Schluemer v. Elrod

916 S.W.2d 371, 1996 Mo. App. LEXIS 87, 1996 WL 21074
CourtMissouri Court of Appeals
DecidedJanuary 18, 1996
DocketNo. 20016
StatusPublished
Cited by7 cases

This text of 916 S.W.2d 371 (Schluemer v. Elrod) 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
Schluemer v. Elrod, 916 S.W.2d 371, 1996 Mo. App. LEXIS 87, 1996 WL 21074 (Mo. Ct. App. 1996).

Opinion

CROW, Judge.

This is a dispute about a “roadway easement.” Plaintiffs, William E. Schluemer and Elizabeth L. Schluemer, own the servient estate1; Defendants, B. Russell Elrod and Frances2 Elrod, own the dominant estate.

The deed creating the easement (Exhibit B) reads, in pertinent part:

“Grantees3 Shall Pay to the record owners of the land where the easements are located the sum of One Hundred Dollars per year starting July 1, 1983, and each and every July 1 thereafter, as long as grantees shall have the use of the easements described above, to be used to help maintain the roadways located on said easements.”

The ease was tried by the court without a jury on three counts (I, IV and V) of Plaintiffs’ five-count first amended petition4 and Defendants’ counterclaim.

Count I was based on the above-quoted provision of Exhibit B and sought judgment against Defendants for $100 per year commencing with Plaintiffs’ purchase of the ser-vient estate in November, 1984.

Count IV sought an injunction barring Defendants from littering and trespassing on Plaintiffs’ land and forbidding Defendants from using the easement for any purpose except ingress and egress.

Count V sought an order compelling Defendants to release part of the easement which, according to Plaintiffs, was unnecessary for access to Defendants’ land.

In their answer to Count I, Defendants claimed they were entitled to a “set-off’5 of $4406 against Plaintiffs’ claim. In their counterclaim, Defendants prayed for judgment commanding Plaintiffs to bring the roadway into such condition that it “can be traversed ... with a [sic] ordinary automobile.”

The trial court entered judgment accompanied by extensive findings of fact and conclusions of law. The judgment: (a) awarded Plaintiffs $1,000 on Count I and denied Defendants’ prayer for a setoff; (b) granted relief on Count IV by barring Defendants from using the easement for any purpose except ingress and egress, and by ordering locks placed on two gates to control access to the easement; (c) denied Count V; (d) awarded Defendants no relief on their counterclaim.

Defendants bring this appeal. The first of their three points relied on attacks the judgment on Count I. The point reads:

[374]*374“The trial court erred in overruling the counterclaim [sic] of ... Elrods ... for a setoff against the $1000.00 owed to ... Schluemers ... because it was the Schluemers’ obligation to maintain the roadway easement in that the deed granting the Elrods the easement fixed the El-rods’ obligation for helping to maintain the easement at $100.00 per year and since the Schluemers failed to maintain the easement in a good enough condition for the Elrods to access their river lot they were entitled to expend moneys on the easement necessary to keep it in a good enough condition for the Elrods to access their river lot and set that amount off against their obligation to pay to the servient estate $100.00 per year.”

We preface our discussion of the above contention with an account of the pertinent facts. We gather them from the pleadings, evidence and briefs.7

In 1983, Defendants purchased two parcels of land in Maries County from W.H. Strat-man and Katherine Stratman: a 5.36-acre tract adjacent to Highway 42 and a .46-acre tract abutting the Gasconade River. No public road reaches the smaller tract.

The Stratmans retained ownership of a farm between Defendants’ two tracts. To enable Defendants to reach the smaller tract, the Stratmans granted Defendants the “roadway easement” mentioned in the first sentence of this opinion.8 The easement (part of which is forty feet wide and part of which is thirty feet wide) begins at Highway 42 adjacent to Defendants’ larger tract and proceeds across the Stratman farm approximately one and one-fourth miles to Defendants’ smaller tract.

Defendants reside on their larger tract. Because that tract abuts Highway 42, Defendants do not use the easement for access to the highway. When Defendants go from their larger tract to their smaller tract, they enter the easement at a point where it abuts their larger tract behind their house.

On November 5, 1984, the Stratmans conveyed their farm — the servient estate — to Plaintiffs.

Defendants presented evidence that Plaintiffs thereafter failed to maintain the road over the easement in good enough condition for Defendants to reach their smaller tract by motor vehicle. Defendants admitted they never paid Plaintiffs the $100 per year required by Exhibit B, but claimed they paid for gravel and performed labor on the road in an effort to maintain it in usable condition. According to Defendants’ evidence, those expenses and labor totaled $825.9 Defendants insisted they were entitled to a setoff against the sum claimed by Plaintiffs on Count I ($1,000 at time of trial).

The trial court made no finding regarding the expenditures allegedly made by Defendants or the value of the labor allegedly performed by them in maintaining the road. Instead, the trial court resolved Count I and Defendants’ prayer for a setoff by holding that Defendants, as owners of the dominant estate, “have an obligation to maintain the easement roadway.” Therefore, reasoned the trial court, Defendants are not entitled to a setoff against the $100 per year they must pay Plaintiffs pursuant to Exhibit B. Consistent with that analysis, the trial court, as reported earlier, entered judgment for Plaintiffs on Count I for $1,000.

Defendants begin the argument under their first point by acknowledging Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983, 987[6,7] (1933), which states that where a roadway easement is created by deed, the owner of the dominant estate has the right to maintain the roadway in a condition for pas[375]*375sage, and the owner of the servient estate is under no obligation to maintain or repair.

However, Defendants call our attention to McDonald v. Bemboom, 694 S.W.2d 782 (Mo.App.W.D.1985), where owners of the dominant estate and owners of the servient estate each used a road across an easement on a regular and continuing basis. Id. at 783. In McDonald, the appellate court held:

“A respectable body of authority in other jurisdictions holds that apportionment of the cost of repairs and maintenance of a private roadway between the owners of the dominant and servient tenements is fair and just, even though the agreement creating the easement is silent with respect thereto, where the owners of both the dominant and servient tenements regularly use the private roadway.”

Id. at 786[2] (citations omitted).

McDonald affirmed a judgment in favor of the owners of the dominant estate against the owners of the servient estate for the latters’ proportionate share of repair and maintenance costs for the roadway.

In the instant case, the trial court found Plaintiffs “generally use the road for access to their fields, pastures and to the Gasconade River.”

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Cite This Page — Counsel Stack

Bluebook (online)
916 S.W.2d 371, 1996 Mo. App. LEXIS 87, 1996 WL 21074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schluemer-v-elrod-moctapp-1996.