O'Brien v. Richter

455 S.W.2d 473, 1970 Mo. LEXIS 963
CourtSupreme Court of Missouri
DecidedJune 8, 1970
DocketNo. 54666
StatusPublished
Cited by6 cases

This text of 455 S.W.2d 473 (O'Brien v. Richter) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Brien v. Richter, 455 S.W.2d 473, 1970 Mo. LEXIS 963 (Mo. 1970).

Opinion

THEODORE McMILLIAN, Special Judge.

This is a suit to determine the width of an easement or roadway across the land of the plaintiffs. The case was submitted upon a stipulation of facts; and, thereafter, the circuit court of St. Louis County, Missouri, granted defendants a 50-foot-wide roadway across the land of the plaintiffs as an outlet to a public highway. Plaintiffs appealed.

There is no dispute about the existence of the easement. In November 1867, the predecessors of the plaintiffs granted to the predecessors of the defendants an easement from their land across the land of the plaintiffs “to any road or highway that we, our heirs, or assigns may use as an outlet to any highway.” From the date of the deed until this action was commenced, defendants and their predecessors have used a 20-foot roadway over the land of the plaintiffs to the public road.

Plaintiffs relocated the roadway and filed this action to obtain a declaration that they had a right to do so, and to enjoin the defendants from the use of the road as originally located.

Defendants filed an amended counterclaim, in two counts (1) asserting the right to the continued use of the old road, and damages for the interference, and (2) alternatively, if denied use of the old road, a decree to establish the width and location of a new means of access.

The court ruled that the old roadway had been abandoned by the plaintiffs; that the legal right of defendants to use it had ceased; and that defendants were entitled to a roadway 50 feet wide from their land across the land of the plaintiffs.

On this appeal plaintiffs contend that the court erred in overruling their motion to dismiss the amended counterclaim of the defendants, and in ruling that respondents were entitled to a roadway to Nara Drive because (a) the only question before the court was whether or not the action of the plaintiffs in relocating was wanton or oppressive ; (b) that the counterclaim neither alleged wantonness and oppressiveness; (c) nor was there any evidence to show such.

The second claim of error pertained to the admissibility of certain stipulated evidence. And, finally, that the court erred in granting defendants a specific roadway of a specific width because such a ruling would effectively deny plaintiffs the right to relocate in the future, and the width of the right of way had been established as 20 feet.

The lands of both parties lie in an unincorporated portion of St. Louis County, Missouri. Because of the nature of the controversy, it would unduly extend the length of this opinion to set out in full the legal description of the properties in question. For our purposes, defendants’ property consists of 5.136 acres which is surrounded by three lots (two lots to the south and one to the west) belonging to plaintiffs. At the time the trial court considered this cause, and at the present time, the relocated road on plaintiffs’ land is designated as Tina and Nara Drives, both of which are existing concrete rights of way dedicated to public use. The right of way of Nara Drive ends three feet from the south line of defendants’ property, at the same point of intersection as did the old roadway.

Further, the evidence was that plaintiffs have provided defendants a right of way 20 feet wide from defendants’ property line to Nara Drive. This right of way coupled with Nara Drive provides defendants with a paved route of access to the public highway. Nara Drive, a 50-foot-wide road, intersects plaintiffs’ property; the major plot is, of course, to the south of Nara Drive, while to the north of Nara Drive is [476]*476the three-foot strip which adjoins defendants’ south property line. The roadway from Nara Drive, northwardly, to plaintiffs’ three-foot strip is 50 feet, and plaintiffs have paved an actual surface of Nara Drive to a width of 30.05 feet. To complete the picture, if plaintiffs are correct, the roadway from defendants’ south property line would be 20 feet across the three-foot strip of the plaintiffs’ property, joining the 30-foot paved strip on Nara Drive, thus giving an hourglass effect.

All parties concede, and the language of easement grant provides, an easement to defendants’ land across plaintiffs’ land “to any road or highway that we, our heirs, or assigns may use as an outlet to any highway.” As this right was specifically reserved in the granting instrument, and the easement grant authorized it, the location may be changed from time to time in accordance with the contract. Bunch v. Wheeler, 210 Mo. 622, 109 S.W. 654 (1908); Ford v. White, 179 Or. 490, 172 P.2d 822.1

In our opinion the first contention of the plaintiffs that their motion to dismiss the amended counterclaim for the reason that wantonness and oppressiveness were neither pleaded nor proved is without merit. First, Count I, which asserted the right of defendants’ continued use of the old roadway, did allege wantonness; and, true, there was no proof of this issue. But, in any event, the issues tendered by Count I were resolved in favor of the plaintiffs and against the defendants. So the error, if any, is harmless.

Plaintiffs next complain about the acceptance into evidence of the stipulations contained in paragraphs 5 and 7. Essentially, paragraph 5 asserted (1) that both properties are located in an unincorporated area of St. Louis County, (2) both zoned single-family residential under the St.' Louis County Zoning Ordinance, and (3) are capable of being subdivided. Paragraph 7 contained §§ 1005.80 and 1005.110, Revised Ordinances of St. Louis County. Because of the close relationship between the two paragraphs with the objections leveled by plaintiffs, both will be considered together.

Plaintiffs made only a general objection as to the reception of the evidence set forth in the two paragraphs, and a general objection saves nothing unless it can fairly be said that the evidence is not competent for any purpose. State ex rel. State Highway Commission v. Rauscher Chevrolet Co., Mo.Sup., 291 S.W.2d 89.2 Here, in our opinion, the evidence complained of had a bearing on the width of the way that was reasonably necessary for the purposes for which the easement was created. This for the reason that the easement grant in the 1867 deed was silent as to width, and that both properties are located in unincorporated portions of St. Louis County. The subdivision regulations of St. Louis County provide that the minimum width for any street shall be at least 50 feet, except for where the topography or special conditions make a street of less width more suitable, and that the street and alley arrangement of subdivisions must also be such as to cause no hardship to owners of adjoining property when they plot their own land and seek to provide for convenient access to it. St. Louis County Revised Ordinances, §§ 1005.808 and 1005.100.

If respondents subdivide their 5.136 acres of ground, the reasonable requirement of the St. Louis County Planning Commission will be that they obtain access to their subdivisions over the three-foot strip in dispute and connect with Nara Drive so that there is no bottleneck going from the south line of defendants’ property, narrowing on the three-foot strip and then widening out to form an hourglass as it joins the northern protrusion of Nara Drive. It is unreasonable, illogical, and of little value to allow roadways joining one [477]

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Bluebook (online)
455 S.W.2d 473, 1970 Mo. LEXIS 963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-richter-mo-1970.