Smith v. Santarelli
| Decision Date | 12 January 1948 |
| Docket Number | 20939 |
| Parties | SMITH v. SANTARELLI et al |
| Court | Kansas Court of Appeals |
'Not to be published in State Reports.'
Philp J. Fowler and J. E. Rieger, both of Kirksville, for appellants.
George J. England, of Kirksville, for respondent.
SPERRY PER CURIAM
This is an injunction suit, brought by Emerson Smith, plaintiff against Joe and Eda Santarelli, defendants. Judgment was for plaintiff. Defendants were permanently enjoined from erecting barriers or obstructions upon a roadway or right of way running across the lands of defendants to land owned by plaintiff. Defendants appeal.
Plaintiff and defendants own adjoining tracts of land in Adair County. Plaintiff's land is described as: The North Half of the Southeast fourth of Section 35, Township 63, of Range 16. The land of defendants lies between that of plaintiff and highway 6, and is described as: That part of the North half of the Southwest fourth and of the Southwest fourth of the Northwest fourth of Section 36, of Township 63, of Range 16, lying south of Missouri State Highway No. 6, in Adair County, Missouri.
Lefendants acquired their land during the year 1933, and plaintiff acquired his tract in 1938. Defendants cleared their tract and erected thereon a home, a building known as Half-Way Inn, and other buildings. Plaintiff resides on his land and, until defendants erected a fence across a roadway leading from plaintiff's property across that of defendant's, regularly traveled across the land of defendants to highway 6. This was his chief way of ingress and egress. It is his contention that the evidence established an easement over a period of more than 10 years, prior to 1945, when the barrier was erected.
Mr. Hopewell, on behalf of plaintiff, testified to the effect that he grew truck produce on plaintiff's land in 1931, and used the roadway in question to transport supplies and produce to and from he land in question; that he again farmed it in 1935, 1936, 1937 and 1938 until plaintiff bought it, using the road for ingress and egress.
Mr. Kephart, who was 68 years of age, stated that he had been in and out of the Smith tract, and was familiar with it, since he was 18 years of age; that he used this same road at that time; that he owned the Smith tract from about 1913 until about 1927, during which time he operated a coal mine there and transported coal and supplies over this road; that he hauled coal, gravel, and rock, and used this road exclusively; that he maintained it and repaired it; that it was then located just where it is now; that he fenced the Smith tract; that his pasture land ran up to the Santarelli tract; and that he knew that the road and been there for a period of 50 years, prior to the date of trial; that he sold the land to a Mr. Bowers, in about 1927, and was away from that country until about 1939; that when he again saw the land, upon his return, he traveled down the same road that he had used when he owned the land; that it was there when he left and when he came back; that the only change was that the house and Inn had been built during his absence.
Mr. Potter testified to the effect that he traveled this identical road when he was 12 years of age, 48 years prior to the trial; that he accompanied his father, who hauled ties and coal over it; that its location has not been changed.
Mr. Carter testified that he owned the Smith tract during the early 1930's; that he lived there; that he went in and out of the place over the road in litigation.
Mr. Bowers had been familiar with the road in question for more than 47 years, and had traveled it in his youth.
Mr. Maize became familiar with this road in 1923, and traveled it in going to and coming from the Smith tract, making hay, hauling coal, and for social calls, for probably 2 years thereafter; that he did not travel over it again until after Smith acquired the farm and the Santarellis had improved their tract.
Mr. Figge had traveled this road more than 30 years prior to the trial.
Mr Worthington, 93 years of age, stated that he traveled this road with Dr. Goben, to hunt foxes, in 1910; that he drove in with a car; that he had seen coal and hoop poles hauled from the Smith tract over this road; that the road ran about between the house and the Inn, although said...
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