JOHNNY ROBERTS and DEBRA ) ROBERTS , ) ) Plaintiff s
- Respondents , ) ) vs. ) No. SD33993 ) WAYNE J. SHAW, Deceased, LINDA ) Filed: March 2 3 , 2016 LANE, and RICHARD OGDEN, ) TRUSTEE OF TOWN & COUNT RY ) BANK , ) ) Defendant s , ) ) and BETTY J. SHAW, ) ) Defendant

- Appellant. )
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY
Honorable David Gregory Warren , Senior Judge
REVERSED AND REMANDED This case involves a long country lane or roadway located in Phelps County, Missouri , which crosses at least two different tracts of land 1 and ends at two private residences or farms.
The case commenced in 2004 , when Johnny and Debra Roberts ( “ Respondents ” ), James Roberts
and Edn a Roberts (now deceased) filed their petition in the Circuit Court of Phelps County,

1 See SD33992, Roberts, et al. v. Lane , also filed this date. 1Missouri , seeking to establish an easement by prescription or, in the alternative, to establish the lane as a private road or way of necessity. The case proceeded to tria l in 2005 , with the dispute
b eing the width and possibl e usage of the lan e in dispute. In the original order after trial, the trial court made findings about the use and width of the road and as to various gates, but directed the surveyor to provide a sur vey description of the roadway. Specifically , the trial court in 2005 entered an order finding t hat Respondents were entitled to a prescriptive easeme nt across the property of both d efendants because both stipulated
and admitted that Respondents were enti tled to such an easement. The court found that this was

a one
- lane dirt road that had stayed substantially the same throughout its years of use; it was basically a beaten path. The r oad measurement varied from 8 1/2 feet wide to its widest point of
14 fe et “where they had moved over to avoid a mud hole .” The issue was the width of the
easement and whether the d efendants have the right to maintain the five gates currently set on the
road. The evidence indicated that the use under which the prescriptive r ights were acquired
involve d the continuing inconvenience and burden of the current gates. The order also stated that the road would be a minimum of ten feet wide per the survey with an additional three feet width to get out of the vehicle to open the gat e. The o rder further ordered El gin Surveying and Engineering, Inc ., “to furnish the court with a survey de scription across both Defendant[ s ’] properties, reflecting a minimum of ten feet (10’) wide road except where the road is already ten
feet (10’) or w ider. ” (Emphasis in original). The c ourt further noted that the natural barriers including a row of trees and a lagoon existing during the prescriptive period which may narrow the road were not ordered to be removed in order to enlarge the road.
The tr ial judge who entered that order left the circuit court and a subsequent judge was appointed. No further hearings wer e held from the time of the 2005 hearing; however , on May
214, 2015 , a successor trial judge entered an order granting a 25

- foot easement a nd making further
orders. Defendant Betty J. Shaw (“ Appellant ”) claims the court erred in decl aring a 25

- foot easement because there was no evidence to support a finding that the easement had been that wide during the prescriptive period and that the succ essor judge was without authority to enter a judgment based on testimony and evidence heard by his predecessor. We agree with Appellant’s second point. The successor judge, without taking further testimony or evidence, entered an
order that was contrary to the findings of the trial judge

.

“ Under Missouri law, a successor judge is without power to render a judgment based on testimony and evidence heard by his predecessor absent a stipulation by the parties. ” Central Bank of Kansas City v

. Costanzo , 873 S.W.2d 672, 674 (Mo. App . W.D. 1994); Ard v

. Shan non County Commission , 424 S.W. 3d 468, 475

- 76 (Mo.App. S.D. 2014). In this case, there is no stipulation of the parties that a judgment may be entered. Respondent s cite to Rule 79.01 2 contending that the su ccessor court had the power to enter a judgment in this case. Rule 79.01
does allow for another judge to perform the duties of a judge who leaves office; however, in this case, the successor court exceeded the powers granted under Rule 79.01 by granting j udgment, without evidence, far in excess of what the trial court had written as findings supported by the
record. Rule 79.01 allows the successor court to perform the dut ies of the trial court “ after a verdict is returned or findings of fact are filed

. ” Rule 79.01 (emphasis added). As noted abov e, the c ourt found that the road was a one

- lane dirt road that was basically a beaten path, measuring from 8 1/2 feet wide to the widest point of 14 feet. Th e successor judge m orphed that road into a
25

- foot ease ment with no testimony concern ing different usage of the road and without a

2 All rule references are to Missouri Court Rules 2015, unless othe rwise specified. 3stipulation of the parties, further hearings or further evidence. The final judgment is contrary to the findings of fact of the original trial court.
We must reverse and remand the judgment for fu r ther proceedings consistent with this opinion. In the absence of a stipulation of the parties to proceed, the c ourt must either make a judgment consistent with the findings of the original trial court that heard the evidence or hold a new hearing.
Nancy Steffen Rahmeyer, J.

- Opinion Author Gary W. Lynch, J.

- Concurs William W. Francis, Jr., J.

- Concurs

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