Thе dispute concerns a promontory of land, known as Cooper’s Point, on the main
The petition of the plaintiffs comes in two counts. Count I pleads that the Upper Road is a public road and seeks to enjoin the defendants from interference with that use by the plaintiffs and to enforce removal of the posts and gates installed by the der fendants. Count II seeks determination that the plaintiffs own easements by prescription over the Lower Road access to the Lake and over a strip of lakefront used to dock their boats, and seeks also to enforce removal of posts and gates installed across that road by the defendants and to enjoin interference with the use of the easements by the plaintiffs.
The court found for the plaintiffs on Count I and adjudged that a twenty-foot width of the Upper Road was a public roadway, enjoined the defendants from obstruction of the roadway or interference with use by the plaintiffs and ordered the defendants to remove the posts and gates installed within the public way. The court found for the defendants on Count II of the petition. The parties cross-appeal from the judgment adverse to each.
COUNT I: THE UPPER ROAD
The defendants contend that the judgment on Count I was erroneous because the evidence proved neither a public road established by dedication nor a user and public expenditure under Chapter 228, RSMo 1978. More exactly, the defendants contend that a donation by deed of the Upper Road failed for want of a certain description and that the order of the County Court to open the Upper Road as a public way wаs not recorded as required by § 228.190.
A public road may be established by prescription, or by dedication, or by the effect of statute. Gover v. Cleveland,
The evidence on Count I, taken.most compatibly with the judgment, shows: The present location of the Upper Road dates from about year 1932 when the Union Electric Company impounded the Osage River at the Bagnell Dam to form the Lake of the Ozarks. The lowland road to the Osage River inundated by the Lake waters was relocated on the Point with funds paid to Morgan County by the Union Electric Company. The Upper Road
The lands on the Point were at that earlier datе in the common ownership of Peter Milton Cooper. In September of 1923, Cooper undertook to convey to Morgan County by recorded quitclaim deed
*363 A strip of land (40) feet wide for a public road across my farm in Section 16, Township 40 North, Range 16 West, of the 5th Principal Meridian, as surveyed and located by the Highway Engineers of Morgan County, Missouri.
The deed by which defendant Supreme Express and Transfer Company [the defendant Bussmann] acquired title to the land on Cooper’s Point mentions the conveyance by quitclaim.
The defendants contend that the description in the Cooper quitclaim transfer so lacks definiteness as to render location of the roadway impossible. They contend also that the allusion by the deed to a survey by the Highway Engineers of Morgan County cannot be borne out by the records of the County Clerk. We conclude that the deed by Cooper in year 1923, even if sufficient to locate the roadway over his land, did not, without a public acceptance, amount to establishment of a public way. A county court alone has authority to establish a new county road — with or without petition. Foster v. Dunklin,
After the lake flooded the lowland, Cooper in November, 1931, once again conveyed a right-of-way by deed filed with the County Clerk, this time as an incident of a [now] Chapter 228 proceeding to open a public way. The petition to the County Court to locate the public road gave the beginning, course, and terminus of the way, the names of the owners of the lands affected [§ 228.-020], notice to them of the proceedings [§ 228.030], upon which, in the absence of remonstrance [§ 228.040], the County Court directed the county highway engineer to survey the proposed way [§ 228.060] and, upon proof that the right-of-way was secured, the County Court then ordered the road established [§ 228.080]. Thus, the Upper Road was declared a legally-established county road in year 1932. The relinquishment of the right-of-way by Cooper was filed in the County Court of Morgan County as public record [§ 228.090] but not with the Recorder of Deeds of that county as also required by that statute.
The defendants contend that neither they nor their predecessors in title had either the cоnstructive notice of a public road over their lands that a recorded deed imparts, nor actual knowledge of the instrument of relinquishment of that strip to public use, so that the conveyance is invalid as against them.
The jurisdiction of a county court to open a public way, once vested, does not lapse merely because other formal requirements of Chapter 228 have been met only imperfectly. Ripkey v. Binns,
The defendants concede that the failure to record the conveyance of right-of-way as required by § 228.090 was a defect in the statutory proceeding to establish a county road not essential to jurisdiction to adjudicate the subject matter of the petition, and so is cured by a proof compliant with § 228.190:
All roads in this state that have been established by an order of the county court, and have been used as public highways for a period of ten years or more, shall be deemed legally established public*364 roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same.
The defendants contend, however, that there was no proof of public money or labor spent on the Upper Road for ten continuous years for any period from December 31, 1932, the date of the order to establish the road, so the failure to record the conveyance of right-of-way was not meliorated as to them and they are entitled to the land unburdened by that public use.
We conclude, however, that the Upper Road was lawfully opened as a public way by — as to the defendants — a regular order and proceeding of the county court under Chapter 228 and that whatever formal defect resulted from the neglect to record the conveyance of right-of-way did not affect the defendants. Accordingly, the plaintiffs had no need for resort to § 228.-190 to perfect the Upper Road as a legally established public way.
We assume for purposes of contention that § 228.090,
The acquisition of the Point property by the defendants was no casual matter. It was concluded only after protracted negotiations and a familiarity with the premises. The defendant Bussmann saw the Lake property for the first time in 1956, when he came to know Deem, the owner [and common grantor of the plaintiffs]. He visited the property intermittently, but regularly, until 1962 when he purchased the land after long discussions with owner Deem. From his first view in 1956, the Upper Road across the center of the tract was a defined way, and obviously in use for access to the Lake by the public as well as by the residents of the Point. The continued use by the public of the Upper Road as a means to the waterfront was palpable to Bussmann even after year 1962, when the defendant Supreme Express & Transfer Company took title, and went unchallenged until he installed a gate across that way in 1975. That public use, whatever the precise nature, was perfectly apparent to Buss-mann — and the law assumes, fairly, that the parties to a real property transaction acted with direct reference to the servitude which obviously affects the land transacted.
As our discussion notes, at acquisition by Supreme Express the Upper Road had been in continuous use as a public way since installation after order of the county court on December 31, 1932. The warranty deed by the Deems to the Supreme Express subjects that grant to a “Right of Way Deed to County for County Road 40 feet wide, as recorded in Book 1, page 201.” That conveyance was the early tender of right-of-way by Cooper to Morgan County in 1923— before advent of the Lake of the Ozarks— which failed for want of official acceptance by the county court. That conveyance described the intended donation of right-of-way to the county as “a strip of land (40) feet wide for a public road across my farm in Section 16, Township 40 North, Range 16 West of the 5th Principal Meridian, as surveyed and located by the Highway Engineers of Morgan County, Missouri.” The defendants contend that the 1923 conveyance of right-of-way so lacked definiteness as to render impossible the location of the road. They contend further that search by the county clerk found no record of the survey to which this conveyance alludes and so inquiry would have yielded no more conсlusive location of a county road over the property than did the description in the warranty deed to Supreme Express from the Deems.
That early tender by Cooper to Morgan County in year 1923 [to which the Deems’ deed to Supreme Express alludes], lapsed for want of acceptance by proper authority. Thus, had Bussmann made inquiry for the survey with the county clerk- the reposi-tary by law of records which affect establishment of a public road — they would have learned at once that the strip of land described in the deed from Deems had never been opened as a public road and the property was not subject to that servitude. They would have learned just as promptly, however, that another donation of right-of-way was made by the same grantor — Cooper — to the same grantee — Morgan County — on November 19, 1931, and was sanctioned as a public road by order of the county court on December 31,1932, and was extant over their lands.
It was sufficiently suggestive to a purchaser with personal knowledge for six years of a public user over a fully-defined roadway across property intended for acquisition, and then accepted by a deed which expressly subjects the fee to a right-of-way for a county road, albeit by mistaken reference, as to constitute actual notice of an existent public use over the property and an implied notice of the servitude in fact established by the county court order which a reasonable inquiry would have disclosed readily. Drainage District No. 48 of Dunklin County v. Small, supra, l.c. 502; Guerin v. Yocum, supra, l.c. 48; Loumar Development Co. v. Redel, supra, l.c. 257.
The defendants took subject to the open and visible public easement over their land acquisition. They took also subject to the servitude their own claim of title would have revealed by an ordinary diligence. That the deed of relinquishment of right-of-way was not filed with the Recorder of Deeds of Morgan County was an error under the Chapter 228 procedure for the establishment of a public road which did not affect Supreme Express and Transfer or Bussmann who had notice otherwise and so' do not stand to complain. Summers v. Cordell,
The defendants contend also that if the Upper Road was ever a public way it lost that character and became a private road by virtue of recitals in the deed from Deem to Supreme Express which confined travel on the Upper Road to a restricted class. The defendants derive this premise
The contention fails for more fundamental reason. A road once installed as a public way, the right of the public to use it becomes vested and, absent vacation or abandonment [§ 228.190], cannot be divested thereafter. Liberty Township of Stoddard County v. Telford,
The order of the county court on December 31, 1932, to establish a public road on the right-of-way conveyed to Morgan County by Peter Milton Cooper and wife on November 11, 1931, was given prompt effect by the installation of the Upper Road.
The testimony of Peter F. Cooper, another lifelong resident around the Point, also described his work on the installation of the Upper Road as a public way under the order of the county court. He later delivered mail along that road from 1947 into 1963. His memory was that both the predecessor- road — before creation of the Lake of the Ozarks — and the successor Upper Road were always public ways openly and continuously used by himself and the public for access to the water, without restriction or obstruction. The Upper Road remains in the same location as at the time of installation.
The plaintiffs Osburn became familiar with the Point in year 1948, and at that time the Upper Road was in place all the way to the water. The entire promontory crossed by the Upper Road was then owned by the elder Cooper. They purchased a lot on the Point in 1949, elevated one-hundred feet above the Lake and the Upper Road was the only practicable means of descent and access to the waterfront and their boat dock. The Osburns and the other plaintiffs with contiguous lots and the public used the road freely without challenge or obstruction from Cooper. Their use was altogether untrammeled until the defendant Bussmann installed metal posts and gate across the Upper Road in year 1975 — albeit Bussmann did not close and fasten the barrier. The plaintiffs Spencer purchased a tract on the Point in year 1968. He and his wife became familiar with the locale in 1951, when he leased a cabin from Deem [who conveyed a separate tract to the plaintiffs Osburn], The Upper Road was then in place as was the lakefront area. They and other property owners made continuous and unobstructed use of the Upper Road as did other persons, vehicles and animals. There was never any threat to deny access over the Upper Road until the gate was installed, although never closed, in year 1975. [The testimony of the other plaintiffs was received on the stipulation that it would be “in all respects to the same effect” as that given by plaintiffs Osburn and Spencer.]
All the witnesses, for both the plaintiffs and defendants, who had been on the Point land from construction of the Upper Road as a county way until installation of the gate, without exception, testified that the Upper Road was used by the public as well as by the property owners for access to the lakefront.
There remains the question of the width of the Upper Road. The judgment locates the roadway across a strip of land twenty feet wide, ten feet on each side of the described centerline. Section 229.010 provides that “[a]ll public roads in this state which hereafter may be established shall not be less than thirty feet in width.” There is authority that creation of a public road under .§ 228.190, by continuous public use for ten years and upon which public money or lаbor was expended for that period, may be valid although the width created was only eighteen to twenty feet. Drydale v. Kiser,
A survey of the Upper Road and Lower Road was attempted by Slagle, current Surveyor for Morgan County, as trial preparation for the plaintiffs. He was prevented access to the premises for that purpose by caretaker Gresham on the instruction of defendant Bussmann. [It happens that Sla-gle had made a private survey of the Point property for Bussmann, whether before or after conveyance from Deem and therefore additional notice to Bussmann of the location of these defined roads, does not appear.] Slagle ultimately delineated the center line of the public road established by the county court order of December 31, 1932
The county road was installed to a width of thirty feet, as ordered by the county court, and commensurate with the easement conveyed to the county by the Cooper deed of right-of-way. The evidence was that the location of the Upper Road coincides with the county road as originally installed. The surveyor Slagle found, however, that the travelled portion of the Upper Road was twenty feet in width, and the court adjudicated that dimension as the width of the Upper Road as an established public way. That element of adjudication was erroneous. The Upper Road became a public road by the proceedings under Chapter 228 and once legally established, the public right to use the entire surface of the easement became vested and could not be divested thereafter, absent vacation or abandonment. Liberty Township of Stoddard County v. Telford, supra, l. c. 844. The failure to use the entire width of a county road does not constitute abandonment of any portion of the way. Webb v. City of East Prairie,
The Upper Road was lawfully established as a public road thirty feet wide on a route with definite beginning, course and terminus by petition and notice to the landowners affected. The order of the county court to locate the public road was then given effect by construction of a course thirty feet wide, and remains in place as the Upper Road. Count I properly found that thе Upper Road was a county road from which the defendants were ordered to remove the posts and gates and that the defendants were enjoined from any obstruction on that public way and from interference with the use of that way by the plaintiffs. Count I should have also adjudicated properly that the Upper Road was thirty feet wide along the described course.
The judgment on Count I is affirmed but remanded for that correction.
COUNT II: THE LOWER ROAD AND THE DOCK AREA
The plaintiffs in Count II claimed the right of easement by prescription of travel over the Lower Road and over a strip of waterfront for Lake access and also that defendants ought to be restrained from interference with that use and be required to remove the posts and gates installed by them across that roadway. The defendants answered that the use by plaintiffs over the Lower Road and the waterfront area was by their permission and under a license reserved to the defendants in the grant of the property to them by Deem, duly recorded.
The court found against the plaintiffs on Count II without a statement of grounds but with the parenthesis that the judgment did not undertake to determine the legal effect, if any, of the recitations in the deed of grant from Deem to Supreme Express on the claim of the plaintiffs to the prescriptive usе of the Lower Road and dock area.
There shall further be reserved free right of ingress and egress over a route to be selected by party of the second part [Supreme Express], its successors or assigns, to a point on the Cove to be selected by party of the second part, which point may be used without charge by each owner of, or party having leasehold interest in, the property on the South side of said private road, for erection and maintenance of a floating dock or landing point, said right to extend for a period of twenty (20) years from December 31, 1961.
The evidence shows conclusively that, as to the western length of the Lower Road and the dock area which it serves [see Appendix], a prescriptive easement inured to the plaintiffs and their successors, so that any passage which the later deed from Deem to Bussmann may otherwise import in favor of contiguous landholders becomes irrelevant to prove that the use was permissive at inception.
The Lower Road runs from the western terminus of the Upper Road at the waterfront along the northern bounds of the Supreme Express property along a cove inlet and then to the east conjoins once again the Upper Road at a north and south county road. All the evidence agrees that a route along the Lower Road was in being at least by year 1943, and was used as access to the cove area by the public. The evidence is as certain that the portion of the Lower Road which faces onto the cove inlet was installed by the county work force [apparently under private auspices] in year 1932 at the same time the Upper Road was constructed by order of the county court. A turnaround was installed as part of the private
The evidence is clear that this segment of the Lower Road which skirts- the cove and faces the dock area was in continuous public use since installation in year 1933. It is undisputed that the plaintiffs and their predecessors in title used the Lower Road segment opposite the dock area continuously, openly and without obstruction from the date of the conveyances to them of their tracts on the hill. Nor is there doubt that the plaintiffs used the cove area for their boats and other water sport without threat until the defendant Bussmann raised the gates on the Upper Road and Lower Road. The plaintiffs Osburn received their conveyance from Deem in 1949, and the plaintiffs Williams were grantees from Deem almost contemporaneously. They joined to install, first a wooden dock on the cove in 1950, and then in 1962, a replacement steel pier to accommodate two craft. Access to that facility was necessarily from the western segment of the Lower Road upon which it faced and across a strip of shore line. In fact, the defendant Bussmann conceded that from 1956 — his first familiarity with the Point — and since, that portion of the Lower Road was used by the plaintiffs and their predecessors in title and others for access to the waterfront.
The evidence allows no doubt that from acquisition of title from Deem in 1949, the plaintiffs Osburn, their guests, other tract owners and the general public used that segment of the Lower Road and dock area openly, continuously and without interruption until the threatened closure of that passage by the Bussmann installation of gates in 1975. The plaintiffs, nor any others, ever sought permission for such use from Cooper, Deem or Supreme Express. To the contrary, the evidence shows only accession to such user by the fee holders of the Lower Road segment and shoreline. In about 1966 Bussmann requested Osburn and Williams to move their boat pier down the cove .to accommodate a dock Bussmann had specially constructed for his own purposes. The plaintiffs acceded, but only after Buss-mann agreed to install a series of steps necessary for easy access from the road across the shore to the relocated dock. Nor does the evidence allow doubt that after Supreme Express came into ownership in 1962 Bussmann was aware of the open and continuous user by Osburn and the plaintiffs of that Lower Road segment and the dock area and that he made no gesture— until the 1975 gate installation — to contest their use. Rather, Bussmann affirmed repeatedly that his only intention was to exclude strangers: “[T]he plaintiffs and the people who lived at the top of the hill and their friends could cross the property [to the boat docks].”
The defendant Bussmann explains his acquiescence as merely an extension of the permission to the cove reserved until December 31, 1981, to contiguous landholders in the. deed from Deem to Supreme Express — that such use was permissive, not adverse. That provision of deed [for. reasons stated in note 11] was without effect to establish' a permissive user by the contiguous landowners over the Supreme Express lands. The testimony and conduct of Buss-mann, in any event, belie such a motive. His request to Osburn and Williams to remove their dock was as a suppliant, and not as one who claims by right to designate the “point on the Cove” for placement of the docks which the Deem deed expressly “reserves” to Supreme Express. It was only after Bussmann agreed to duplicate a stairway that the plaintiffs allowed their dock to be moved. Also, in his own idiom, it was only on account of “the complaints I heard, Mr. Osburn chewеd my caretaker out”— that Bussmann never attempted to close the gates across the roads. Nor did Bussmann ever assert to any plaintiff that their use was tolerated and permissive only, by the terms of the deed “reservation” or other
The efficacy of the deed “reservation” as a permit to use the Lower Road and cove area aside, the evidence shows without dispute that the plaintiffs Osburn had perfected an easement by a prescriptive adverse user of that segment of the Lower Road and the shore and dock area which adjoins long before the conveyance with “permissive” provision of deed from Deem to Supreme Express in 1962. The grant by Deem to the Osburns was in 1949. From that date, the Osburns used those areas openly, continuously, without interruption and adversely until 1962 and thereafter. No evidence disputes that inference. “An easement by prescription to use a roadway across the lands of another may be established by use which has been shown to have been continuous, uninterrupted, visible, and adverse for a period of ten years.” McDougall v. Castelli,
The evidence as to the plaintiffs Spencer was that they received conveyance in year 1968, but that their predecessors in title, Lucker and Zwisler, had used the Upper Road and Lower Road openly, at pleasure and without permission for access to the lakefront. Lucker testified he had made such use from 1953 and then conveyed to the Spencers. They, in turn, have made a continuous use from 1968 and thereafter. Not only did Lucker not seek permission, he had no knowledge who owned the land over which the roads passed. [The Zwisler-Lucker-Spencer title did not derive through Deem so, the Bussmann assertion as to the effect of “reservation” in the Deem deed to Supreme Express as notice of a permissive user, even on its own terms, has no relevancy to the Spencers.] This evidence of a use, open, continuous, uninterrupted and under
The proof of a use open, notorious, continuous and uninterrupted for the period of prescription raises a presumption that the assertion by plaintiffs to the Lower Road segment and to the shore and dock areas was adverse and under a claim of right. Such a proof casts the burden on the landowner to show that the use was permissive rather than hostile at inception. Speer v. Carr,
The judgment of the trial court on Count II was against the weight of the evidence to the extent it adjudges against the plaintiffs their claim for a prescriptive easement over the Lower Road segment which faces the dock area and their claim for prescriptive easement over the shoreline which adjoins the Lower Road to the south and the dock area to the north.
There remains to consider the length of the Lower Rоad from the easement area to the east. The origin of the full Lower Road is obscure. The two county employees who worked to install the Upper Road in 1932 each had a disparate memory of the event. Cooper recalled that the county also constructed the Lower Road at the same time the Upper Road was fashioned. Nolting [later County Judge], the other worker, had no such recollection but testified, rather, that the county work ended with the private extension of the Lower Road and turnaround opposite the dock area. Hayes, another county worker who bladed the Upper Road from 1943 through 1946, testified [for defendants] that he also worked the Lower Road privately. It was his recollection that the Lower Road extended only to the end of the cove but did not go “plumb through at that time.” Whatever the true fact, the evidence of the plaintiffs Osburn and Williams shows, for themselves, an adverse use of the Lower Road from end to end from 1949 and thereafter. The evidence of the plaintiffs Spencer shows such an adverse use by Zwisler and Lucker, predecessors in title, from 1953 until 1968 when the Spenc-ers became grantees and by them thereaft
The defendаnts contend also, however, that as to the eastern extension of the Lower Road, whatever right by prescription may have accrued to the plaintiffs was abandoned by them by the time Supreme Express acquired title from Deem in 1962. The defendants contend, in fact, that as early as 1956 when Bussmann first became familiar with the Point [by his testimony] “[t]here was no Lower Road, [or] if there was a road it was so overgrown with weeds, trees and brush” as to require a bulldozer to open the road for use. This he did in 1962 and 1963 when Bussmann engaged one MacMasters to make the improvement so that “the people at the top of the hill [could] come down the Upper Road and go out the Lower Road but they would never go out the Lower Road.” Bussmann made it clear that the portion of the Lower Road not open to travel was “the eastern portion of the Lower Road” and not that segment of the Lower Road which adjoined the docks. In his words: “That has always been there” and continuously used by the tract owners on the hill. The substance of the Bussmann testimony was that from his first familiarity with the area in 1956 until 1962 when he became owner, that segment of the Lower Road east of the dock area was neither used nor usable.
The testimony of the plaintiffs Osburn, Spenсer and witnesses Frederick, Lucker, Dalton and Sevorens contradict the contention of abandonment. Osburn used the Lower Road continuously from 1948 as did Williams. Spencer and predecessors used the road continuously from 1953 [when, according to Bussmann, it was unusable and unused] and thereafter. Frederick used the Lower Road many times from 1955 until he left the area in 1963 — virtually the identical span Bussmann contends the course was inoperable. The defendant refers to the testimony of Odam that in the early 1950’s he came to the cove regularly to deliver boats or fix the docks. He used the Upper Road for access and then across the Lower Road to the docks, but returned by way of the Upper Road because from the boathouse to the east, “[the Lower Road] was •pretty bad . . steep and rough and not used too much.” The defendants refer also to the testimony of still another witness called by the plaintiffs, Dalton, who had come to the Point intermittently from 1943 through 1966, that “[later], I' don’t recall exactly when, that road [the Lower Road] became very rough, and we quit using it. We would turn around and come back the same way we went down.” That impassable condition of road, however, refers to the late 1960’s, some time after — according to Bussmann — the Lower Road had been improved for use.
These accounts of the road condition and use during the critical period of limitations bear directly on both the contention of plaintiffs of prescriptive right and the contentions of defendants that the right never accrued, but if so, was thereafter aban
A use once accrued by prescription may be abandoned and the easement extinguished. St. Louis-San Francisco R. Co. v. Dillard,
The evidence on the issue of abandonment coincides with that of adverse user both as to substance and character of contradiction and becomes an issue of fact for the trial court to assess in the first instance. The evidence on neither issue falls with sufficient decisiveness for a court of review to say as a matter of law whether sufficient or insufficient to prove the fact. Nor do we assume, as to the eastern length of the Lower Road, the facts to be found compatible with the judgment for the defendants on Count II. That for the reason that the adjudication as to the western segment of the Lower Road was erroneous as a matter of law as contrary to the weight of the evidence, and we do not assume that the determination as to the remainder of the Lower Road was not affected by the erroneous judgment which denied easement by prescription over the remainder segment.
The judgment of the trial court on Count II which denies plaintiffs their petition for an easement by prescription over the western segment of the Lower Road and the dock and shoreline areas was against the weight of the evidence and erroneous as a matter of law. Murphy v. Carron,
The petition pleads an easement area of two hundred and seventy-five feet of shoreline between the road and the lakefront but the incidences of user by the various plaintiffs, as to the dock placements, swim sports, storage of craft and other- water activity do not appear with sufficient clarity for informed determination by a court of review. The evidence concedes that the Lower Road segment actually used for waterfront purposes by the plaintiffs ex
The judgment on Count I is remanded for modification and is affirmed as modified. The judgment on Count II is reversed and remanded for proceedings consistent with our instructions.
All concur.
Notes
. The landmarks and other references significant to review are cited on Appendix of the opinion, the depiction of County Surveyor Sla-gle and received in evidence as an exhibit.
. The Upper Road has been known also, variously, as County Road Y-13, C. H. Sidebottom Road, Peter Milton Cooper Road or, simply, as Cooper Road.
. The full text of § 228.090 reads:
The county highway engineer shall file all relinquishments, deeds and plats of said road in the office of the county clerk, who shall preserve them together with the order of the court establishing the road as public records in a book to be provided for that purpose. All such deeds shall be filed and recorded in the office of the recorder of deeds.
The section does not say when or by whom the conveyance shall be recorded with the recorder of deeds but, presumably, allows that to any party in interest. Thus, the option remains open to the plaintiffs to perfect the formal county court proceedings to establish the Upper Road as to future purchasers by the mere recordation of the Cooper convеyance of right-of-way.
. The deed of conveyance of the fee upon which the Upper and Lower Roads are located recites the defendant Supreme Express and Transfer Company as sole grantee. The defendant Bussmann, concededly, is the alter ego of that corporate grantee, in fact made the purchase and precipitated the litigation by installation of a gate across each road. For the purpose of this litigation the interest of the defendant Supreme Express & Transfer Company and the defendant Bussmann are interchangeable.
. It aids understanding that Cooper was sole owner of the entire Point headland both at the time of the abortive conveyance in 1923 of the forty-foot-wide strip of land “across [his] farm” and of the effective conveyance for right-of-way in 1931, of a thirty-foot-wide strip of land platted as “the C. H. Sidebottom Public Road in the County Clerk’s Office in the Court House in Morgan County.”
. The testimony by Nolting and the other witnesses is uncertain as to the exact date of installation and completion of the County Road, but the dates we use are the most congruent with the documentary evidence.
. One witness, Odam, who leased a cabin on the Point in 1935 from Peter Milton Cоoper, thereafter owned property there and continued to use the Upper Road for access to the Lake through 1959, even after he sold that site was denied passage on the Upper Road to the water by the defendant Gresham, caretaker for defendants Supreme Express-Bussmann. That incident, in about 1975, was the first time his [or any other reported] use of the Upper Road was ever challenged. The defendant Buss-mann, we note, does not contend that the Upper Road was not used by the public, but that as to them, that use was trespass. Nor does he contend the plaintiffs and other Point landowners do not have the right of access over the road to the lakefront, but only that, as to them, that access is permissive through year 1981, by virtue of the Supreme Express deed from Deem, and not as a passage over a public road.
. Our affirmance of judgment on Count I rests on the determination that, as a matter of law, the Upper Road was established as a public roadway by the formal order of the County Court of Morgan County in culmination of the.
. The judgment of Count I for a public roadway twenty feet wide gives color to the possibility that the adjudication was mistakenly formulated under the procedure and proof of § 228.190.
. The certified copy of order to establish the public road by the County Court of Morgan County shows the date November 3, 1931, but the county clerk treats the instrument as dated December 31, 1932, — perhaps from a marking of that date on the reverse side of the record. In any event, the petition for the location of the public road was filed in October, 1931, and the Cooper conveyance of right-of-way was dated November 19, 1931.
. The deed, from Deem to Supreme Express with “reservation” of passage in favor of property holders not in privy to the transaction, for a number of reasons, was without effect as a conveyance of interest in that land and, a forti-ori, to prove a permissive use of the land by them. First, on the basic principle that a transfer of interest in realty requires words of grant, a grantor cannot create an interest by way of reservation in a third party stranger to the instrument. Thus, the “reservation” attempted by Deem in the deed to Supreme Express in favor of the contiguous landholders [plaintiffs] for ingress and egress to the Cove was inoperative as a grant of interest to the realty — unless to confirm a right already existent in those third parties. 6 Thompson on Real Property § 3091 (1962 Repl.); Williams v. Diederich,
. In conjunction with request by Bussmann that Osburn and Williams move their dock to allow installation of his own, Mrs. Bussmann delivered to Osburn a transcription of the “reservation” in the deed from Deem to Supreme Express. Osburn responded: “I don’t care what Walter Deem or Deem Oil Company put in that deed conveying the property to Supreme. That I had used that road for fourteen years and expected to continue to use it.” The plaintiff Williams adopted the same position. The other plaintiffs were not aware of this event. The plaintiffs Osburn and Williams responded to Bussmann [in the words of Os-bum]: “I told him [Bussmann] we wouldn’t move it [the dock] an inch until he promised to build steps and I would not ever move it where he had set that stake.” Bussmann acceded to this condition. As we have iterated, the claims of Osbum and Williams to the prescriptive use of the dock area and the portion-of the Lower Road which adjoined was perfected some years before the Deem conveyance with “reservation” and could not be affected by that provision.