Trustees of Forestgreen Estates, 4th Addition v. Minton, s. 35027

• Decision Date: 23 April 1974
• Docket Number: Nos. 35027,35138,s. 35027
• Parties: The TRUSTEES OF FORESTGREEN ESTATES, 4th ADDITION, et al., Plaintiffs-Respondents, v. Jack W. MINTON et al., Defendants-Appellants, Neal Willis et al., Intervenors-Respondents. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 800

510 S.W.2d 800

The TRUSTEES OF FORESTGREEN ESTATES, 4th ADDITION, et al., Plaintiffs-Respondents, v. Jack W. MINTON et al., Defendants-Appellants, Neal Willis et al., Intervenors-Respondents.

Nos. 35027, 35138.

Missouri Court of Appeals, St. Louis District, Division Two.

April 23, 1974.

Motion for Rehearing or Transfer to Court En Banc or

Transfer to Supreme

Court, Denied June 12, 1974.

Application to Transfer Denied July 22, 1974.

Jack F. Allen, Clayton, for defendants-appellants.

Ziercher, Tzinberg, Human & Michenfelder, Clayton, for plaintiffs-respondents.

William H. Wyne, Jr., Edward E. Murphy, Jr., St. Louis, for intervenors-respondents.

GUNN, Judge.

Defendants-appellants appeal a decision in an equitable action permanently enjoining them from interfering with the use and access by plaintiffs-respondents over private streets within a residential subdivision and removing defendants-appellants as trustees of their subdivision.

Seining through the testimonial waters we catch two basic issues which are dispositive of this case: 1) whether plaintiffs have a prescriptive easement over the roads which defendants sought to close off thereby making interference with the use illegal, and 2) whether there was sufficient evidence to sustain the trial court's judgment removing defendants as trustees of their subdivision. We find in the affirmative to both issues and therefore affirm the judgment of the trial court.

The area involved is titled Forestgreen Estates and is located in Ladue, Missouri. The entire Forestgreen Estates Subdivision consists of 120 acres which have been divided into five subdivision plats known as Forestgreen, plats 2, 3 and 5 and Forestgreen 4th Addition, but which will hereafter be referred to as plats 1, 2, 3 and 5 and 4th Addition. Plaintiffs are the trustees of the 4th Addition, and defendants are the trustees of plats 1, 2, 3 and 5. ¹ Intervenors-respondents are residents of plats 1, 2, 3 and 5 who have sought to restrain defendants' interference with a roadway and the removal of defendants as trustees of plats 1, 2, 3 and 5.

In the beginning, a developer, C. C. Ziegler, secured an option to develop the entire 120 acre tract, and on November 7, 1960, the Ladue Zoning and Planning Commission approved the preliminary subdivision plat. Through intricate financing agreements with Jefferson Savings & Loan Association, Ziegler, corporations owned by him or his assigns purchased and developed the lot areas contained in plats 1, 2, 3 and 5. Jefferson Savings & Loan Association obtained title to and developed the 4th Addition. The 4th Addition plan was approved by the Ladue Zoning and Planning Commission on November 10, 1961 and recorded on November 29, 1961. Development of the lots commenced in late 1961 and early spring, 1962.

The five plats (1, 2, 3, 5 and the 4th Addition) were placed under indentures filed with the plats by the developers. The indentures of plats 1, 2, 3 and 5 were identical and therefore merged into one trusteeship. The 4th Addition was under separate indenture and under a separate trusteeship.

The first matter upon which we dissertate concerns prescriptive easement rights to a road. Wild Deer Road runs through the 4th Addition and continues as the same roadway but under the name of Copper Hill Road into plat 3, which is immediately contiguous to the 4th Addition. Copper Hill Road also serves other subdivision plat areas. The Wild Deer-Copper Hill Road was established and passable for motor vehicle traffic in late 1961 and early spring 1962 and was used by residents of all five of the subdivisions. From time to time, certain trustees of plats 1, 2, 3 and 5 objected to the through use of Wild Deer- Copper Hill through their subdivision plat areas and a few ineffective efforts were made to block off the roadway between the 4th Addition and plat 3. On June 5, 1972, defendants as trustees for plats 1, 2, 3 and 5 met and determined to permanently block the roadway between the 4th Addition and plat 3. Defendant Gerstner and his company were employed to construct a rock garden across the roadway which would completely close it off to motor traffic moving between the 4th Addition and plats 1, 2, 3 and 5. Plaintiffs and intervenors were successful in their action in the circuit court to halt the interference with their use of Wild Deer-Copper Hill.

Plaintiffs allege that they have a prescriptive easement to unfettered use of Wild Deer-Copper Hill as a roadway allowing passage between 4th Addition and plats 1, 2, 3 and 5. Intervenors agree with them. Defendants counter that there was evidence that the street had been chained or barricaded at least three times within the ten year period and had been chained off at the early construction stages 1962 and 1963; that consequently, plaintiffs are unable to establish continued and uninterrupted use of the roadway for ten years or more.

Three residents of the 4th Addition testified that they had used the through Wild Deer-Copper Hill roadway since the latter part of 1961 and early spring of 1962 until halted by the rock garden excavation on June 15, 1972. One witness admitted that a chain was placed over the roadway for a very brief period. None of the three witnesses was ever prevented from free use of the road, and it was used regularly both as an access to their homes through plats 1, 2, 3 and 5 and for the delivery of construction materials in connection with the witnesses' businesses in the construction of homes in the entire subdivision. A fourth witness testified that from April, 1963 to June 15, 1972, his use of Wild Deer-Copper Hill had never been impeded.

For the defendants, there was testimony contradictory to plaintiffs' as to the length of time a chain blocked the roadway and the effectiveness of the blocking. Defendants' own evidence in this regard ranged from the chain never having been down in 1962 and 1963 and being seen 'a hundred times' by one witness to its being up for short periods in 1962 and 1963, but not as an effective barrier to traffic. There was also conflicting testimony concerning the sophistication of the roadway development during its incubative stages and whether it was passable. The trial judge found in favor of plaintiffs and intervenors regarding the credibility of testimony concerning the chain and use of the roadway by plaintiffs and held the chain in 1962 and 1963, if it did exist, did not interrupt plaintiffs' use of the roadway. We must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(d), V.A.M.R. And we do not here have reason to believe the trial court's findings determining the conflicting testimony in favor of plaintiffs to be clearly erroneous.

So much for the chain in 1962 and 1963 and whether it interrupted traffic over Wild Deer-Copper Hill. The trial court found that it did not, and we do not disturb those findings. But, in addition, there were three brief episodes where attempts were made to block off Wild Deer-Copper Hill. On Labor Day weekend, 1966, a chain barrier was placed across the roadway; on April 18, 1967, the road was barricaded; in September 1971, a portable barricade was placed across the road. In each instance within a short period of time--minutes or a few hours--after the barriers were placed, they were torn down by residents of the 4th Addition in two instances, and in one case by a woman resident of plat 3. The barricades were therefore not effective to stop traffic.

Do plaintiffs have a prescriptive easement over Wild Deer-Copper Hill? The law regarding prescriptive easements has been oft recited but scarcely better than in the two recent decisions of George v. Dickinson, 504 S.W.2d 658 (Mo.App.1974) and McDougall v. Castelli, 501 S.W.2d 855 (Mo.App.1973). We borrow heavily from these two cases in reaching our decision. The essential elements for prescriptive easement are use of the land which is open, visible, continuous, uninterrupted for the required period of time and adverse under a claim of right. George v. Dickinson, supra. "Adverse,' under the definition, means that the one making the use 'shall not recognize in those as against whom it is claimed to be adverse an authority either to prevent or permit its continuance. It is the nonrecognition of such authority at the time the use is made which determines whether it is adverse." McDougall v. Castelli, supra at 858, quoting from Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894, 899 (1945). And continuation of use of easement may be tacked onto the prior use of predecessors to establish the required time requirement. Beldner v. General Electric Company, 451 S.W.2d 65, 75 (Mo.1970).

Regarding the claim of right element, in Moravek v. Ocsody, 456 S.W.2d 619 (Mo.App.1970), it was said, l.c. 625:

'It is not necessary that there be shown an express claim of right in words, or that the adverse party expressly admit his knowledge of it. These facts may be inferred from the nature of the use and the situation of the parties. It is sufficient that the person who has allegedly...