Sanford v. Wilson

764 S.W.2d 715, 1989 Mo. App. LEXIS 144, 1989 WL 8214
CourtMissouri Court of Appeals
DecidedFebruary 6, 1989
DocketNo. 15576
StatusPublished
Cited by2 cases

This text of 764 S.W.2d 715 (Sanford v. Wilson) 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
Sanford v. Wilson, 764 S.W.2d 715, 1989 Mo. App. LEXIS 144, 1989 WL 8214 (Mo. Ct. App. 1989).

Opinion

HOLSTEIN, Chief Judge.

Defendant Gertrude M. Wilson appeals from an adverse judgment in a case in which plaintiffs Robert L. Sanford and Elda G. Sanford were granted a permanent injunction enjoining defendant from fencing or barricading a portion of a roadway and further ordering that defendant remove an existing fence from the roadway. Two points are raised on appeal.

The first is that the trial court erroneously admitted a survey in evidence which was not shown to have commenced at a government comer, pursuant to cases construing § 60.150.1 The second point is that the “trial court erred in ruling in favor of plaintiffs ... in that in so ruling the trial court relied upon a distance call in a legal description instead of an artificial monument ... because artificial monuments control over courses and distances....” As in other court-tried cases, our review is limited by the standards set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We give deference to the trial court’s superior opportunity to judge the credibility of the witnesses. Rule 73.01(c)(2). When the trial court has received conflicting evidence, we review the facts in a light most favorable to the court’s order. In Interest of M.E.W., 729 S.W.2d 194, 196 (Mo. banc 1987). Defendant’s brief and argument would have us ignore these fundamental principles.

The roadway in question has been designated by the county as Lake Road 7-13. The first reference to the road was found in a conveyance of right-of-way from Union Electric to Camden County in 1932. The roadway was 40 feet in width and crossed portions of Lots 4 and 5 of the Northwest Quarter of Section 3, Township 39, Range [717]*71718 West, terminating at the Lake of the Ozarks.2 From the point where the roadway enters Lot 5 on the west, it follows a southeasterly course to the westernmost point of the disputed portion of roadway. From there, the road runs generally northeasterly 379 feet along the Wilson property which lies southeast of and adjoins the roadway. The crux of the dispute between the parties is the location of the boundary between the roadway and the Wilson property.

The evidence in this case indicates that Mrs. Wilson bought her property in 1968. Sometime thereafter, she had the property surveyed and concluded that the northern boundary of her property extended several feet beyond a small embankment running parallel to the road. She visited her property primarily on weekends. During her first visit in 1984, she noticed that someone had “graded a swath about six feet wide off [her] property.” That conduct prompted her to construct a chain-link fence.

Defendant’s evidence indicated the road had never been wide enough for two cars to pass because of large cedar trees located in close proximity to the road, that Mrs. Wilson had mowed grass in the area that is now enclosed by her fence, and the area under fence had not been used or maintained by the county.

According to a former county commissioner, Vaughn Morgan, he and a county employee removed some rocks that had been strung out along the roadway where Mrs. Wilson later constructed her fence, and the road graders went in and graded the roadway to the width the road had been since Morgan became familiar with the road in 1979.

The plaintiffs and other witnesses called on their behalf testified that since the 1950's, the disputed portion of roadway followed the same course, was graded by the county, and was wide enough for two cars to pass. There was substantial evidence confirming that the chain-link fence constructed by Mrs. Wilson in 1984 is located and encroaches upon an area running approximately 379 feet in length and 8 to 9 feet in width which was previously used by the public and maintained by the county as a roadway.

Section 228.190 provides one method by which roads may be established. That section provides in pertinent part:

[A]ll roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads....

This court recently held that the width of roads so established extends beyond the beaten path to those areas adjacent to the traveled portion upon which public labor or funds have been expended and which have been necessarily and actually used to support and maintain the road. Patterson v. Null, 751 S.W.2d 381, 387 (Mo.App.1988). Applying those principles to this case, and assuming the trial judge believed the plaintiffs’ evidence, the trial court could find that the fence constructed by Mrs. Wilson encroached upon an established public roadway.

The defendant’s argument assumes that if a survey, designated plaintiffs’ Exhibit 6, was inadmissible, or if the description offered by plaintiffs was flawed, the trial court could not enjoin Mrs. Wilson from obstructing the roadway with the chain-link fence. As demonstrated by the evidence noted above, neither the survey nor the legal description were necessary to support a finding that Mrs. Wilson’s fence encroached upon an established public roadway. Thus, the granting of in-junctive relief may still be appropriate. However, for reasons discussed hereafter, the judgment lacks finality, without which we have no jurisdiction over this appeal. We examine our jurisdiction on appeal sua sponte. Maurer v. Clark, 727 S.W.2d 210, 210 (Mo.App.1987); Citizens Elec. Corp. v. Campbell, 696 S.W.2d 844, 845 (Mo.App.1985). An understanding of our ruling requires a discussion of Exhibit 6 and the [718]*718legal description used by the trial court in granting the injunction.

Exhibit 6 purports to be a land survey of Lots 4 and 5 prepared by Greg Hasty, a registered land surveyor, in 1985. According to Hasty, he located a comer for the beginning of his survey based upon a survey done by a former county surveyor, Ralph Vincent. Vincent’s survey was performed in December, 1950. According to Vincent’s survey, a “set stone” was located at the northwest corner of the east half of Lot 4. However, Vincent's survey was not tied to any established or reestablished government comer. Hasty claims to have located a sandstone with an “X” on it at the same location noted in Vincent’s survey. Hasty concluded that this sandstone was a government comer. From the sandstone, he measured north 22 feet, then followed other courses and distances called for “in the deeds of record” to the point where the roadway adjoins the defendant’s property. Hasty’s survey notes the relative location of defendant’s fence to the roadway. According to the survey, the chain-link fence encloses a portion of the roadway. Hasty drafted a description of a strip of ground 8 feet wide and approximately 379 feet long lying within the newly constructed chain-link fence based upon his survey. The description drafted by Hasty, and thereafter adopted by the court, begins as follows:

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Bluebook (online)
764 S.W.2d 715, 1989 Mo. App. LEXIS 144, 1989 WL 8214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanford-v-wilson-moctapp-1989.