Sellers v. Swehla
| Decision Date | 03 December 1952 |
| Docket Number | No. 7061,7061 |
| Citation | 253 S.W.2d 847 |
| Parties | SELLERS et ux. v. SWEHLA. |
| Court | Missouri Court of Appeals |
Jean Paul Bradshaw, Springfield, Fields & Low, Lebanon, for appellant.
Donnelly & Donnelly, Robert T. Donnelly and Phil M. Donnelly, Lebanon, for respondent.
From a decree granting a permanent injunction restraining defendant from placing a fence across a road, he has appealed.
This is an equitable proceeding, and is heard de novo in this court and we render such decree as we think should have been rendered by the chancellor, at the same time, according due deference to the advantage he had in being able to hear and observe the witnesses as they testified. Howell v. Reynolds, Mo.Sup., 249 S.W.2d 381. Milgram v. Jiffy Equipment Co., Mo.Sup., 247 S.W.2d 668. Marshall v. Callahan, Mo.App., 229 S.W.2d 730.
The original petition was filed April 28, 1949. The first amended petition, upon which the case was tried, was filed May 21, 1949, and a trial was had beginning February 17, 1950. At the conclusion of the trial, the court took the case under advisement and on the 7th day of May, 1951, made its findings of facts, conclusions of law and entered its decree.
Briefly, the petition states that the plaintiffs live on the south half of the S. W. 1/4 of Section 29, Township 36, Range 14 in Laclede County. That they are engaged in farming, dairying, etc., that there is a roadway from the west side of their premises in a northwesterly direction of approximately 300 yards in length; that said roadway 'is the only means of travel from their said premises to said county public road' and that they travel this roadway in marketing their products, etc., 'that there is no other roadway leading in any direction' from their premises.
It is further alleged that defendant owns the forty acres directly west of them and through which said road runs; that it has been continually and adversely used for 65 years 'by the traveling public with the knowledge of defendant and his predecessors in title; that public money and labor has been expended on said roadway for a number of years; * * *.' That the defendant on April 19, 1949, placed posts and wire across this road within a few yards of plaintiffs' premises, closing the roadway and preventing the plaintiffs 'from using said roadway as a means of ingress and egress' to and from their premises. It is then specifically alleged that plaintiffs 'have no other means of ingress and egress' to their property except over this roadway and that unless said posts, wire etc., are removed, that plaintiffs 'will have no means of ingress and agress' to and from their premises, and that unless the court enjoins the defendant from obstructing this roadway, the plaintiffs 'will sustain irreparable injury, * * *.'
An injunction is prayed for. The record shows that upon the filing of the petition, a temporary injunction had been issued and a bond given. After the filing of the first amended petition, a motion was filed to dissolve the temporary injunction, which, after a hearing, was overruled by the court.
The record is long, consisting of two volumes of nearly 450 typewritten pages We will refer to the parties as plaintiffs and defendant.
The plaintiffs owned 80 acres of land in Laclede County, Missouri, described as the S 1/2 of the SW 1/4 of Section 29, Township 36, R 14, and the defendant owned 40 acres of land directly west of plaintiffs' west 40, and described as the SE 1/4 of the SE 1/4 of Section 30, Township 36, R 14. No plat or map was introduced in evidence to help clarify verbal descriptions of the relative positions of these tracts of land, the roads traversing them, etc. But the following plat shows the general outline, as shown by the evidence, and will, (we hope) aid the reader in understanding the statement of facts.
These three forties lay in a row east and west--the west 40 belonging to the defendant. Years ago, the old Stoutland-Richland road traversed them, entering the defendant's 40 somewhere along its north line, proceeding in a southeasterly direction until it crossed the west line of plaintiffs' west 40, then in an easterly and northeasterly direction, finally leaving plaintiffs' east 40, crossing the east line somewhere near the northeast corner thereof. This road seems to have had trails leading from it, one of them going south across defendant's 40 and one branching off to the south or southeast, possibly in plaintiffs' east 40. These trails, however, are not in controversy here. The plaintiffs acquired their 80 acres of land from Leonard Brown and wife on the 3rd day of August, 1942. This 80 acres originally were obtained from the Government by John Begley and the principal persons who had owned it after Mr. Begley were Messrs. Bell, Jordan, Price, Thyr, Brown and the plaintiffs, Mr. and Mrs. Sellers.
The line of ownership of defendant's 40 acres is not so long and, according to the record, for years was known as 'Railroad Land,' then passed to what is known as the 'Ozark Plateau Land Co.' It was from this latter Company that the defendant obtained title about four years before the trial.
The evidence shows that defendant's 40 was and is a rough, unimproved, uninhabited and unenclosed woodland. There is some evidence that perhaps at one time during the years, there had been a small portion of the southwest corner of defendant's forty fenced for pasture by another person and apparently not with the knowledge or consent of the owner, but we think the evidence conclusively shows that none of it near the road had even been fenced. Some distance south of the north line of plaintiffs' west 40, and near the west line thereof, Mr. Begley, the then owner, had, years ago, built a log cabin. Later a predecessor in ownership of the plaintiffs, built a more modern residence south of the log cabin, 135 steps from the west line of plaintiffs' west forty, and between the cabin and the new residence, the old road, known as the Stoutland-Richland road, ran. It came from the east and approached the west line of plaintiffs' west 40 in a westerly or northwesterly direction and after it crossed it, it turned more northwesterly and forked some 100 or more feet south of the north line of defendant's 40. This road across the three forties was used by some of the residents of that region up until 1903. At that time Mr. Jordan owned what is now plaintiffs' two forties and he petitioned the County Court of Laclede County for a change in the previous location of the road so that it would run from the northeast corner of his east 40 due west three-fourths of a mile on the quarter section line (the north line of all three forties) thence along the railroad in a southwesterly direction, connecting with the old Stoutland-Richland Road. This petition was signed by the Ozark Plateau Land Co., by O. T. Nelson, agent, and this Company was listed as one of the owners of land through which such new location would run, and would give the right of way. This change of location was ordered made by the County Court of Laclede County as a county road, at the expense of the petitioners. This order changing the location would seem to be a recognition of the previous public character of the old Stoutland-Richland road. Mr. Jordan immediately fenced his two forties, the fence going across the abandoned old Stoutland and Richland road. This old road was used very little, if any, from that time on except by the plaintiffs and their predecessors in title or by persons coming either to the log cabin or the new home later to be owned by plaintiffs. The road in controversy in this law suit is the road from plaintiffs' west line in a northwesterly direction to the county road, established on the quarter section line in 1903. Plaintiff Ralph Sellers testified that there were two old road-beds where roads had been across his land from his house to the new road on his north line. That he had at times let one of his neighbors drive through a gap in his north line fence and down to his house 'just to be a good neighbor' and keep him from having to go so far around.
There is no evidence as to who owned defendant's 40, for many years, but it was called was located at any time. As stated, defendant acquired his title from the latter owner, about four years before the trial.
While the evidence may be slightly conflicting, we think it almost conclusively proves that the 40 acres of the defendant, in addition to being wooded, unenclosed, uncultivated, unimproved and open range, also had no clearly defined trail or road continuously used by the public for any great period of time. It seems to have been more of a...
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Sellers v. Swehla
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