Schuricht v. Hammen
| Decision Date | 07 December 1925 |
| Citation | 277 S.W. 944,221 Mo.App. 389 |
| Parties | OTTO SCHURICHT, RESPONDENT, v. JOE HAMMEN, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Cole County.--Hon. Henry J Westhues, Judge.
REVERSED.
Judgment reversed.
D. W Peters for respondent.
H. P Lauf for appellant.
Trimble, P. J. absent.
This is an action, originating before a justice of the peace, seeking to recover of the defendant one-third of the cost of certain work performed in straightening and changing a certain private road running over and through the land of plaintiff. There was a verdict and judgment in favor of plaintiff in the sum of $ 31.33, and defendant has appealed.
The facts show that the parties hereto are half-brothers; that plaintiff and defendant reside on their own land one-fourth and three-fourths of a mile, respectively, from the nearest public highway; that one Kratchmer resides on his own land between plaintiff and defendant; that in reaching the public highway the three parties, and those under whom they hold, for over forty years have used jointly a private road which runs through a part of the land of plaintiff and a portion of the land of defendant. This private road is the only means the three parties have of reaching the public highway. It is unnecessary for plaintiff to use any part of the road on defendant's premises in order to reach the public highway, but that part of the road on defendant's premises is used by himself and Kratchmer. Other neighbors use the private road but these have direct access to the public road from their own premises. Plaintiff and defendant have lived upon and owned the places where they now reside for a period of respectively nine and sixteen years. The road between plaintiff's house and the place where it joins the public road and at a point where it traverses his land, had a slight curve in it for a short distance where it ran over a small hill. The road where it passed over the hill was composed of clay, gravel and rock and was in a poor condition. While it could be used it was rough and hard to get over. Sometimes it was almost impossible to use it.
Plaintiff requested defendant and Kratchmer to assist in the repair of the road where it went over the hill. Defendant refused, whereupon plaintiff told him that he was going to change the road and defendant, thinking that he meant that the was going to close it, said, "the road can't be closed," and plaintiff replied, "all right, I know it, but you travel the road along the line." Defendant then said, "You fix it so I can travel it." Defendant had done no work on the road for eleven years.
After defendant refused to assist in repairing the old road, plaintiff and Kratchmer proceeded to make the new road and so changed it that instead of the roadway curving and going over the hill, it now runs along the side of the hill. A fence was placed across the old road at the point where the road was turned. The point of contact between the private road and the public highway was not changed. Plaintiff did not request defendant to assist in changing the road to its new location. Plaintiff testified that he moved the road because defendant refused to help repair the road over the hill. There was some other evidence that the straightening of the road improved defendant's property. There was evidence that the expense incurred in establishing the road in the new location was not greater than had the old road over the hill been repaired, and that the change in the location made a better and more satisfactory road and easier to keep and maintain. The evidence shows that the reasonable value of the work done upon the road was $ 94 and that one-third of this amount, which plaintiff seeks to have defendant pay, was $ 31.33.
Defendant contends that his demurrer to the evidence should have been sustained. His theory is that the road where the repairs and changes were made was a private road owned by plaintiff and in which defendant had an easement. From a reading of plaintiff's brief it is not possible to tell exactly what he contends as to the relation of the parties. He refers to "a joint or partnership use of this road" by plaintiff, defendant and Kratchmer "as a way of necessity." Of course, in a technical sense, there was no partnership relationship existing between the three parties. Defendant and Kratchmer were either mere licensees or had an easement of a right of way in the road running over plaintiff's land. It is not claimed that where one travels over a road of...
To continue reading
Request your trial
-
Bell v. Wagner
... ... 212, 127 S.W. 611. (4) Defendant is liable as owner ... of dominant estate. Stotzenberger v. Perkins, 332 ... Mo. 391, 58 S.W.2d 983; Schuricht v. Hammen, 221 ... Mo.App. 389, 277 S.W. 944; 19 C. J. 980, sec. 228; 19 C. J., ... 981, sec. 230; 17 Am. Jur. 1003, sec. 108; Jackson v. Bruns, ... ...
-
Paola Lodge No. 147, I. O. O. F. v. Bank of Knob Noster
...to keep the subject of the easement in repair but that duty rests on the plaintiffs, the owners of the dominant tenement. [See Schuricht v. Hammen, 221 Mo.App. 389, general rule.] Plaintiffs insist that it is not an easement that is involved but a mutual obligation resting upon each owner t......