Vossen v. Dautel

• Decision Date: 05 June 1893
• Citation: 22 S.W. 734,116 Mo. 379
• Parties: Vossen v. Dautel, Appellant
• Court: Missouri Supreme Court

22 S.W. 734

116 Mo. 379

Vossen v. Dautel, Appellant

Supreme Court of Missouri, First Division

June 5, 1893

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Judgment reversed.

John W Booth and Wm. F. Broadhead for appellant.

(1) The grant of land bounded in part by a public road cannot raise an implied grant of a private way over other land of the grantor, in the absence of proof that some part of the land granted could not be reached from the road forming part of its boundary. The law implies a grant of a way only from necessity. "Convenience, even very great convenience, is not sufficient." Persons who desire ways of convenience against their grantors should stipulate therefor and have the same inserted in their deeds. See Nichols v. Luce, 24 Pickering 102 (cited by trial court), and Chase v Hall, 41 Mo.App. 15. (2) The evidence as to the travel over the land of defendant brings the case to the same level as the facts in the case of Stacy v. Miller, 14 Mo. 478. Neither the public nor any individual acquire any right by permissive use, according to the custom of the country. (3) A tenant cannot by prescription acquire an easement in land belonging to his landlord. Goddard on Easements [Bennett's Ed.], pp. 12, 160, 174. (4) In order to the acquisition of a way by prescription, the way used must be maintained in substantially the same place, and the use must be unequivocally such as is referable to a claim of right, not under such circumstances as that it may be supposed to have been permissive for the full period necessary to bar an action for the recovery of real property. Goddard on Easements [Bennett's Ed.], pp. 133 and 134; Washburn on Real Property [5 Ed.], top page 338. (5) In order to constitute a dedication of a way to public use, it is necessary that the owner should intend what he does as a dedication. Such intent must be affirmatively found, and the land owner is entitled to a trial of the fact by a jury. Washburn on Real Property [5 Ed.], top page 79. (6) Joseph Sullins being dead, and his title having been transferred to defendant, plaintiff was not a competent witness for himself to prove anything claimed to have transpired between himself and Sullins, going to support plaintiff's title to the easement of a way over the land as against Sullins, and as against defendant holding in privity with Sullins. 2 Revised Statutes 1889, sec. 8918; Meier v. Thieman, 90 Mo. 433. (7) No private right of way is alleged in the petition. The petition alleges the existence of a public road, the use thereof by plaintiff and others as an outlet, and the obstruction of the road by defendant so that plaintiff was prevented from traveling it, and that plaintiff was damaged thereby. The answer to this was a mere denial; hence the case decided by the court was not the case made by the pleadings, and the judgment should be reversed. Crow v. Peters, 63 Mo. 429.

A. McElhinney for respondent.

(1) A way of necessity to the easement in controversy was created in favor of the respondent by the deed of Sullens to him in 1867. 2 Blackstone's Commentaries side p. 56; Goddard on Easements [Bennett's Ed.], p. 266; Washburn on Easements and Servitudes [4 Ed.], top pp. 258, 262; Howton v. Frearson, 4 Term R. 50 at p. 56; Staples v. Hayden, 6 Mod. 3; 3 Greenleaf's Cruise, title xxiv, side pages 25 to 30, side pages 85 to 91; United States v. Appleton, 1 Sumner's Rep. 492; Hazard v. Robinson, 3 Mason R. 272; Brigham v. Smith, 4 Gray 297; Holmes v. Seeley, 19 Wend. 507; Nichols v. Luce, 24 Pick. 103; House v. Montgomery, 19 Mo.App. R. 170. (2) In addition to the way of necessity, the respondent is entitled to a right of way by presumed grant, and long and continued user of the way for once and again beyond the entire period of limitation. Goddard on Easements [Bennett's Ed.], 134; Washburn on Real Property, 301; Polly v. McCall, 30 Ala. R. 20; Ricard v. Williams, 7 Wheat. 110; House v. Montgomery, 19 Mo.App. 170; Baker v. Railroad, 57 Mo. 265. (3) The law, by a fiction, from long user, will presume an original grant, as a matter of law, as an indisputable presumption. Washburn's Easements and Servitudes, 27, 28; Blake v. Everett, 1 Allen R., 248; House v. Montgomery, supra, and cases referred to in the opinion. (4) The petition and evidence has made out a case for injunction. High on Injunction [3 Ed.], top p. 646, sec. 849, p. 679, sec. 886.

OPINION

Black, P. J.

This is an appeal from a decree enjoining the defendant from placing obstructions in a road. The questions are: Whether the alleged road is in fact a public highway, and if not, then whether it is a private way of necessity or by prescription. From the mass of evidence set out in the bill of exceptions, some of it conflicting and much of it of little or no value, we find the facts to be as follows:

In 1858 and prior thereto, Joseph Sullens owned 250 acres of land in St. Louis county, on which he resided. In that year, he leased the house and farming lands to the plaintiff Vossen. Vossen continued to occupy the land as the tenant of Sullens until 1867, when he purchased from Sullens the north 148 acres, being the part on which the Sullens house and outhouses stood. The remaining 102 acres were then unenclosed timber land, and lay in the form of a parallelogram, extending lengthwise south to the Olive street road. After Vossen purchased the 148 acres, he leased from Sullens a considerable portion of the 102 acres, being the part adjoining the land which he purchased. He cleared and enclosed the land so leased and continued to occupy it as the tenant of Sullens and the Sullens heirs down to 1889. In 1890 the heirs sold the entire 102 acres to the defendant.

When Sullens resided on the land he had an outlet or road, called in this record the Sullens road, extending from his house south through the 102 acres of open timber land to the Olive street road. The plaintiff Vossen, as the tenant of Sullens, used this road until he purchased the 148 acres in 1867, and he continued to use it until the defendant closed it in 1890. This is the road in question, and it may be added that it passed through that part of the 102 acres held by Vossen as the tenant of Sullens after 1867 and down to 1889.

Going back to the date when Sullens conveyed the 148 acres to Vossen, that is to say in 1867, we find the Olive street road ran east and west just south of the entire 250 acre tract. A mile or more north of the entire tract there was another east and west road called the Lackland road. There was also a public road, called the Schuetz road running from the Lackland road to the Olive street road in a northwest and southeast direction. This road passed on and along the north line of the 148 acres for a distance of one-fourth to one-half a mile, and was about two hundred yards north of the plaintiff's house. The deed from Sullens to the plaintiff calls for this Schuetz road as one of the boundaries of the land conveyed. Such are the general facts bearing upon all of the issues.

1. The more specific facts bearing upon the issue whether the so-called Sullens road is or ever was a public highway are these: The plaintiff testified that he believed it was a public road, but being asked upon what he founded his belief said he did not know any better. He says he and some of the neighbors worked this road on one or two occasions under the directions of Mr. Craig, the road overseer, and this statement is corroborated by the evidence of Craig. He admits, however, that he placed a locked gate across the north end of the road where it entered the Schuetz road, and that he placed another gate across it at the south side of his premises. The other evidence shows clearly and beyond all doubt that Sullens opened out the way over his own unenclosed timber land for...