Umphres v. J.R. Mayer Enterprises, Inc., s. 64319

• Decision Date: 25 October 1994
• Docket Number: 64375,Nos. 64319,s. 64319
• Parties: Nora M. UMPHRES and James S. Umphres, Plaintiffs/Appellants, v. J.R. MAYER ENTERPRISES, INC., et al., Defendants/Respondents/Cross-Appellants.
• Court: Missouri Court of Appeals

Page 86

889 S.W.2d 86

Nora M. UMPHRES and James S. Umphres, Plaintiffs/Appellants, v. J.R. MAYER ENTERPRISES, INC., et al Defendants/Respondents/Cross-Appellants.

Nos. 64319, 64375.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 25, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 30, 1994.

Application to Transfer Denied

Jan. 24, 1995.

Daniel J. McAuliffe & Associates, Richard J. Magee, Clayton, for appellants.

Hawk & Mattingly, John T. Hawk, Clayton, Claiborne P. Handleman, Daniel D. Simon, St. Louis, Donald Jay Cohen, Clayton, Susman, Schermer, Rimmel & Shifrin, Andrew Kasnetz, Dale Barken Glaer, St. Louis, for respondents.

PUDLOWSKI, Judge.

This is an appeal from an action in equity seeking an injunction to restore a roadway, once located over a prescriptive easement, to its original location. Despite certain wrongful actions taken by owners of the servient land, the trial court denied a request by the owners of the dominant land for an injunction to restore the road to its original location and instead awarded money damages to the owners of the dominant land because their insignificant injuries did not warrant an injunction which would work great hardship on the servient landowners. We affirm.

On September 9, 1948, John A. and Alma J. Keller acquired five acres of a ten acre tract in west St. Louis County owned by Albert and Ida Jacobs. On August 16, 1950, Sam and Nora Umphres acquired the Kellers' five acre tract. The five acres are now owned by appellants Nora and James Umphres.

The original 1948 deed from the Jacobs to the Kellers, appellants' predecessors in interest, described an "easement" ten feet wide, running north and south along the eastern line of the five acre tract. The deed was recorded. The land described by the deed as an "easement" was not owned by the Jacobs, the grantors, but rather by Arthur and Hilda Ray, the predecessors in interest of the respondents. No evidence exists whether or not the Jacobs had an interest in the "easement" described in the deed of 1948 over the Rays' land. Nor is there any proof that there ever was a road located within the bounds of the "easement" described in the deed.

An actual gravel road did exist nearby, however, and had been there at least since 1950. Most of the road ran just east of the land described in the 1948 deed. It ran over the Rays' property in 1950, and was used continuously by the appellants Umphres through 1987, for purposes of access to their property. It appears that the deed of 1948 was referring to this existing road, but misdescribed its location.

Mr. J. Randall Mayer, a developer and president of respondent J.R. Mayer Enterprises, Inc., constructed homes on land formerly owned by the Rays as part of a subdivision development. Both the actual road and the "easement" property described in the deed of 1948 ran across three of the lots upon which homes were constructed. These lots, numbered 52, 53, and 54, and the homes constructed on them now belong respectively to respondents Mr. and Mrs. Greco, Mr. and Mrs. Hairisine, and Mr. and Mrs. Cook.

In mid-1987 Mr. Mayer approached appellants, the Umphres, requesting their consent to move the existing roadway farther west, closer to the appellants' property line. Appellants refused. Appellants received a letter dated November 2, 1987 from respondent Mayer Enterprises' attorney that the roadway would be relocated on November 6, 1987, despite appellants' objections. Appellants filed this suit on November 4, 1987, requesting reformation of the deed of 1948 and a temporary restraining order against the repositioning of the road.

On November 4, 1987, Judge Kenneth Weinstock of the Circuit Court of St. Louis County denied the appellants' request for a temporary restraining order. On November 6, as planned, respondent Mayer relocated most of the roadway ten to twelve feet to the west of its original position. The new road lies approximately within the bounds of the "easement" description in the deed of 1948. The new road is also made of gravel and dirt, and is in most ways similar to the old road, except that it makes a slight bend at its northernmost point, is slightly narrower, is intersected by a new subdivision street, and has suffered from lack of maintenance for the last several years. Since the relocation of the road to its present westerly location, the owners of lots 52 through 54 have placed items such as fences, hedges, gardens, and swing sets over land once occupied by the old road.

This cause in equity was heard by Judge Charles B. Blackmar, and he found that appellants held a valid prescriptive easement over the land once occupied by the old roadway and that the removal of the road abridged appellants' legal rights. Judge Blackmar, however, also found that the appellants' injury was compensable by money damages, and awarded them $7,500.00 to be paid by respondent Mayer Enterprises in lieu of the requested injunction to relocate the road.

The Umphres now appeal this judgment alleging that the trial court erred in determining that injunctive relief was not appropriate. The Umphres stress that injunctive relief is warranted in light of the fact that respondents willfully encroached upon the easement. Respondents deny that the trial court erred in its selection of the remedy. Additionally, respondent J.R. Mayer Enterprises, Inc. cross appeals that the trial court erred in its determination that a prescriptive easement exists over the land once occupied by the old road because such use was permissive at the outset. We will address the cross appeal first.

Appellants held a valid prescriptive easement over the land occupied by the old roadway.

To obtain a prescriptive easement, one must show that the use of the property is "open, adverse, visible, continuous and uninterrupted under a claim of right for ten years or more." Hermann v. Lynnbrook Land Co., 806 S.W.2d 128, 131 (Mo.App.E.D.1991). The appellants' use of the old roadway meets these criteria. The existence of the road and the appellants' use of the road had been open, visible, continuous, and uninterrupted from 1950 through 1987. It is of no consequence that the old road as it existed did not fall perfectly within the bounds of the language in the deed of 1948. For purposes of an easement by prescription, a visible, actual use commonly serves as valid notice to the servient estate. See, e.g., Johnston v. Bates, 778 S.W.2d 357, 363 (Mo.App.E.D.1989). Appellants' use of the road was also under a claim of right, for appellants are able to trace their claim to language in the deed of 1948 granting their predecessors in interest an easement in the vicinity.

Appellants' use of the old roadway also was adverse. For a use to be considered adverse, it is not necessary for one to intend to violate the owner's rights. It is sufficient that one uses land without regard to any right of the owner to prohibit the use. Hermann v. Lynnbrook Land Co., 806 S.W.2d 128, 131 (Mo.App.E.D.1991). Here, appellants used the old roadway for decades without any regard of respondents' possible right to exclude them. This "long and continued use without evidence to explain how it began raises the inference it was adverse under a claim of right." Gault v. Bahm, 826 S.W.2d 875, 881 (Mo.App.S.D.1992).

Cross appellant/respondent J.R. Mayer Enterprises, Inc. asserts, however, that the use of the road was permissive at the outset. While we acknowledge that a permissive use cannot ripen into a prescriptive easement, Johnston v. Bates, 778 S.W.2d 357, 362 (Mo.App.E.D.1989), and that the presumption of adversity does not apply when there is evidence of prior permission, Homan v. Hutchison, 817 S.W.2d 944, 948 (Mo.App.W.D.1991), we do not believe that there is evidence of prior permission in this case. Here, cross appellant asserts...