Gerstner v. Payne, 160 Mo. App. 289

Gerstner v. Payne

160 Mo. App. 289 | Mo. Ct. App. | 1911

JOHNSON, J. —

This is an injunction suit begun in 1910 to restrain defendant from closing a private road running along the west side of a field of forty acres owned by defendant in section 20, township 57, range 33, Buchanan county. On final hearing the circuit court made the injunction perpetual and defendant brought the case here by appeal.

The following plat introduced in evidence by defendant gives a correct description of the place in controversy:

*293

The farm of plaintiff contains fifty-six acres and consists of the northeast quarter of the southwest quarter of the section and sixteen acres in the northwest quarter of the southeast quarter. It is marked “A. Gerstner” on the plat. Defendant’s farm is the southwest quarter of the northeast quarter of the section. Originally it was a part of the tract of 115 acres designated as the Mary Williman tract which consisted of the west half of the northeast quarter of the section and of the larger part of the southeast quarter of the northwest quarter. This tract was inherited by Mary Williman from her father, Francis Wonderly, who, prior to his death in 1892, had owned it for many years.

George Gerstner, the father of plaintiff and son-in-law of Francis Wonderly, at the time of his death *294in 1868, owned a farm of 240 acres immediately south and east of the Wonderly tract. This farm contained the six quarter sections designated in blue on the above map and included the farm now owned by plaintiff. The road in controversy runs from the center of the section due north along the half section line to the public road which bounds the section on the north. Originally this private road was used by George Gerstner as a way connecting his farm with the public road. At first the private road did not cross the Wonderly farm along the half section line, but for twenty years or more it has occupied a strip fifteen feet wide immediately east of the half section line and for, perhaps, fifteen years the farm now owned by defendant has been fenced on the west border with a fence on a line fifteen feet east of the half section line to allow space for the private road. After the death of George Gerstner in 1868, his widow (plaintiff’s mother) continued in possession of her husband’s land (the farm of 240 acres) until 1892, when all of the land except the northwest quarter of the southeast quarter was divided equally among the five children of George Gerstner (including plaintiff). After this division the widow, who, meanwhile, had intermarried with Charles Williman, continued to live on the forty acres reserved until 1903, when the reserved forty was divided among the children. When this last division was made the deeds exchanged by the parties reserved a strip of fifteen feet for a road to connect with the road in controversy.

In 1907 plaintiff’s mother, the said Mary Williman, died and in 1909, the tract of 115' acres she inherited from her father, Francis Wonderly, was sold in-partition. Defendant bought the southwest quarter of the northeast quarter from the successful bidder at that sale. No mention was made in the proceedings in *295the partition suit nor in the sheriff’s deeds of the roadway in dispute.

Obviously the private road was established and maintained for the benefit of the Gerstner land. The Wonderly farm bordered on the public road and had no need of a private road across it as a means of egress and ingress. The record does not show an express grant by Wonderly to his son-in-law of a right of way —an easement over his farm — and it is the contention of defendant that Gerstner and his descendants were but licensees, holders of a mere permissive right, revocable at the will of the owners of the servient lands.

Plaintiff’s cause of action in reality is based on prescription. That is to say that for more than ten years he has been in the adverse, open and uninterrupted use of the- road under claim of right. He was not a trespasser, is not asserting “squatter” rights and, therefore, does not run afoul- of the rule stated by the Supreme Court in Sanford v. Kern, 223 Mo. l. c. 627, that “no flux of time will ripen a bad title into a good one unless possession is blessed by a claim of right. ’ ’

Certainly his grandfather, Francis Wonderly, and his mother, during the long period of their ownership of the servient land, recognized his right to the use of the road and we think, as did the learned trial judge, that all the facts and circumstances disclosed in evidence, some of which we have not mentioned, show quite clearly that the right conferred upon the owners of landlocked farms in the. heart of the section was intended to be greater than that of a mere revocable license.

The issue of whether the user of a private road over the land of his neighbor is to be regarded as a licensee, as the recipient of a favor born of neighborly good will, or as the grantee of an easement acquired by prescription, depends for its solution on the peculiar facts of the given case. The bare fact that plain*296tiff and Ms ancestors were allowed to enjoy the use of the road a quarter of a century, with the knowledge and. apparent consent of the owners of the servient land, of itself, would not invest him with a prescriptive easement, hut the rule is well settled that proof of such use, for the necessary period, without evidence to explain how it began, raises a presumption that it was adverse under a claim of right and shifted the burden to defendant, to show that it was by virtue of some license, indulgence, or agreement, inconsistent with the right claimed. [Anthony v. Kennard Bldg. Co., 188 Mo. 704; 14 Cyc. 1196; 22 Am. and Eng. Ency. of Law 1202; Cox v. Forest, 60 Md. 71; Jones on Easements 163; Washburn on Easements, 156.] Defendant'has not discharged this burden, since the evidence, as a whole, does not support the conclusion that the use of the road by the interior land owners was intended to be a permissive right, revocable at will.

We do not agree with defendant that the failure to reserve the easement in the sale of the Wonderly lands under the decree of partition must defeat plaintiff in this action, for the reason that he was a party to that suit and, therefore, bound by the decree rendered therein. The easement of plaintiff had been vested before that suit was commenced and in law the sale was made subject to such easement. The judgment is affirmed.

All concur.