Aubrey Rutherford and Mary Rutherford, Husband and Wife, Respondents/Cross-Appellants v. Jack Davis and Shirley Davis, Husband and Wife
458 S.W.3d 456
Mo. Ct. App.2015Background
- Rutherfords own property subject to a recorded 1977 16-foot-wide ingress/egress easement used by adjacent owners; the road turns in front of the Rutherfords’ house.
- Davises (owners since 1999) repeatedly drove outside the recorded easement at the curve to "cut the corner," and removed obstacles the Rutherfords placed to deter them.
- In 2013 the Rutherfords sued for trespass, injunction, damages, costs, and attorney fees under the easement contract; Davises counterclaimed that they had acquired a prescriptive easement by 10+ years of open, notorious, hostile use and argued the recorded easement was inadequate for farm equipment.
- At the bench trial the court credited the Rutherfords’ witnesses and discredited Jack Davis; it found the recorded easement adequate, held Davises removed Rutherford obstacles without justification, and denied prescriptive easement and adverse possession claims.
- Court ordered Davises to stay within the recorded easement, limited fence height around the easement to four feet, assessed costs against Davises, and denied Rutherfords’ request for attorney fees; Rutherfords’ cross-appeal as to fees was dismissed as untimely.
Issues
| Issue | Plaintiff's Argument (Rutherford) | Defendant's Argument (Davis) | Held |
|---|---|---|---|
| Whether Davises acquired a prescriptive easement over area outside recorded easement | Use outside recorded easement was not permitted; any extra use was trespass | Use was open, notorious, adverse, continuous for 10+ years, creating prescriptive easement | Denied — Davises failed to prove continuous, uninterrupted use by clear and convincing evidence |
| Whether recorded easement was adequate for Davises' access (including farm equipment) | Recorded 16-foot easement is adequate; extra widening is not permitted | Recorded easement is inadequate to transport farm equipment without widening; hence additional use justified | Court found recorded easement adequate; appellate court did not need to reach all challenges but affirmed adequacy |
| Whether Rutherfords’ repeated placement/removal of obstacles interrupted any adverse use | Rutherfords’ actions interrupted use sufficiently to defeat prescription | Immediate removal of obstacles by Rutherfords would be ineffective if Davises promptly removed them | Held that most obstacles were promptly removed (did not interrupt), but the split-rail fence stood for “quite a while,” so interruption was shown for part of period; overall interruption element for prescription not satisfied for Davises |
| Whether Rutherfords are entitled to attorney fees and whether their cross-appeal is timely | Entitled to contractual attorney fees; cross-appeal timely | Cross-appeal untimely; Rutherfords failed to seek leave to file late notice | Cross-appeal dismissed as untimely; denial of fees stands because Rutherfords failed to perfect timely appeal |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of review in court-tried cases)
- Federal Nat’l Mortgage Ass’n v. Wilson, 409 S.W.3d 490 (Mo. App. E.D. 2013) (deference to trial court credibility findings)
- Covert v. Fisher, 151 S.W.3d 70 (Mo. App. E.D. 2004) (affirmance sustainable on any ground)
- Hirsch v. Ebinger, 334 S.W.3d 695 (Mo. App. E.D. 2011) (elements and clear-and-convincing standard for prescriptive easement)
- Smith v. Chamblin Properties, LLC, 201 S.W.3d 582 (Mo. App. W.D. 2006) (when assessing interruption look only to servient owner’s actions)
- Trustees of Forestgreen Estates v. Minton, 510 S.W.2d 800 (Mo. App. 1974) (immediate removal of barricade defeats interruption)
- State ex rel. Blackwell v. Elrod, 604 S.W.2d 768 (Mo. App. E.D. 1980) (timely notice of appeal requirement for appellate jurisdiction)
- In re Marriage of Wilfong, 658 S.W.2d 45 (Mo. App. W.D. 1983) (grant of leave to one party to file late appeal does not extend to other parties)
- Rogiers v. Boatmen’s Trust Co., 918 S.W.2d 285 (Mo. App. E.D. 1996) (dismissal of untimely cross-appeal where leave under Rule 81.07 not sought)