223 Mo. 616 | Mo. | 1909
Suit to establish a right in plaintiff to a private way in Cape Girardeau county, and to remove obstructions put in the way by defendant. The ultimate facts relied on to show a user as of prescriptive right, or adverse possession under a claim of right, are set forth in the petition with sufficient particularity to permit the proof put in. As no point is made on the sufficiency of the petition, it will not be further noticed.
The -answer raised the general issue.
Judgment for defendant. Plaintiff appeals.
There is little or no dispute on material facts. In 1889 plaintiff owned a body of timber land (the rise of one hundred acres) in section 30, township 32, range 13, with no access to it by public road or private way. A half mile east,' following the meandering of Hubble Creek, ran an old north-and-south public road known as the Jaekson-and-Pocabontas road. Between that road and the south part of plaintiff’s woodland, lay a tract of cultivating land we will call A. North of and bordering A, between the north part of plaintiff’s land and said public road, lay another tract we will call B. There was an east-and-west partition fence between A and B. At that time one Flynn owned tract B, and Nannie E. Baldwin, the daughter .of Thomas W. English, was in possession of tract A. Whether she was covert or discovert at the times in hánd is dark. As a matter of fact she seems to have claimed the land,
In 1889 the party fence between tracts A and B had run down at the heel through decay and inattention. Lured by growing crops and a broken fence, the Flynn stock trespassed on the crops of Nannie’s tenant and wrangles and squabbles sprung up between the Flynns and her tenant, F'ullenwider. At this immediate time Sanford was clearing his woodland to make a farm of it and desired a right-of-way opening it to the Jaekson-and-Pocahontas public road. To that end he opened negotiations with Nannie, thinking her the owner of tract A, and made a proposition to her to furnish the labor and material for a ten-rail fence in consideration of a private way thirty feet wide and half mile long off of the north end of tract A, running from his woodland to said road. The proposition was accepted by her. There is evidence indicating it was considered by her and her friends, including her father, a good proposition, in that it would furnish her protection against the ravages of the Flynn stock, fence tract A securely in.and keep the cows out of her corn. Accordingly, she instructed her tenant, Fullenwider, to stake out a strip a half mile long and thirty feet wide off said north end and act in her stead in accept
There was other testimony, substantially uncontradieted, to the foregoing effect, and we think it satisfactorily established that in consideration of Sanford’s building the fence to protect her tenant’s crops and inclose her own land for renting and cultivation purposes, Mrs. Baldwin agreed to give and did give him said roadway from his woodland to the Jackson-andPoeahontas public road.
It seems after the lane was open and in use, Sanford discovered the legal title to the strip was in Mr. English. While on the stand and being examined in chief, it was sought to show the substance of a conversation between the two. Objection was lodged against this testimony (English being dead) and sustained. Subsequently, on cross-examination, it cropped out that when Sanford went to English, he, English, told him to use the road and keep it in repair; that Flynn (quoting) “ought to have given part of the lane but it was the best thing Nannie could do;” further, that when Sanford found out that Mrs. Baldwin was only to get the land at Mr. English’s death, and, as said, went to see him, he, English (quoting), “laughed and said the road ought to be through there and that none of them would interfere with me.” We think the testimony establishes that from 1889 up to the 'time the road was closed by Kern, Sanford on all occasions kept the roadway in repair by working it and repairing a bridge thereon (except that the Flynns helped a little in working a part of the road at a certain time).
There is no testimony on the value of the thirty-foot strip of land (something less'than two acres), in 1889 ; nor as to the cost at that time of making and hauling rails and building a good ten-rail fence one-
The main question in the case turns on whether Sanford’s use of the road was under a revocable license, i. e., merely permissive and in a neighborly way, or whether his user was of right and his claim adverse under his executed contract. It will, therefore, be not amiss to set forth the testimony with more particularity. There is no dispute but what Sanford and his tenants and those having business with them or on his farm, used the road openly and continuously for fourteen years or thereabouts without any question raised as to the right of such use by the owners of tract A.
Sanford says, among other things, that his proposition in writing to her was that he would build a half mile of fence and furnish all the material “if she would give me a roadway;” that the fence was the consideration for the road; that his proposition was accepted and performed; that the road, when opened, became his only way to market his wood and farm products; that before Kern bought tract A he came to see him, Sanford, about buying Sanford’s said land and inquired “how he could get out if he bought it. ” Thereupon Sanford told him plainly of the lane and that he had bought it and paid for it and had a. right of way there. Sanford further testified in effect that he always claim
One Green testified he was a tenant on Sanford’s land and hauled a great deal of cord wood over the road to Jackson, and that Mr. Sanford had him work the road and keep it in repair for the eight or nine years of his tenancy. Bolinger, Sanford’s succeeding tenant, testified the same way.
Mrs. Baldwin testified she did not “sell” the strip to Sanford and gives her reason for not selling it in these words: “No, I did not sell it, because at the time I did not own it.” She admits, however, that Sanford wanted a roadway, that he offered to open up the road at his own expense and build the fence and says, (quoting), “I consented to allow the road to be opened under those conditions, that he bear all the expense of making a good fence so as to fence the farm on that side.” Being inquired of whether there was any “consideration,” she answered: “Well, there was no money paid in the matter . . . nothing.more than the building of the fence and opening of the road.” She says there was nothing said about the time the road was to continue.
The land having been devised to her by her father’s will, probated in 1895, she sold it to one Bur-ford by a deed of April 18, 1896, by a description including the lane. Burford held the land for three months and sold it to one Clippard by a similar deed. Clippard owned the land about a year and transferred it back to Burford. Burford then held it about two years and conveyed to the defendant Kern.
Burford was not put on the stand, but Clippard was by defendant. He testified that the corners of tract A were pointed out to him before he bought; that he saw the lane in use; that it was a fenced lane then open and being traveled by Sanford and his tenants; that the corners of tract A included the Jackson- and-Pocahontas public road, as well as the lane, and
The defendant Kern testified in his own behalf to the effect that he bought the land from Burford in 1899 and moved on it; that Burford pointed out the corners to him; that these corners included the lane and that he understood he was buying the lane. He admits, however, that Burford told him “Mr. Sanford used that lane.” He testified that about three years before the trial (Sanford then having used the lane for several years during Kern’s ownership) Sanford wanted to buy a road on his, Kern’s, south line, and in that connection, he, Sanford, (quoting), “told me I could close up that lane over there, it belonged to me anyhow.” As we gather, this last conversation was after the road had been obstructed and litigation was brewing or had commenced. On cross-examination he admitted that Sanford’s proposition relating to closing up the lane was conditioned on Kern’s selling him a shorter and more convenient road on the south side of tract A. He further admitted that when he bought from Burford, Burford. told him that Sanford had “fixed a fence through there and is using the road;” further that Sanford had tried to sell to him before he bought from Burford and had told him in response to his question, how he would get out of there, that he, Sanford, “claimed the road,” and that the lane so claimed by Sanford was open until he, Kern, and Flynn closed it. He also admitted that while his understanding was that he got the lane because his deed included it in the description of the land, yet that the same description included the Jackson-and-Pocahontas public road. Further along he admitted that when Sanford talked about buying a road on the south, he, Sanford, told him that if he “shut up the lane, he
Being on the stand in rebuttal and under cross-examination by defendant’s attorney, Mr. Sanford reiterated that he had all along asserted his right to the road, and had claimed to own it as against English, Mrs. Baldwin, Burford, Clippard and Kern.
Plaintiff asked and was refused instructions based on his theory of the law. Defendant asked none. Considering the instructions immaterial to a decision here, they are omitted.
Any other necessary facts will appear in the opinion.
(a) The law of easements is applied to work out justice in cases differing so widely in essential elements that it may be well at the outset to get at the concrete case here by a process of exclusion. For instance as shown by the record, this is not a case where an easement, resting in a mere permissive license without any consideration passing and having for its basis a, mere act of neighborly good will, is sought to be enforced. Nor is it a case where an easement is not claimed as of right and where the user was not of right. Such cases, therefore, as Pitzman v. Boyce, 111 Mo. 387; Field v. Mark, 125 Mo. 502 and Anthony v. Building Co., 188 Mo. 704, are not in point.
Plaintiff’s case at bottom rests on prescription, that is, on adverse user as of right, openly and uninterruptedly, for more than ten years. The blunt question, then, is: Do the record facts make such a case? We think so.
(b) ' In the first place Sanford’s claim to an easement originated in contract. He was not an interloper, squatter or mere trespasser. This is important
In the second place, the contract was executed, that is, performed and the contract consideration passed — the lane was opened, the fence built and accepted.
In the third place, the consideration was adequate in law, viz., a fence built by plaintiff for the benefit of Mrs. Baldwin and a detriment suffered by Sanford by furnishing the material and outlay in building that fence in return for a benefit conferred on him, to-wit, a private way from his timber land to the Jackson-and-Pocahontas road. For aught appearing here, the consideration paid was equal or more than equal to the value of the strip of land, as prices- ranged in that region in 1889.
It is argued for respondent there was no benefit to Mrs. Baldwin, that the whole affair from end to end was simply the gracious bounty of a neighbor- — a permissive license revocable at will. But the record does not permit us to take that view of it. Her rents and profits were in danger from the Flynn stock. The rental value of her holding evidently was impaired by a bad partition fence. Now, breaehy stock and a low or broken line fence are the devil’s own invention for discords and squabbles between coterminous proprietors — a fecund womb of a miserable brood of infelicities, vis., bad blood, bickering, bloodshed, fuss, litigation. In this case some of those things were present. Accordingly, for the good of her pocket and peace of mind, she gave the roadway in return for a fence, presumably horse-high, bull-strong and hog-tight, as the saying runs.
(c) Was Sanford’s use under an adverse claim of right? We think so. The reason of the thing is that a claim of right, in essence, rests in intent. As there is no window through which we may look into the soul of a man and use our eyesight in spying out his intent, the proof of intent, ex necessitate, rests in acts and words. There may be eases in which acts speak louder than words — where the thing done drowns out the thing said. But in this case the acts of Sanford unmistakably point to a claim of right in the way. So, the things said by him point in the same direction. He claimed the road as of right whenever a question was raised relating to his right during the time he was using it. Not only so, but his claim was recognized by the owners of tract A. We find no difficulty with the case on that score and unless something else is in the way it must be said that he asserted his adverse
That a prescriptive right is, by a fiction of the law, deemed to rest in a grant, or lost deed, as the old learning teaches, is of small significance in modern jurisprudence; for it is settled law that the right to a way by prescription may be established in the same way as the title to land, to-wit, by adverse possessions, under a claim of right uninterrupted for ten years.
Says Goode, J., in a well-decided case (Power v. Dean, 112 Mo. App. l. c. 297): “As she executed no deed, the argument is that an easement, or right to use the strip as a private way, was never granted, because such a grant must be by deed. This proposition is sound too. But an easement in the nature of a private way may be acquired by prescription or ten years’ adverse use, which is equivalent to a grant. In most cases the law allows the prescriptive right on the fiction of a prior grant of which the evidence is lost. In this case a fictitious grant need not be presumed, as there is proof of a futile attempt at an actual grant. Old theories about prescriptions and presumed grants, though still alluded to in opinions for the sake of seeming consistency, don’t have much force in modern law. The question of a prescriptive right depends on adverse use for the limitation period. [House v. Montgomery, 19 Mo. App. 170, 179; Pitzman v. Boyce, supra.] A right to the private way acquired by adverse use is a vested right and not a license. [Autenrieth v. Railroad, 36 Mo. App. 254, 260.]”
The learned judge’s formulation of the law is acceptable to us and is in accord with modern doctrine.
(d) There is a further doctrine comporting with reason and justice and recognized as clear equity, viz. t that a license to use a way or an easement though without consideration at its inception, may not be re
(e) In arriving at the conclusions announced, we are not unmindful that Mrs. Baldwin did not have the legal title to the land at the time she contracted with Sanford. She was in possession, clothed with the powers of an apparent owner and exercised those powers by leasing the land to tenants and enjoying the usufruct. We think she was allowed to deal with it by her father. He seems to have had knowledge she was dealing with it by contracting in relation to it and this with his acquiescence and consent. The evidence is clear that Sanford thought he was dealing with the owner when he contracted with her. Burford, C'lippard and Kern are subvendees holding under her. They bought the land with notice of Sanford’s claim. We deem it sound doctrine that they were put upon inquiry when they saw an open fenced lane in actual use by Sanford and his tenants and are charged with the facts inquiry would reveal. But, and this is. closer to the point, Kern had actual notice of Sanford’s claim. Burford told him of it and Sanford told him of it before he bought. Under such circumstances the running of the Statute of Limitations flowed on in an even, uninterrupted current. Under the facts of this record it would run against English, had he lived and sued
We hold the ten years ripened Sanford’s right to an easement and that it became vested in him.
The premises considered, the judgment is reversed and the cause is remanded with directions to enter one establishing plaintiff’s easement in the strip of land described in the petition and decreeing that defendant remove his obstructions out of the way. The case made is not directed to the proof of any amount of damages. The judgment, therefore,' should be entered for nominal damages of one cent and costs.