Welch v. Shipman

• Decision Date: 10 May 1948
• Docket Number: 40531
• Citation: 210 S.W.2d 1008,357 Mo. 838
• Parties: W. H. Welch, Appellant, v. Ray Shipman
• Court: Missouri Supreme Court

210 S.W.2d 1008

357 Mo. 838

W. H. Welch, Appellant, v. Ray Shipman

No. 40531

Supreme Court of Missouri

May 10, 1948

Appeal from Jasper Circuit Court; Hon. Walter E. Bailey Judge.

Affirmed.

Stemmons & Colvin for appellant.

(1) Proceedings to establish private road involves title to realty, and appeal therefrom is within Supreme Court's jurisdiction. Richter v. Rogers, 37 S.W.2d 523, 327 Mo. 543. (2) The issues relating to the necessity of the proposed road and its dimensions, and course over the land of defendant were issues to be determined by the court without the aid of a jury. Allen v. Welch, 125 Mo.App. l.c 286. (3) And to that end the circuit court on appeal, on trial de novo could disregard any error, defect or informality in the proceedings in the county court, and could have appointed new commissioners if found necessary. The issue of damages was therefore not germane and was immaterial at this stage of the proceeding. (4) In a case such as herein exists where no public road passes through or alongside petitioner's land, then under the statute petitioner was entitled to a private right-of-way of necessity. The court erred in declaring that such necessity did not exist and in denying the petitioner a private road. Section 8488, R.S 1939; Weise v. Thien, 214 S.W. 853, 279 Mo. 524, Fitzmaurice v. Turney, 114 S.W. 504, 214 Mo. 610, Belk v. Hamilton, 32 S.W. 656. (5) Plaintiff did not receive by implication an easement of private right-of-way over the Bogle land even though he and his sister acquired title to their respective eighties about the same time from a common grantor. If such implied easement ever did exist, it has long ago been lost by abandonment and non-user, since more than thirty-five years have elapsed since the acquisition of the Welch eighty and the Bogle eighty from a common grantor. Mahnken v. Gillespie, 43 S.W.2d l.c. 800; Greisinger v. Klinhardt, 9 S.W.2d l.c. 980; Schneider v. M.E.H. Realty Inv. Co., 193 S.W.2d 69. (6) The non-user of an easement for a period prescribed by the statute of limitations constitutes abandonment of the right. Barkshire v. Drainage District No. 1, 146 S.W.2d 701.

Sizer & Myres, Wm. J. B. Myres and Edward V. Sweeney for respondent.

(1) The trial court sitting without a jury rendered judgment for respondent. That judgment cannot be set aside unless clearly erroneous and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Mo. R.S.A., 1939, Sec. 847.114 (d); Sidney Weber, Inc., v. Interstate Motor Feight System, 205 S.W.2d 291. (2) It is established by all the evidence, including the testimony of appellant himself, that appellant has access to his land without the establishment of a private road across respondent's farm. Therefore, said road is not a way of necessity and the trial court properly denied appellant's petition. Colville v. Judy, 73 Mo. 651; Cox v. Tipton, 18 Mo.App. 450; Chandler v. Reading, 129 Mo.App. 63, 107 S.W. 1039; Seested v. Applegate, 26 S.W.2d 796. (3) Appellant's aunt, Telitha J. Hayes, originally owned as a single 160 acre parcel the eighty acre tract now owned by appellant and the eighty acre tract immediately north thereof. The said Telitha Hayes conveyed the northwest forty acres to appellant's sister, Delia Bogle. She thereafter conveyed to appellant the eighty acres which he now owns. Later she conveyed the remaining forty acres to Delia Bogle. The conveyance to appellant carried with it by implication an easement or way of necessity across the remainder of his grantor's property giving him any outlet to the public county road that extends along the north side of said 160 acre tract. Therefore, no necessity exists for a private road across respondent's farm. 19 C.J. 927, sec. 124 (4); Seitz Packing & Mfg. Co. v. Quaker Oats Co., 343 Mo. 1059, 124 S.W.2d 1177; Chase v. Hall, 41 Mo.App. 15. (4) Appellant's permissive use in the past of respondent's farm as a means of access to his eighty acre tract does not defeat or obviate the existence of said easement, nor does his past failure to assert or exercise his right to said easement preclude him from doing so now. Cox v. Tipton, 18 Mo.App. 450; Finn v. Williams, 376 Ill. 95, 33 N.E.2d 226, 133 A.L.R. 1390; Blum v. Weston, 36 P. 778. (5) Since the easement which appellant acquired over his grantor's property is a way of necessity, it is immaterial to the existence of said easement, whether there is or has ever been a visible or apparent roadway across the land lying between that of appellant and the county road. 17 Am. Jur. 952; Palmer v. Palmer, 44 N.E. 966. (6) The trial court, in deciding whether said road was a necessity, properly took into consideration the serious damage and great hardship which its establishment would cause to respondent. The evidence is conclusive that the benefits which appellant would derive from said road are negligible in comparison with the great damage which it would cause to respondent. The trial court, therefore, properly denied appellant's petition. Carter v. Bates, 142 Ark. 417, 218 S.W. 838; Richter v. Rodgers, 327 Mo. 543, 37 S.W.2d 523.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Plaintiff (appellant) commenced this cause in the county court of Lawrence County to establish a private road over the lands of defendant and along the way of an old road. The proceedings in the county court resulted in the establishment of the road, not where plaintiff asked, but at a place apparently satisfactory to him. Defendant appealed to the circuit court. The venue was changed to Jasper County; there the parties stipulated that the court first try the issue of the necessity of the proposed private road, and if found that the road was a necessity, then the amount of damages to defendant would, at a future hearing, be determined by a jury. The court found that the proposed private road was not a necessity, and that "plaintiff's petition for a private road be denied." Plaintiff appealed. The appeal was properly to the supreme court because title to real estate is involved. Sec. 3, Art. V, Const.; State ex rel. Palmer et al. v. Elliff et al., 332 Mo. 229, 58 S.W.2d 283; Richter v. Rodgers et al., 327 Mo. 543, 37 S.W.2d 523.

Plaintiff owns the SE 1/4 of the SW 1/4 and the SW 1/4 of the SE 1/4, Sec. 13, T. 27, R. 26, Lawrence County, and his son owns an 80, subject to the life estate of plaintiff's sister, extending east and west and lying immediately north of plaintiff's 80. Defendant owns the E 1/2 of the SE 1/4 of said section lying west of highway K, and the NE 1/4 of the NE 1/4 of Sec. 24, lying immediately south. There are 101 acres in defendant's tract. In addition to the above plaintiff owns 11.75 acres in section 18 lying immediately east of defendant's land in section 13. Plaintiff's house and barn are on the 11.75 acres and about 200 feet east of highway K, and plaintiff resides there. The house and barn are about a quarter south of the north line of defendant's farm. The house and barn of defendant are west of plaintiff's house and are about 500 or 600 feet west of highway K. Honey Creek runs generally west across the north part of plaintiff's land, and generally southwest across the 80 owned by plaintiff's son.

The old road, mentioned supra, enters defendant's land about in front of plaintiff's house and extends generally west from highway K to the northeast corner of plaintiff's east 40. It passes between defendant's house and barn. The house is south of the old road. As we understand, all of defendant's land is fenced and in order to get to the old road from highway K, defendant's gate must be opened, and there is a gate where the old road enters plaintiff's land. The proposed private road as located by the commissioners appointed by the county court is 30 feet in width and leads off from highway K east of defendant's house and about where the old road leads off, and then the proposed private road extends in a northwest direction 493 feet, then west 421 feet to defendant's west line, and then south 517 feet to the northeast corner of plaintiff's east 40, and about the point where the old road enters plaintiff's land as we understand. The commissioners recommended that the proposed private road be fenced on both sides by defendant with 26 inch hogwire with two barbed wires above hung on metal or hedge posts set not more than 12 feet apart with suitable corner posts properly braced. The commissioners assessed defendant's damages, including the fence, at $ 450. Defendant said that he could not build the fence for that amount. There is a public road running east and west along the north line of defendant's tract and on west along the north line of the 80 owned by plaintiff's son. This road is a quarter north of plaintiff's 80. Also, there is a public road running east and west along the south line of defendant's tract which road is a quarter south of plaintiff's 80.

The dwelling house on defendant's tract is a three-story stucco, and the barn is stucco. A spring comes up under the house and this spring has flowed continuously as far back as memory goes. Defendant has two fish ponds stocked with fish a short distance northwest of the spring and these ponds get their water supply from the spring. The old road runs between the ponds and the spring, but the proposed private road as located by the commissioners is north of the ponds. Other ponds on defendant's land up north towards Honey Creek are feasible. Defendant's tract, with the improvements, was valued at $ 32,000; his most valuable land is the bottom land along Honey Creek, and the proposed private road, as located by the commissioners, extends through this bottom land. Defendant had been offered as much as $ 1,000 an acre for from 6 to 10...