Dodge v. Wiles

766 S.W.2d 695, 1989 Mo. App. LEXIS 93, 1989 WL 5007
CourtMissouri Court of Appeals
DecidedJanuary 26, 1989
DocketNo. 15455
StatusPublished
Cited by1 cases

This text of 766 S.W.2d 695 (Dodge v. Wiles) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dodge v. Wiles, 766 S.W.2d 695, 1989 Mo. App. LEXIS 93, 1989 WL 5007 (Mo. Ct. App. 1989).

Opinion

MAUS, Judge.

In this action the plaintiffs, Frank J. Dodge and Myrna Dodge, his wife, and William C. Parmenter and Cama S. Par-menter, his wife, sought an injunction restraining the defendants, Janet Wiles and Jim Wiles, her husband, from obstructing a public road. The defendants presented two defenses. First, the portion of the public road in question had been abandoned. Second, the plaintiffs were estopped from claiming that portion of the route in question was a public road. The defendants appeal. The following is a synopsis of the background of the case.

The defendants own a farm of approximately 193 acres in Wright County. Prior owners of that farm were the Walkers and the Morses. The defendants bought it from the Morses in 1985. Wright County Road 446 cuts across the section of land north of the Wiles’ farm.

Plaintiffs’ Dodge owned a farm that adjoined the Wiles farm on the south. At one time, through the purchase of tracts that had been separately owned, the Dodge farm encompassed 1,321 acres. It included the Parmenter tract, the Vining tract and the Brewster tract. The Dodge farm is bounded on the west by a county road. The Dodge house is adjacent to that county road.

The road in question is referred to as the Old Vining Road, and in their brief the defendants establish that it is known as County Road 445. It is apparent that at one time the road connected Farm Road 446 and the county road adjacent to the Dodge house. County Road 445 meandered in a general southwest direction from Farm Road 446 to the county road. In doing so, it provided access to the Wiles house and tract, the Laub house and tract, the Parmenter house and tract, and the Vining house and tract. The Brewster house and tract was reached by a branch of that road. The land adjacent to the road is used for cattle and timber. It may be inferred that so far as the road was concerned it was “open range.”

The road was maintained by the road district. It was used by the public. That use included a school bus route. The defendants concede that County Road 445 was a public road. By their brief they concede that it is still a public road to a gate south of the driveway of the Wiles house, referred to by the parties as Gate A.

The Dodges first purchased the Vining tract. With the exception of the Parmen-ter two-acre tract, they acquired the balance of their farm in 1959. They acquired the Parmenter two-acre tract in 1966. The Vining house was occupied by tenants until at least 1965. The Parmenter two-acre tract was occupied by the Parmenter family, including plaintiff William C. Parmenter from 1953 to 1962. It was occupied by an unidentified owner until 1966. When the Dodges acquired that tract in 1966, they had the house torn down.

The Walkers established the Wiles farm by the purchase of four separate tracts. [697]*697The Walkers purchased the Laub tract, then owned by the Bellevilles, in 1971. In 1971, they built a new house on the disputed road a short distance from Wright County 445. They used the house on the Laub tract as a guest house. The Walkers sold the farm to the Morses in 1979. The Morses sold their farm to the Wiles in 1985.

In October, 1985, the Wiles entered into a contract to purchase approximately 200 acres from the Dodges. The 200 acres included the Parmenter two-acre tract. The purchase by the Wiles was not consummated. In March, 1986, plaintiffs Par-menter purchased from Dodge a tract of an undisclosed number of acres that includes the Parmenter two-acre tract.

For many years a wire gate (referred to as Gate B) was maintained across the road in the fence that divided the Dodge and Wiles farms. About 1970 Russell Belleville built a wire gate (referred to as Gate L) across the road south and west of their house. This gate is on the road approximately 765 feet north of Gate B. Then in 1971 or 1972, the Walkers built a gate (referred to as Gate A) across the road approximately 1720 feet north of Gate L. Gate A is just south of the driveway from the road to the Walker (now Wiles) house. From Gate A it is approximately 1,800 feet on the road northeasterly to the junction of the road and Wright County Road 446.

In April 1986, William Parmenter was driving his pickup truck to his property to prepare for using that property for cattle. Near Gate L (near the Laub house) he encountered Wiles’ hired hand George Holmes. Parmenter told Holmes that Gate A should be left open as it hindered him in the use of his newly purchased property. He added that the road grader would soon be coming down the road. Holmes objected because they had livestock in the area. Thereafter, defendants Wiles locked Gate A. This action was then filed.

The defendants state six points on appeal. Four of those points are based upon the proposition that the Old Vining Road had been abandoned as a public road. In the alternative, they argue it was abandoned as a public road south of Gate A, and in all events south of Gate L.

As stated, the defendants conceded that at one time the road was a public road. In view of that admission,

the right to use it as a public highway became vested in, and inured to the benefit of, the public ...; and, absent vacation in a statutory proceeding under Chapter 228, such right of use thereafter could not have been divested except upon abandonment of the disputed road for ‘nonuser by the public’ for the period specified by statute, to-wit, now ‘five years continuously’....

State ex rel. Carter County v. Lewis, 294 S.W.2d 954, 958 (Mo.App.1956) (citations omitted). The defendants had the burden to establish such abandonment. Id. The proof needed to meet that burden has been succinctly summarized.

In order for a public road to be vacated by abandonment, the nonuse not only must be shown for the statutory period but such nonuse must be a clear and entire abandonment by the public. That it is used infrequently, intermittently or rarely does not meet the standard. If used at all, the road will not be deemed abandoned.... The fact that only part of the road is used, ... or that it ends in a cul-de-sac or dead end, ... does not constitute sufficient evidence of nonuse and abandonment. Further, once a road is established as a public road, its use inures to and becomes affected by a public interest, and the right to use it cannot be abandoned unless all the public concurs.

Hedges v. County Court for Ray County, 581 S.W.2d 73, 78 (Mo.App.1979) (citations omitted). Also see State ex rel. Perkins v. Taylor, 666 S.W.2d 853 (Mo.App.1984); Seaton v. Weir, 633 S.W.2d 212 (Mo.App.1982); Connell v. Baker, 458 S.W.2d 573 (Mo.App.1970). It is established that the presence of a gate, shown by the evidence to be locked only occasionally, or a cattle guard across the road does not establish such an abandonment. State ex rel. Perkins v. Taylor, supra; Osburn v. Supreme Express & Transfer Co., 590 S.W.2d 360 (Mo.App.1979).

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Bluebook (online)
766 S.W.2d 695, 1989 Mo. App. LEXIS 93, 1989 WL 5007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodge-v-wiles-moctapp-1989.