*1 such, may say clear, convincing proof that this court cogent and W. (Barnett (Mo.), v. Clark utmost confidence” S. “with the Benjamin Cronan, Kalb.adopted Clara. 625, 628) Mrs. Co., (2d) Furman v. St. Louis Union Trust 93 S. W. (2d) 726; (Mo.), W. v. Feehan 276 S. W. 884, 92 Lamb 338 Mo. S. give agree finding, trial court’s to which we 71, 80. We with the daughter adopted deference, Kropp Gamache is that Clara Madden, 155 W. Niehaus v. Laura J. Kalb. (2d) 145. against respondents favor of The trial court’s CG., Boliling, is, therefore, Westhues and appellant affirmed.
concur. adopted foregoing opinion Barrett, C., is PER CURIAM:—The concijr. judges All opinion as the the court. George Paul F. Appellant, Maude Anson, Cole Tietze W. Lucy wife, his Arvieux Tietze, Woodward, T. Lewis D. widow, wife, his J. W. Arvieux, Whitney, Carrie She Lee, r Dovy Bridgewater wife, Wilson, Crown man Wilson Cemetery Clyde Heynen, President, Hill Association, 39468. Corporation. Missouri, Municipal Sedalia, No. (2d) 190 S. 193. Two,
Division November *2 George appellant. Anson for *3 respondents. Henry 8. Lamm C. Salveter
D. *4 BOHLING, quiet title, being C. Action to the land involved corporate within City situate the of boundaries of the Sedalia and portions George college property. tract known the as R. Smith * City by and The Sedalia certain claim individual defendants title possession separate roadways principal adverse to over the land. A 1939, reading: turns “Nothing issue on Sec. in R. S. contained any any given, statute of limitation shall granted, extend to lands sequestered appropriated pious to any public, use or charitable . . .” “pious Plaintiff contended the been land had devoted a up among use” when Defendants, he’ received his deed. contеnded, pious if things,
other ever had been a use the long the lands, that abandoned and statute such since had been to run Plaintiff also limitation started abandonment. more in nothing contends the individual defendants established law permissive a The found the than user the land. trial court judgment as to defend- defendants. think the should affirmed We City the individual ant but reversed and remanded as to of Sedalia defendants. ' City’s petition is in form. Defendant Plaintiff’s conventional roadway a by strip answer user to assertеd title adverse used quiet- purposes land, asking east side of plaintiff’s any ing reply nonapplicability its title. Plaintiff’s set the “ religious, theory statute of limitation on the the land devoted agree- pious theory there was no and educational” and also on establishing lands boundary ment the true line between the but line; mistakenly true and each owner believed fence to be the motion, in pleaded if limitation also the statute of was ever set F. “pious” it was the land devoted to use. Paul tolled when Arvieux wife, Tietze Maude his Lewis and Tietze, Cole wife, joint Lucy Arvieux, filed and several answers J. W. Lee they right in which in themselves and the asserted roadway by describing 20 foot than 31 years, for more user roadway general terms. requested The Plaintiff five declarations case was tried to court. gave law. court The one and refused others. The found court excepting by plantiff strip of the land owner City alleged excepting, also, roadway easement Sedalia by Tiеtze, appealed. Lee and Arvieux. Plaintiff defendants sufficiency City’s City questioned The case. argument respects brief at asked that its claim be certain but ruled the merits. and defendant Sedalia own Plaintiff abutting quarter Township tracts of land the south of Section 46, Range county, and south 21, Pettis Missouri. The north center dividing lands, plaintiff’s section line is the line land between lying City’s lying and the land east of said north- the west strip to a possession south line. title asserted 10 feet approximately of lаnd at the wide feet wide north immediately at feet south west said the south end north and of land. com- north-south section center line the two tracts between E. Cotton. The mon title is E. source of Martha Smith Sarah City purchased being part now a its November cemetery. City cemetery, known as Crown Hill *5 1011, supra, As we See. on the issue applicability shall rule the within section and shall an abandonment a use said of the assume, the ap- of the case purposes determining, without for abandonment, plicability we need the time of of said section certain, facts, might which only otherwise detailed, sketch well be plaintiff’s claim with of title. connected September On Martha E. Smith Sarah gave and E. Cotton gift” or of land, including
a bond for “donation the land here involved, to the “Freedman’s Aid and Southern Society Educational Episcopal Church,” corporation, the Methodist Ohio in the beneficiary by January 1892, erected event said thereon paid and buildings, building costing $25,000, or college for suitable pur- poses. parties expressly recognized gift The said for charity, be one good reversionary purposes, educational with a interest effective cessation of buildings the use and real estate purposes. for educational time for the building The erection of the buildings or was thereafter extended January 1894. The conveyed grantors beneficiary by the land to the deed dated March proviso or corresponded conditiоn therein to that in the grantee for the deed. name changed bond was to “The ’’ Society Aid Episcopal Freeman’s of the Methodist Church. A deed August 17, executed and on 1917, vesting grantee said delivered simple estate; with the fee title to said real purpose the stated of the deed was to free the title of the reversion and all other conditions and existing. theretofore Thereafter, restrictions the name the bene- again ficiary changed; time to “Board of Eduсation for Negroes Episcopal Church,” corporation, of the Methodist an Ohio plaintiff deed, from which received his January dated April
recorded adjudged City strip upon findings court to defendant times, at all since had possession been in the adverse strip of said of land under claim of ownership absolute and using purposes the same for road its municipal cemetery, connection with making maintaining permanent valuable and improvements thereon; including mаrking fence substantial boundaries of the City’s claim; that, strip said ever if had been a pious devoted to use, such user had or charitable been abandoned and the had acquired possession period title thereto adverse for the of limita- tion. review, is no call substantiveness,
There issue of its City tending on behalf of the establish ownership the evidence its controversy possession plain of the land in between it and acquired. tiff, ownership might if thus overwhelming pre City’s the evidencе established the ponderance of adverse user years more; fencing improvement strip involved adjudged purposes and the exclusion of for road and those exercising any rights ownership from under whom he claims there- over. City’s possession
If started 1879 or antedated then, “public, pious or charitable use” the land under *6 adjudications court, ground See. 1011 affords of no once possession relief, being applicable; because not an continuing by subsequent sаid a user within attaching and is not tolled Mo. City Louis, Life Mut. Ins. Co. v. St. statute. Connecticut 108, 86 City Nevada, 102, 422, 969; 11 W. McGrath v. Mo. S. us sub- 236, However, any has directed 237. counsel not S. if of establishing and they, of record such facts evidence stantive inadvertently escaped record, our attention. have was says known; not that there Plaintiff the “true line” was line; agreement that fence constituting the true no the- fence ‘‘ wrongly en supposed line will not invest title land placed on City’s here is: The claim plaintiff’s closed.” One of difficulties fence, irrespective where ownership and included extended to, line, might After the agreed agreed to or not be. the true possession, it devolved prima facie case of adverse made its the City forward that claimed to an plaintiff to come with evidence fence, line, the fence was on the true- agreed only on condition City’s possession Tillman line; is, adverse. that that-the 104, W. 2d 109 Hutcherson, [11, 482 S. 13], [5], any affirms, probative plaintiff’s contention evidence find, We the true-line. “The rule is that agreement establishing the fence as adjoining occupancy proprietor’s an under while one’s any claiming line, intention of boundary and without mistake as to ascertained, pos beyond line, when is not adverse boundary the true up. given session, possession point, if holds to a yet he takes and adverse, possession, his is not point, such claims owner to boundary withstanding point line, his is true when belief that (Banc), 348 Mo. fact it is Brown v. Wilson not.” 666[8], occupies possessor “If the the land S. 2d 180[10, 155 W. 11]. own, occupy particular piece as his intending to that question in% Hutcherson, 348 Mo. adverse.” Tillman v. occupancy is 482, 154 W. 2d 1011, quoted supra: applicability of Sec. respect
With time, determining, applicability 'its one our without at Assuming, an limited the issue of abandonment discussion is subsequent acquisition “pious” land and the of title use of the college building burned by adverse user. 1011) Sec. that land was ever devoted to within
(denying any, thereupon land was aban sаys “pious” if use, that the doned; continued date. and that such abandonment provisions the use of land within the recognize Our cases Ry. may King, F. Louis-S. Co. v. be abandoned. St. Sec. and, among others, 2d cases 50 S. W. [11]; question fact, being a mixed is question infra. Abandonment permanently abandon intention to and the intention act—the limited to the abandonment is here physical act of nonuser —which pious user, by plaintiff claiméd What below. by Holmes, said J., early in the of Clark v. Hammerle, case 36 Mo.
proоf notwithstanding of abandonment is in and, accord the issue abandonment, differed in Spanish of land under law was involved, opportune remains instant issue. In accord: Strother *7 Barrow, v. 241, 250, 246 151 960, Mo. S. W. 963 Pocoke v. Peter [5]; son, 256 501, Mo. 516(b), 1017, 1021(b); 165 W. S. Roanoke Inv.
Co. v.
Ry. Co.,
Kansas
& E.
61-66,
S.
1000, 1003-1004; Ry. Bradbury, Missouri Pac. Co. v. 106 App. Mo.
450, 455, 966, 79 967; S. W. Enno-Sander Mineral Water Co. v.
Fishman,
Kansas 326, (IV), 897, 102 901(4), 348 13 10 R. S. W. L. A.
593; Ry. Co., Norton v. Duluth Minn. 151 126, Transfer 129 N. W.
907,
1916E, 760, 762(2);
Ann. Cas.
v.
Phy
to
Hatfield
Annotations
(
Cas. Atlanta, Ry. Co., &K. N. Co. Southern 122, 766, Fed. 11 Ann. 769; New York, Cas. H. & N. H. Rd. Co. v.
Cella, 88 515, 972, 1917D, Conn. 590, 595; Atl. Ann. Fruit Cas.
Growers’ D. & 516, R. v. Donald (Colo.), Co. Pac. 2d 98 A. L. R. 1288, 1291, supplementing to; there earlier annotations referred 15, 7; C. J. S. Seс. 14 C. 58-60; J. S. n. 28 C. J. S. Secs. p.
1 Am. uJnr. III; 142-144. Am. Jur. Secs. protects Section 1011 “public, of lands devoted a owner pious against or acquiring by charitable” use others title possession; privilege enjoyed a ownership generally. not in the of lands privilege specified is restricted to lands within uses. The is corporeal issue not thing, land; concerned with but with incorporated privilege, specified use land. In the vast majority of eases called to attention the issue has been so our the. interwoven with the land that an abandonment the use involved the any nonuser of the land. The instant involve case does not contention used; land was not being restricted an contention abandonment pious the land. To prevail, devolved abandonment defendant to establish an pious by use and We in addition a title in itself adverse possession. pointed
have preponderance of the evidence heretofore out that dispute possession. established the is worth-while There building the facts on A been erected on abandonment. had property negroes. totally destroyed for the education of It by fire and never Since that time was reconstructed. general
land has have observed farming purposes. been used for We by strictly property while Sec. 1011 held counties applies public purposes, consideration, applica it has no use there under tion to Dunklin property private held character. counties in their County 553, 557, Sеe. Chouteau, 25 W. then August R. action on S. 1889. Plaintiff instituted
following purchase, approximately after the destruction clearly nonpious only building on the established land. This years. use, while fact than 10 Mere nondevotion user for more consideration, necessarily the abandonment will not constitute accompany the nondevo- use. intention to abandon must of that by expressed may This intention be established to the use. tion with an intention acts and conduct consistent ¡declaration is raising an not an intent to abandon issue abandon. Conduct testimony did intend destroyed .person’s sworn by that he evidentiary testimony and his acts and conduct are His abandon. only, neither is conclusive over the issue, a fact presenting intention, Abandonment, resting upon far as the element of other. so right ownership land, as well operates instanter. another, is For this over the land of considered beneficial. easement presumption of an abandonment of among othеr is no reasons specific given imposed ownership of a tract assets. A different It is a restriction occupies essentially status. impinges right ownership;, imposed the use and insofar as *8 rather than enhances full'ownership freedom of detracts from the on liability ownership, land, of becomes a burden the value the property makes onerous asset, instead of an and to extent the land, case, user So, pious in the the continued of the property. instant improvements outlook making required capital and the the might user well have been considered too over future of in its following fire and led to culminated the of and burdensome in record to sustain plaintiff. ample There was evidence the sale to 1011, if thereto- finding nisi the land within Sec. the that the of subsequent and existing, was abandoned after the fire of fore City acquired strip the title to'the involved such abandonment possession. Tietze, other C. The case the Defendant Maude оf defendants. abutting Tietze, a,city lot Paul F. holds title to wife of defendant in the extending north, and 120 feet on Saline street feet, 51 Sedalia; Lee,W. Lee, Alice defendant J. and defendant S. wife of immediately lot; city lying two lots east of the Tietze holds title to wife, Lucy and Arvieux, husband defendants Lewis Arvieux and and immediately lying east the Lee lots. to three hold title lots boundary in the plaintiff’s petition abuts forms land described boundary of forms the said Tietze lot on the west and abuts and Tietze, The court found that Lee and lots on the north. said Arvieux public defendants, and the predecessors their title the named 20 passageway” feet enjoyed had a well defined generally “used and extending beginning north street in width line Saline boundary adjacent line to and west parallel north with .the boundary 20 the north lot and for a distance of feet north of Tietze eastwardly (if a distance thence line extended lot and west) said
561 passageway “over a well feet defined feet in adjacеnt width parallel boundary” to and with the north lines of said Tietze, Lee and lots; “open Arvieux said user had notorious,” been “hostile agreement and” license without more than 31 and that said defendants and years, generally acquired had prescriptive right passageway. said adjudged court accordingly. Although vigorously this judgment, attacks named defendants have filed no brief in this court.. appeal involving
Plaintiff, Sedalia, asserts respecting error same application issues 1011, suprа. holdings of Sec. We adhere our made hereinbefore
thereon; being identical facts involved. Plaintiff attacks the in favor of the named defend ground; on an ants additional viz.: Said defendants failed probative adduce substantial evidence to establish an adverse plaintiff’s land, going user of their case made no further than user, permissive establishment of a which is insufficient. Pitz Boyce, man v. S. 1104, 1105, W. 33 Am. St.
Rep. 536;
Collins,
Budd v.
gave
138. The issue
us some
concern;
presented
because we failеd to find it
trial court for
is matter
procedure; applying
remedy.
determination. This
to the
It is
settled that when a
procedure
well
new statute as
goes
into
before
final
governs
effect
decision
case it
regulates
procedure
subsequent
matters of
to its
therein
effective
Clark
date.
Railroad,
532(1),
43(1);
219 Mo.
finally up all certiorari from the appeals cases courts of same the original appeal ;on applicable as on the merits —was to a writ of — appeals 2, 1945, certiorari to a on January court of issued under the (Amend. 1884, VI), Art. Constitution of 1875 which limited the review in rulings. to a consideration conflicts Court en Banc reviewed that rulings. for in and not conflicts case on the merits The instant case court, sitting jury, as in was the November, tried to 1944. It was takеn under advisement and was entered December motion for new trial Plaintiff’s was-filed December 1944, and was February 10, 1945. overruled on The new General Code for Civil January 1,1945. Procedure became effective Section .(d), Subsec. “. provides: question .' . The sufficiency Code the
of said supporting, judgment may evidence the be raised whether or not question was raised in the court. appellate- the trial court shall upon both the and the evidence in review the case law аs suits an plaintiff’s point We equitable nature.” conclude review, is for it sufficiency the evidence in behalf of going the to named de p. 357, Laws Sec. for See Code Civil Procedure. fendants. also Millard, zler 153 S. W. 2d Het to the 359[3]; new Wright code, are in Brown harmony. (Mo.), 177 W. 2d 511 [6] ruled prior Tietze, along the owner of the lot Mrs. west'side of which street, Saline testified only leaves that the passageway time she they passageway “got .used the when ever the coal the others kindling”; “supposed open use”; it for that she our that they city alley. told her had a 12 foot Her alderman hus one time driveway through put there that it was to coal in the testified band sheds; driveway, thought not own the hé and his wife did that they for, it; only what their deed called that City owned years driveway they had been there had “a that this ’’ open. right it left to have driveway years; had been that the used for 38 Lee testified Mrs. only alley; it that she claimed an to own land considered that she driveway “right to for and the have maintained 'called deed her shed”; they that the would use it when coal wanted get to to they college go way that there; up would to the go that some- to back farmed and a man the land was .lived back there. times, and that recently purchased property. They had Arvieuxs knew For Mr. Arvieux the issue. instance: testified his value on little growed alley “because him he had fenced informed grantor garden put keep in a the weeds . . and he down.” . weeds before the trial. erected abоut Mrs. Lee had been fence This passageway part year back her lots a fenced had also “out keep plaintiff’s garden.” stock of her trial to before or so is, plaintiff contends, defendants by the named as showing made establishing falls user and short of permissive awith consistent (we plaintiff’s term use the include user of adverse considering title) land; defendants had the predecessors their adverse user. establish burden to “. p. Highways: Tit. . . the use of S., in 39 C. J. is stated It unoccupied highway рre- land for will be unenclosed, and vacant, . Also, . . by permission and been have sumed pre- . . . user will propositions that authority for the is there uncertainty as in a case of doubt or permissive been have sumed .; presumption use of is land . no . character its permission owner; no without public was way by the by the mere use claim is raised an adverse presumption merely arises road; presumption of a purpose original where the .; . . open using is what- from *10 use presumption that continued or is no permissive, was ’’ S., p. 673, Consult also C. J. claim. an adverse under possession 88, 89, Easements;. nn. Tit. Elliott, Streets, Roads and 4th p„ Ed. Jnr., p. 365, Am. Highway’s, n. Tit. See. 47. pleaded they
The named defendants the public and had acquired right by possession the passageway the to use adverse for more than right years. They claimed no in themselves that not sub- rights public. the the is showing any ordinate to There no public moneys any or spent passageway by work done thereon the any by authority City, or or the public defendants. although The litigant vigorously case and asserting rights of the public roadway away, to a short distance made no claim on behalf of the passageway. fencing portions this Defendants to right passageway curtailed they the user asserted existed in public. Lee, Mrs. asked its width when testified: “I wouldn’t ’’ know; there; always up there was fence drove and used it. There testimony establishing width, adjudged. was no foot as passageway inception. record indicate hоw this had its does Anyone open and unfenced. who go was- wanted to over the land cemetery through go college to the could or there. fences passageway certain left this outside erected defendants side, and enclosure, open plaintiff’s unfenced until few ago any period, some and short of limitation of the defendants started plaintiff's fencing passageway. Until these fences encroached land, nothing apprize of record to that thеre was established any rights hostile his use was exclusive of and to owner- defendants’ shown, ship. possession so as much visible had, He far they. place it. His passageway as The tenant on the made use pass passageway. Defendants stock free and did over were good neighborly pass conduct over make a case of out pleasure. revokable at land, amounting to mere license a public a road to make
“It more than a continuous use takes statutory must be an highway user. There Hood, State must continuous and exclusive.” period be Coberly Butler, 994. App. S. W. App. open be requires possession to notorious “The law notify and claim disseizin. posession order real owner of the land which possession or occupancy . . . It is not the mere rights, but prejudice his
must true in order known owner be its adverse character. “ possession rightful, is every . presumes . . ‘The law that to, title and “adverse” opposition or with, not in consistent possession”, upon “adverse therefore, party, relies ownership. A who set to the title “adverse” . prove possession . . must his the real owner .knowledge he, is, .; . . must show actual title, must of, he to', defiance opposition he claims and ineon- open and notorious user, show so occupancy *11 564 rights owner, with, injurious to, as well of the true
sistent
presumption of such knowl
will authorize from such
the law
facts
”
731,
722,
edge
Doolittle,
Burnside v.
324 Mo.
by the true owner.’
1011,
2d
1016
S. W.
[5].
Kelsey City
Shrewsbury, 335 Mo.
The instant case is like
v.
many
respects.
city
asserted title
71 S. W. 2d
There
general
passageway
to a
that had been in
adverse user
use
using the
lot,
across
unenclosed
public for
times, improved the
Plaintiff, at
passageway
convenient.
whenever
judgment
public.
A
in favor
passageway
the convenience
city
char-
reversed
failure to establish the adverse
land
user.
sum
the instant evidence: Plaintiff’s
acter of the
To
citizens, including plaintiff,
other
was unenclosed and defendants and
dо so.
passageway
it as a
convenient
made
when was
raising
presump-
Plaintiff also had the use
it. This falls short of
Fiorella
tion
defendants’
adverse user. See also
v.
Highways,
(Mo.),
782;
S.,
p.
Secs.
Jones
259 S.
C. J.
1024;
Co.,
9, 11; Sprow
Boston A. Rd.
163 Mass.
N. E.
v.
&
This
Franklin,
Am. St. Budd v. Wilson, Woodward, Whitney, D. Defendants T. Carrie Shеrman Association, Clyde Dovy Cemetery Heynen, Wilson Hill and Crown B. - President, made, right, have the record interest title or plaintiff’s petition. land described judgment the follow- is reversed and the remanded with cause is to ing directions-: The in favor of of Sedalia upon any finding user be based an adverse stand but is not to adjudged starting in 1879. The are to be found and other defendants subject right, and, to have no title or interest in and to the Sedalia, adjudged rights o£ the is to be found Barrett, CC., owner concur. of the land. Westhues and opinion by Bohling, adopted PER foregoing C., is CURIAM:—The judges opinion as the concur. of the court. All the