Sellers v. Swehla

• Decision Date: 14 September 1953
• Docket Number: No. 43614,43614
• Citation: 364 Mo. 285,261 S.W.2d 26
• Parties: SELLERS et al. v. SWEHLA.
• Court: Missouri Supreme Court

Page 26

261 S.W.2d 26

364 Mo. 285

SELLERS et al. v. SWEHLA.

No. 43614.

Supreme Court of Missouri, en Banc.

Sept. 14, 1953.

Motion to Correct Opinion Denied Oct. 12, 1953.

Fields & Low, Lebanon, Jean Paul Bradshaw, Springfield, for appellant.

Donnelly & Donnelly, Robert T. Donnelly, Phil M. Donnelly, Lebanon, for respondents.

ELLISON, Judge.

This cause is here on transfer from the Springfield Court of Appeals. It is an injunction suit brought by the plaintiff-respondents Sellers to restrain the defendant-appellant Swehla from fencing across the flat curved road, marked No. 5 on the plat below, cutting across the northeast corner of Swehla's land and swinging easterly to the northeast corner of Sellers' land. At both ends the curved road joins a newer straight road No. 1. Respondents Sellers contend the curved road has been a public road by prescription under Laws Mo. 1887, Sec. 57, p. 257, now Section 228.190, RSMo. 1949, V.A.M.S.

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

The injunction suit was brought by the Sellers in 1949 and was tried in the circuit court in February, 1950 and taken under advisement. While so pending on January 1, 1951 the Sellers by general warranty deed sold the land to a Mr. and Mrs. Gearhart, but the deed was withheld from record and the conveyance was not known either to the circuit judge or the defendant-appellant Swehla or his attorneys while the cause was under advisement. Thereafter in 1953 the Gearharts sold the land to the present owners, Mr. and Mrs. Messmore. For these reasons appellant Swehla's counsel contend the case is moot so far as concerns the respondents Sellers.

In May, 1951, almost fifteen months after the cause had been submitted and about four months after the Sellers had deeded the land to the Gearharts, the trial court entered a decree granting the injunctive relief prayed by the respondents Sellers, on the theory that the diagonal road was a public road. Defendant Swehla appealed to the Springfield Court of Appeals, where the plaintiff-respondents Sellers, still without disclosing their sale of the land to the Gearharts, appeared as the respondents and owners and asked that the decree below be affirmed.

But on December 3, 1952 the Court of Appeals reversed the decree of the circuit court, 253 S.W.2d 847, and held the diagonal road was not a public road because there had not been sufficient adverse user, and because it had been abandoned when the new public road No. 1 marked on the plat was opened on the quarter section line in 1903, in consequence of which Swehla had a right to build the fence across the road on his land, and the plaintiff-respondents Sellers were not entitled to an injunction thereagainst.

On that issue whether the diagonal road which defendant-appellant Swehla had fenced off was a public road, the trial court held it was by: (1) prescriptive right gained by continuous public use for 75 years, acquiesced in by the successive owners of the land over which it passed; (2) adverse possession and continuous use by the public for ten consecutive years prior to 1887; (3) similar adverse possession and use for more than ten years after 1887, and the expenditure of public money thereon during that time.

It is undisputed that defendant-appellant Swehla's 40 acres, the west one of the three 40-acre tracts, was rough, unimproved, uninhabited and unenclosed woodland, except a small pasture fenced off at the southwest corner. On plaintiff-respondents Sellers' 40 acres, next adjoining, a log cabin had been built and later a more modern residence further south. The old Stoutland-Richland flat curved or diagonal road marked No. 5 on the plat, started at the west end with two prongs, ran between the cabin and the house and continued easterly until it forked again at the east end as shown on the plat.

The opinion of the Court of Appeals, 253 S.W.2d 847, goes into the history of the road and includes the foregoing plat of the land involved. However, no map or plat was introduced at the trial. We use the one included in the opinion solely for descriptive purposes. It shows the present Stoutland-Richland straight line road marked No. 1 running along the north side of the three 40-acre tracts involved. It was established by the county court in 1903 and has since been in general use. The plaintiff-respondents Sellers own the S 1/2 SW 1/4 of Sec. 29. The defendant-appellant Swehla owns the SE 1/4 SE 1/4 of Sec. 30, next west.

Long prior to the establishment of that road the old Stoutland-Richland flat curved road, marked No. 5, had run northwesterly across both appellant's and respondents' land--respondents say since 1875. It was the one appellant had obstructed with a fence. The opinion, 253 S.W.2d loc. cit., 852(3-5), states it does not believe the evidence justifies a finding that the curved road was used by the public continuously for ten years prior to 1887. But it adds that supposing this were true the road was changed in 1903, as stated above, and the straight line road further north was substituted therefor and has been used by the public continuously ever since, and the old curved road has been abandoned. The abutting landowners donated the land for the new location, and the county court ordered it in, indicating the old meandering road was no longer a public road.

The Court of Appeals opinion further held the evidence failed to show the old road, across which appellant Swehla had placed the obstructing fence, had been kept up for public use at public expense and had been established by prescription by open notorious, exclusive, continuous, uninterrupted, hostile and adverse user with the knowledge and acquiescence of the owner for a long period of time. On the contrary it ruled the use of the road was permissive only, and not such as would prevent the present owner, appellant Swehla, from denying the existence of a prescriptive right in the respondents Sellers. Further, the opinion ruled the evidence did not justify a finding that the old road had been used continuously for ten years prior to 1887 as provided for by Laws Mo.1887, p. 257.

Sellers testified Swehla had seen him doing work on the diagonal road across the northeast corner of his [Swehla's] land, and that he [Sellers] had dragged it and put 80 wagon loads of rock there five or six years earlier, and 20 yards of gravel, all without objection by Swehla. Sellers also said Swehla had seen him dragging the road, but made no objection whatever. Swehla's first objection was when he, himself, built the fence across the road.

Further Sellers testified the road commissioner, or maintainer, Fulbright, had maintained it about a year before he was testifying. A previous maintainer, Hillhouse, since deceased, had done work on the road about 5 years earlier. Respondent Sellers said he had dragged the diagonal road across Swehla's corner with a horse drawn grader and had ditched it with shovels every year for nine years. The equipment he used belonged to the public--the road district or state. He had the grader there for two days. The diagonal road is 12 or 14 feet wide. In some places it is worn down 3 feet from use over many years.

Sellers said the diagonal road across the northeast corner of Swehla's land was the only way out to the public road [marked No. 1] from his property, and also the only entrance thereto. In this connection there appears on the foregoing map an opening marked 2, from the public road marked No. 1 on the north side of Sellers' land. Regarding that Mrs. Sellers testified it was a mere opening for hauling out hay and furnishing an exit to another small piece of ground they had further north, and would not serve for a regular road because the ground is too muddy. She said they had tried to dump rock and gravel there.

As heretofore stated, the Court of Appeals opinion held the evidence was insufficient to justify a finding that the flat curved road No. 5 had become a public road by continuous use, or prescription, for ten years prior to 1887, as required by Laws Mo.1887, Sec. 57, p. 257. That statute provided:

'All roads in this state that have been opened by any order of the county court, and a plat made thereof, and filed with the clerk of the county court of the county in which such roads are situated, and have been used as a public highway by the traveling public for a period of ten years or more, shall be deemed legally opened and established county roads, notwithstanding there may have been irregularities in the proceedings had to establish and open such road; and non-user by the public for a period of ten years continuously of any public road, shall be deemed an abandonment of the same: provided, that in all other cases than such as are hereinbefore provided for, no lapse of time shall divest the owner of his title to his land unless, in addition to the use of the road by the public for the period of ten consecutive years, there shall have been public money or labor expended thereon for such period.' [Emphasis ours.]

This statute remained the same for 22 years until changed by Laws Mo.1909, Sec. 15, p. 733, which dispensed with the filing of a plat, but retained a requirement that public money or labor be expended on the road for such ten year period of public use. Laws Mo.1917, Sec. 13, p. 450, further deleted the provision that such roads shall be public roads 'notwithstanding there may have been irregularities in the proceedings had to establish and open such road.' With these changes the present Section 228.190 remains substantially the same as it was in 1887.

Section 57 of the original 1887 Act has since been generally construed to mean that the prescription period of 'ten years or more' specified therein meant at least ten continuous years before the date of its enactment, in other words from 1877 or earlier, and that otherwise the statute would not run unless public money or labor had been expended thereon over the ten year...