Wallach v. Stetina

• Decision Date: 14 October 1929
• Docket Number: No. 27724.,27724.
• Citation: 20 S.W.2d 663
• Parties: WALLACH v. STETINA.
• Court: Missouri Supreme Court

20 S.W.2d 663

WALLACH v. STETINA.

No. 27724.

Supreme Court of Missouri, Division No. 1.

October 14, 1929.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Suit by Joseph Wallach against Joseph Stetina. Judgment for plaintiff, and defendant appeals. Case transferred to St. Louis Court of Appeals.

R. E. Kleinschmidt, of Hillsboro, and John Haley, of Clayton, for appellant.

Clyde Williams, of Hillsboro, for respondent.

LINDSAY, C.

This is a suit between two adjoining landowners, wherein the plaintiff sought to require defendant to remove certain obstructions, consisting of posts and wire, from an alleged roadway, and asked that he be permanently enjoined from obstructing said alleged roadway. The trial court granted a temporary injunction, and upon a hearing entered a decree in favor of the plaintiff, permanently enjoining the defendant from obstructing said roadway. Because of the fact that the findings made and recited by the court follow literally the allegations of plaintiff's petition, we set forth the finding and decree of the court in full, as follows:

"Now come the parties in person and by their respective attorneys, and the issues in this cause having heretofore been submitted to the court, the court doth now, after due consideration of same, find that the plaintiff is the owner of the following described real estate, situate in the county of Jefferson, state of Missouri, to wit: The west half of the southwest quarter of section one (1), township forty-three (43), range four (4) east, and the northeast quarter of the northeast quarter of section eleven (11), township forty-three (43), range four (4) east.

"The court further finds that there is a roadway fifteen feet wide, beginning at the northeast corner of the northeast quarter of the northeast quarter of said section 1, and extending south along the eastern boundary line of said northeast quarter of the northeast quarter; that said roadway was opened up and constructed by plaintiff fourteen years ago, and has been constantly and continuously used by him as a roadway from and after said time until the present; that said roadway is his only means of passage to and from the above-described tract of land; that said roadway has, during the period of fourteen years, been used generally by people in the neighborhood, and more especially by the owners of the threshing machines used in that neighborhood, as a passage for said machines to and from the various crops in that community; that said roadway has been constructed, repaired and maintained by the plaintiff.

"The court further finds that the defendant had no right to obstruct the free passage of said roadway in any way. It is therefore ordered, adjudged, and decreed by the court that the temporary writ of injunction heretofore had in this cause enjoining and restraining defendant, Joseph Stetina, from obstructing said roadway in any way or interfering with the free passage thereof by the public, and the plaintiff in particular, and that said injunction be and the same is hereby made permanent."

The petition contained the allegation that about the 1st day of May, 1925, defendant placed and erected a wire fence along, upon, and across said roadway, thereby obstructing said roadway and preventing the free passage of the public and of plaintiff in particular, over said road. The answer of the defendant was a general denial.

The plaintiff introduced in evidence two warranty deeds. By the first of these he acquired the west half of the southwest quarter of section 1, and 1.62 acres, the northeast corner of the northeast quarter of the northeast quarter of section 11, in November, 1915. By the other deed he acquired the east half of the northeast quarter of section 11 (except the 1.62 acres) in November, 1919. The defendant owns, and for more than 14 years owned, the west half of the northwest quarter of section 12; that is, the land immediately east of the plaintiff's land in section 11, and adjoining on the south plaintiff's land in section 1. The testimony for plaintiff was that he graded and constructed the roadway. There is testimony that in doing so, at one point, he cut down a hillside on his own land, and upon the western part of the line of the roadway in question, and that the posts and wire erected by defendant came within about 4 feet of the bank of the hillside mentioned, and prevented the free passage of vehicles. The testimony for plaintiff was to the effect that the roadway had been used by plaintiff during the 14 years preceding the erection of the posts and wires by defendant, and that it was also used by people in the immediate community and for the passing of threshing machines in the neighborhood. It is shown that, in the course of years prior to the immediate controversy, several surveys of the boundary line between plaintiff's land and defendant's land had been attempted or made, but it does not appear that plaintiff and defendant by agreement had a survey made. Plaintiff...