#### Clarence A. Majors and Ethel M. Majors, Appellants, v. Alma L. Bush.

No. 39683.

200 S. W. (2d) 892.

Division Two,

March 10, 1947.

*Conger B. Smith*for appellants.

*18
      *C. E. Lavery*for respondent.

*19WESTHUES, C.

Clarence A. Majors and his. wife, Ethel, filed this suit in Jackson County, Missouri, to enjoin’ the defendant, Alma L. Bush, from using a lane over land owned by the Majors as an outlet to a public road. The defendant filed an answer wherein she asserted she had a right to use the lane because she had an eásement therein by virtue of a contract and also because she had used the roadway openly, notoriouly and adversely for a period of twenty-four years. The trial court, after hearing evidence, entered- a decree for the defendant. ' The theory 'of the. trial court, as -stated iii the decree, was as follows:

*20“That the Defendant and those under whom she claims have .enjoyed the use of said roadway openly, notoriously and adversely for a period of some twenty-four (24) years under claim of right, and that said use has been a continuous one for said period of twenty-four (24) years, and that said easement was acquired as a matter of contract, and that said contractual agreement was fully executed by the parties, and that title to said easement is quieted in this Defendant and her successors in title.1 *’*

Plaintiffs appealed.



*21A plat was introduced in evidence which it was agreed correctly showed the true situation. We are embodying it herein as a part of this opinion. It is plaintiffs’ theory .that defendant had been notified not to use the lane; that her use of the lane had been by permission only and therefore she could have no easement therein. The location of the roadway or lane, the ownership of the various tracts of land and the location of the public roads as of the date of the trial, were as indicated on the plat. It will be noticed that two lanes are shown on the plat. Lane “ A ” is twelve feet wide and lane “ B ”, immediately to the east thereof, sixteen feet wide. Lane “A” is located on the land owned by Thornton in'section thirty-three and ££B” is on the Majors’ tract in section thirty-four. The two together make a-roadway twenty-eight feet wide running northerly eighty rods. The lanes are divided by the section line between sections thirty-three and.thirty-four. It will be noted that defendant Bush owns land in section thirty-three immediately north of the point where the lane stops. Lane ‘ ‘A ’ ’, lying in section thirty-three, is hot directly in eo'ntroversy and the owner of the forty acres up"on which lane “A” is lo- ' cated was not a party to and took no part in'this lawsuit.

Plaintiffs purchased their eighty acres of land from Ben Y. Hamilton in the year 1942. Mr. Hamilton had owned this land since T904. The defendant and her husband, now deceased, purchased their land in the year 1920. At that time, so the evidence discloses, there was a hedge on the section line dividing sections thirty-four and thirty-three. The Bushes and their predecessors in title had used lane “A” over the Thornton tract. The Hamiltons had been using lane “B” to the east of the hedge. About the year 1924 the hedge was removed and the two lanes thrown together and up to the time this lawsuit was tried there was but one roadway.

• Mr. Hamilton was called as a witness by plaintiffs. He testified that according to his best memory he had agreed with one Mr. Knorpp that the hedge be pulled and he, Hamilton, would stand half of the expense; that he desired the hedge to be removed because there was a gate that had to bé opened and closed and often people using the lane would leave it open. The evidence shows that Mr. Knorpp was a renter on the B.ush place. Mr. Hamilton further testified as follows: ' .

“Q. You just pulled the hedge and widened the road and made it all in one? A. That’s right.

£ £ Q. Who paid for the pulling uf that hedge ? A. I paid for half of it and he paid for half of it.

££Q. Mr. Bush did? A. Yes. I suppose he did; he was to pay half.” • •

A fence was constructed along the east line of lane ££B”. Hamilton testified as follows with reference thereto:

*22‘ ‘ Q. Who was it put in the fence ? A. I did, and. Mr. Riggs helped me.. We wer.e exchanging- work like.we did .on .the farm all the time.

“Q. Yo.u didn’t pay Mr. Riggs anything;for it? A. No, we .exchanged work.” , . . ......

It was also in evidence that the road was graded- after the hedge was removed. Mr. Hamilton testified as follows:. , . '

‘ ‘ Q. Who did that grading ? A. . The first grading that was done, Mr.. Knorpp did. : ■ .

“Q. Didn’t Mr. Bush and Mr. Riggs after.this hedge was pulled help to maintain that road? A. They did to a certain extent. .

- “Q. They did grade it? A. Riggs an.d me together graded:it most.” . • ■,

Mr. Riggs ref erred, to- was a. son-in-law of the Bushes, and lived on the place many years. , .

Defendant’s evidence was that the lane,- as thrown together by-the removal of .the hedge and the grading of the roadway,, had been, used by her family for twenty-four years. . Her evidence further was that about 1924 Mr. Hamilton and Mr. Bush agreed to remove the- hedge, grade the roadway -and maintain- the. same for - their mutual benefit. The evidence shows beyond doubt that the Bushes and the Hamiltons shared the labor and expense in doing .the work to establish the joint roadway. Mr. Hamilton, on rebuttal, denied he made any- agreement with Mr. Bush and insisted the agreement was made with Mr. Knorpp, the tenant. Note his evidence: . '

‘ ‘ Q. Do you say you ever entered into any such agreement as that with Mr. Bush? A. No, sir. . ,

“Q. Your testimony is as you said .before that Mr. Knorpp Came to you? A. He.wRs the.first man that came to me and mentioned the road, about pulling the hedge. , . . '

“Q. And you agreed, with him that the hedge might be -pulled and you.would stand half of that expense? • A.: Yes, sir.

“Q- Was the hedge pulled A. Yes. '

.. ‘ ‘ Q. Did you pay half of that expense ? A.: I paid half of it, yes. ’ ’ Mr. Hamilton-, however, testified that Mr. Riggs helped -maintain the roadway. :.Note his evidence: ■ ■

“A. Yes, I dragged it several times, and Mr. Riggs drug- it some, too, and I and Mr. Riggs run the grader over it about-a year1 before Ileft.”

As to permission given to .the Bushes to use the road Hamilton testified-: - .

“Q. Mr. Hamilton, after this hedge fence was pulled I will ask you to state whether or noh you gave Mr. Bush or Mrs. Bush permission to use your lane? A. I just used it; I didn’t give-them permission.. It.was down there for them to. -use it or anybody else that wanted to use the road., :. : : ' ■:

*23'“Q. Anybody' coming to the Bush'farm, you let them'-use it? A. Yes.” ' - " •

The Bushes did not claim to have the exclusive right to use the lane and Mrs: Bush, the defendant; made no such claim at the trial of this case. After plaintiffs moved to the Hamilton farm‘a number of disputes Arose-'over the lane, resulting in ill-feeling and the present lawsuit. Mr. Majors, one of plaintiffs, testified that he looked at the property before he purchased it and asked Mr. Hamilton about the lane; that Mr. Hamilton stated sixteen feet of the lane was on his farm and if he wanted to' close it he could do so. Mr. Majors made no inquiry of'the defendant, Mrs: Bush,'as to what right she claimed in the roadway. As will be noted, the plat indicates that thé defe'ndant owns'twenty acres of land immediately  north of the Major tract and that this twenty acres abuts upon Hamilton road. Plaintiffs claim that the defendant has easy access to Hamilton road over this twenty acre tract.

■Considering the above evidence, we are of the opinion that the trial cohrt entered'the'proper decr'ée. "Appellants’ brief contains twelve points 'whérein it is contended that the judgment of the trial court cannot be sustained. There being duplications we will dispose of them generally and not separately. It is asserted that a parol' agreement is insufficient to support an easement; that the only right the Bushes had was mere permission or a license and that such can never ripen into an-easement. The applicable rule to the facts at hand is well stated in-28 C. J. S.', page 678’, as-follows:'.

-. .’ but an oral grant will be upheld where it is accompaiiiéd ’ by consideration,'action in reliance on the grant, and by. the grantees being permitted the granted use.’’’ ■ ' . '.

All of these elements are present in the case before us and in addition- thereto there was a'use of the road for a period of twenty-four" years. The eases cited by appellants,' as for example, Kuhlman v. Stewart, 221 S. W. 31, l. c. 33, 282 Mo. 108, are not in point, because that case and other similar cases are based'on'the theory that the. oral grant or agreement was a mere permission or license and there-' fore-not adverse and not under'a claim of right, and that such a permission or'license could not ripen into'an-easeibent by.limitations. Judge' Graves was the author of the opinion in the Kuhlman v. Stewart case. Judge Lamm wrote the opinion in Sanford v. Kern, 223 Mo. 616, 122 S. W. 1051. Judge Graves'and the Other members of division ohe concurred in the opinion. The facts in that case are such that the law expressed in the opinion are controlling here. The right to -use the lane 'over which the'lawsúit arose originated in a. parol contract. Judge Lamm, speaking for the court; said:

“Plaintiff’s case- at bottom rests. on. prescription, that'is, on adverse user as of right, openly and uninterruptedly, Tor more than ten *24years. Tlie.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 as furnishing a foundation for a claim of right, because the Statute of Limitations, borrowed to effectuate prescriptive rights, can only be invoked by a person claiming by right and not by wrong. No flux of time will ripen a bad title into a good one unless, possession is blessed by a claim of right. • ■

“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.”

That language, with all its implications, is fully applicable to the facts proven in the case now before us. The court in the Sanford case also expressly approved an opinion of the St. Louis Court of Appeals in Power v. Dean, 112 Mo. App. 288, 86 S. W. 1100. In this opinion, written by Judge Goode, an -easement was sustained by prescription which had its inception in an oral contract. This on the. theory that there was a-consideration, that the oral contract was fully executed and the lane used for more than ten years. It, was. there contended that the right given to use the lane was Intended to be a mere license and therefore revocable at will. A more recent case on this subject was decided by division two of this court. See Jacobs v. Brewster, 354 Mo. 729, 190 S. W. (2d), 894. A thorough review of the question of the establishment of' an easement by prescription will be found in that opinion. The law there announced, if applied to the present situation, would result-in the affirmance of the judgment of the trial court. In the case before us Hamilton orally agreed with the Bushes to convert the two lanes into one roadway. It was agreed that the expense and labor of the conversion and the maintenance of the roadway should be shared equally. Hamilton testified that the change would be beneficial to him. The conclusion is inescapable that the roadway as established was to be of a permanent character. The Bushes used the roadway not by permission or by license, but as a matter of right, that means adversely. They continued to use the roadway for twenty-four- years and therefore the use thereof ripened into an easement. It is true, that the Bushes did not claim exclusive right to the roadway and that is not necessary to establish such an easement by prescription. What we have said is sufficient to demonstrate that the trial court was correct in ruling that the Bushes had acquired an easement ,by adverse possession.

The judgment of the trial court is therefore affirmed.

*Bohling*and *Barrett, CC.,*concur.

PER CURIAM: The foregoing opinion by Westhues, C., is adopted as the opinion of the court.

All the judges concur.