that the boys cut trees across the road "they cut it our," which were being cut for Mr. Brooks. Britts was clearing, and the boys cutting logs, and that whatever brush or timber that was cut by him and the boys was for Mr. Brooks, and that whatever timber might have fallen in the road was cut by him and the boys for Brooks. Upon cross-examination Britts further testified that he had an arrangement with Brooks to give him so much per hundred feet for logs for going there and cutting timber on his land; that he was told to cut logs anywhere on the land, and that he had the right to go and cut the logs where he pleased, using his own judgment; that he hired the boys himself, paid them himself, and that Brooks had nothing to do with paying the boys or hiring them, but employed him and paid him when he finished the job; that Brooks told him to cut what would make good saw logs. The boys cleaned up everything after cutting down the trees; that they did not leave any obstruction to interfere with Schroer getting over the road. The trees cut would measure 12 or 14 inches through; that he was notified by Mr. Schroer about the road being blocked and went with the boys and cleaned it up; that he never had any conversation with Mr. Brooks relative to the road; that the tree that was cut across the road was near the creek, and on recross-examination he further testified that he was to be paid so much a thousand feet or so much a tie, and hired his own hands; that Brooks had no right to tell him what to cut, but that it was left to him (Britts) to cut so much as in his judgment was good for saw logs; that he employed his own help, selected his own timber, and that Brooks did not direct him to cut any particular trees or logs, but merely to cut what would make good saw logs; that he had no talk with Brooks relative to the road before or since the institution of the suit. The plaintiff told the son and nephew of Britts, while they were cutting timber. he would like to have them keep the road open, and they said, "The boss told them to cut wherever they pleased." Defendant was in St. Louis.

When the deed from Robert E. Schroeder to Herman Schroer was introduced in evidence, defendant objected to its admission for the reason that the description therein contained is inadequate and uncertain, and the deed void for that reason, and that the effort to describe the land, shown to be conveyed by the deed, was all placed in section 31, and objected that the proof did not correspond with the allegations, to which counsel for plaintiff responded:

"We are not insisting really on this deed to prove our right to this land in question; we merely offer the deed to show there was a consideration paid,"and, if there is any indefiniteness in the way of description, we offer to supply it by parol testimony."

Respondent has put us in mind of section 7461, R. S. of Mo. 1909, that on the trial in the circuit court of an action of trespass removed from the justice court, as in this case, the plaintiff will only be required to prove himself entitled to or in possession of the premises on which the trespass is alleged to have been committed, so far as the defense of the want of title is concerned. Now, a statement in a justice court is not required to he drawn with that technical precision which might be requisite in the circuit court, yet it must be precise enough to apprise defendant of the cause of action and bar another action. Iba v. Railway, 45 Mo. 469; Butts v. Phelps, 79 Mo. 302; Lin v. Railway, 10 Mo. App. 125; McCrary v. Good, 74 Mo. App. 425; Darnell v. Lafferty, 113 Mo. App. 282, 88 S. W. 784; Hall v. Railway, 124 Mo. App. 661, 668, 101 S. W. 1137; Dalton v. Railway, 134 Mo. App. 392. 395, 114 S. W. 561.

The statement in this case followed exactly the description in the deed; its sufficiency was never challenged, but, on the contrary, was so definite as to cause defendant to believe title to his real estate to be involved, nor was the sufficiency of the statement attacked in the circuit court, when it was amended by inserting section 30 t...