Wann v. Gruner

• Decision Date: 14 July 1952
• Docket Number: No. 1,No. 43055,43055,1
• Citation: 251 S.W.2d 57
• Parties: WANN et al. v. GRUNER et al
• Court: Missouri Supreme Court

Page 57

251 S.W.2d 57

WANN et al. v. GRUNER et al.

No. 43055.

Supreme Court of Missouri, Division No. 1.

July 14, 1952.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 8, 1952.

Dearing & Matthes, Joseph G. Stewart, Hillsboro, for appellants.

Roberts & Roberts, Farmington, for respondents.

CONKLING, Judge.

This equity action which seeks to judicially establish the existence of and the right of the plaintiffs and the public to use a certain country road (which has existed and been used by the public for more than 75 years) in St. Francois County, Missouri, presents us with another unfortunate instance where rural neighbors living on adjoining farms could not (or would not) use the same road without friction and final resort to the processes of the law in the courts. After the trial court had ordered a survey, and after a trial, the judgment and decree entered below found the issues in favor of plaintiffs and against defendants, granted the injunction prayed enjoining defendants from interfering with plaintiffs' use of the road, ordered defendants to remove certain encroachments on the road, decreed the road 'to be an open and public thoroughfare' and set out its boundaries, limits and exact location. The court found the road had been used by plaintiffs, their predecessors, and the public 'for at least 75 years, and that the County of St. Francois has expended public money for maintenance thereon for over ten years.'

The defendants appealed to the St. Louis Court of Appeals. Under authority of Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552, that court ordered the cause transferred here as involving the title to real estate within the meaning of Article V, Section 3 of the Constitution, V.A.M.S.

The road in question, particularly described in the pleadings and decree, runs northward for only about a mile from a point just east of a certain Methodist Episcopal Cemetery located on the north side of the Doe Run-Elvins road in St. Francois County. Defendants (brother and sister) own and farm the first and second farms north of the cemetery, on the west side of the road in question. Plaintiff Raymond Wann owns and lives on the farm across the road in question from the defendants; plaintiff Harry Wann's farm next adjoins the Raymond Wann farm on the north; plaintiff Charlie Wann owns and lives on the farm next north of Harry Wann, and plaintiff Clifford Wann owns the farm across the road to the west, and just north of the Gruner farm. According to the survey map, made at the trial court's direction and filed here, the road ends at a point between the farms of Charlie and Clifford Wann. It has no outlet on the north. The road in question is the only means of ingress and egress to the premises of plaintiffs Charlie Wann, Harry Wann and Raymond Wann. Defendants claim title to certain portions of the road and authority to close it or place gates across it. Defendant Grace Gruner testified the road in question belonged to her and her brother, defendant Hugh Gruner. On occasions defendants piled dirt in the road and obstructed it to traffic thereover by plaintiffs. On one occasion defendant Grace Gruner ordered Charlie Wann, Jr., to get off of the road and stay off, saying, 'it is my road.' She said the road 'was private property.' Plaintiffs were advised in writing by one counsel for defendants that he had examined the abstract of title to defendants' property, and that the road in question 'is entirely on Mr. Gruner's lands, and it is my opinion that he can prevent you from using this road if he so desires. Certainly he would be justified in placing two or more gates across this road,' etc.

The testimony showed the road to be from 29 to 31 feet wide, except where defendants' fence was moved. The court's survey and decree established it as 29 feet wide. The testimony indicates the road is in an isolated section and somewhat difficult of travel at best. Some of the ruts across the road are six inches deep. Much of the fence along the road was originally the old snake rail or worm fence,--wooden rails laid in zig-zag fashion, the end of the rails laid one on top of another. Witness Henry Ruh, a pioneer of ninety-two years of age, who lived at Hogeye, near Iron Mountain, had known it as a public road and had...