Swaggerty v. McKinzey

876 S.W.2d 795, 1994 Mo. App. LEXIS 703, 1994 WL 151664
CourtMissouri Court of Appeals
DecidedApril 27, 1994
DocketNos. 18631, 18643
StatusPublished

This text of 876 S.W.2d 795 (Swaggerty v. McKinzey) 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
Swaggerty v. McKinzey, 876 S.W.2d 795, 1994 Mo. App. LEXIS 703, 1994 WL 151664 (Mo. Ct. App. 1994).

Opinions

GARRISON, Judge.

Plaintiffs sought a declaratory judgment establishing a prescriptive easement for a roadway across Defendants’ property and also sought to enjoin Defendants from maintaining an existing cattle guard and placing other cattle guards, gates or other obstructions across the roadway.

Trial was to the court without a jury. From the evidence, it appears that Plaintiffs’ property consists of approximately 73 acres and adjoins Defendants’ property on the east. Defendants’ property consists of approximately 91 acres and is bounded on the west by a county road. The road in question extends along the north side of Defendants’ property generally from the county road on the west to Plaintiffs’ property on the east. It was referred to in the testimony as a “lane,” “single lane road,” “just two tracks,” and a “two-track lane.” The photographic evidence supports these descriptions.

At trial Defendants did not contest Plaintiffs’ right to use the road and that is not an issue here. The evidence was undisputed that the road had been used for ingress to and egress from Plaintiffs’ property longer than the period necessary to acquire a prescriptive easement, and that during that time there had never been a gate or cattle guard on the lane except a gate maintained by Plaintiffs and their predecessors at the east end where it entered Plaintiffs’ property.

Several months prior to trial, Defendants placed a cattle guard 90 feet east of the point where the lane entered the county road. Defendant R.S. McKinzey testified that he purchased the property to pasture cattle and built the cattle guard to accommodate that use.1

The trial court determined that Plaintiffs were entitled to an easement by prescription for ingress, egress, use and maintenance over a 24-foot-wide strip of land described as 12 feet on each side of the center of the traveled portion of the road. The court also enjoined Defendants from “erecting or maintaining any fences, barriers, gates, panels, cattle crossings or other obstructions across the roadway, except the one cattle guard with panels presently installed,” and ordered that [797]*797Defendants were responsible for maintaining, repairing and replacing the existing cattle guard so as not to interfere with Plaintiffs’ use of the roadway.

Both sides have appealed. Defendants, in Case No. 18631, contend that the trial court erred in enjoining them from constructing and maintaining an additional cattle guard across the roadway and in setting the width of the roadway easement at 24 feet. In Case No. 18643, Plaintiffs contend that the trial court erred in permitting Defendants to maintain the existing cattle guard. These appeals have been consolidated.

Our review of this court-tried case is pursuant to Rule 73.01(c). Accordingly, we are to affirm the judgment unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Webb v. Finley, 806 S.W.2d 501, 502 (Mo.App.1991).

ISSUES RELATING TO THE CATTLE GUARDS

Plaintiffs contend that since no cattle guards existed across the roadway during the prescriptive period, none should be permitted now. They rely on cases such as Riggs v. City of Springfield, 344 Mo. 420, 126 S.W.2d 1144, 1149 (banc 1939), for the proposition that the character and extent of a prescriptive easement is fixed and determined by the use under which it is gained. Extending this proposition, Plaintiffs cite several Missouri cases in which the courts indicated that a servient owner could not erect “gates or bars” across a road where there had been none while the prescriptive rights were ripening. See Huter v. Birk, 510 S.W.2d 177, 183 (Mo.1974); Carpenter-Union Hills Cemetery Assn. v. Camp Zoe, Inc., 547 S.W.2d 196, 204 (Mo.App.1977); McDougall v. Castelli, 501 S.W.2d 855, 859 (Mo.App.1973). Conversely, Holian v. Guenther, 471 S.W.2d 457, 459 (Mo.1971), held that the dominant owner was not entitled to an unrestricted roadway where gates were present during the prescriptive period.

In McDougall and Carpenter-Union Hills Cemetery, the courts said the roadway had always been open and “unobstructed.” “Obstruct” is defined by Webster’s Third New International Dictionary (1976) as “to block up: stop up or close up: place an obstacle in or fill with obstacles or impediments to passing (traffic): to be or come in the way of: ... impede, retard.” The concept of “obstruction” applies more clearly to “gates or bars” than to a cattle guard which, if properly maintained, does not prevent continuous movement of a vehicle. None of the Missouri cases cited by Plaintiffs discussed the relative effect of a cattle guard, as opposed to a gate or bar, on the use of the lane.

The trial court in the instant case held that the existing cattle guard, if properly maintained and repaired, does not materially impair or unreasonably interfere with the use of the roadway by Plaintiffs. In holding that Defendants are entitled to maintain the existing cattle guard, it referred to Massee v. Schiller, 243 Ark. 572, 420 S.W.2d 839 (1967). In Massee, plaintiffs owned a 40-acre tract immediately south of defendants’ property. An easement for a roadway had previously been determined to exist across the south 20 feet of defendants’ property. The issue was whether defendants could install and maintain cattle guards at the west and east ends of the roadway easement. In permitting defendants to do so, the Supreme Court of Arkansas held that the cattle guards did not unreasonably interfere with the rights of the dominant owner to use the roadway easement.

The court in Massee and Defendants in the instant case refer to Section 481 of Restatement of the Law, Property — Servitudes. It states:

The possessor of land subject to an easement created by prescription is privileged, as against the owner of the easement, to make such uses of the servient tenement as are not incompatible with the use authorized by the easement.

The Comment to that section further states that “the possessor of the servient tenement is privileged to make all uses of his land which do not interfere with the use authorized by the easement” and that neither the [798]*798possessor of the servient tenement nor the owner of the property “shall unreasonably interfere with the use of the land by the other.” In following that concept, the Mas-see court said:

Where the owner of land has a right to use it, subject to the prescriptive right of another to travel a well defined designated route across the land, some degree of inconvenience is to be expected and tolerated in the exercise of these overlapping rights, and the conflicts that arise in the exercise of such rights, are measured by reasonableness of interference of one with the other.

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Related

Massee v. Schiller
420 S.W.2d 839 (Supreme Court of Arkansas, 1967)
Lacy v. Schmitz
639 S.W.2d 96 (Missouri Court of Appeals, 1982)
Webb v. Finley
806 S.W.2d 501 (Missouri Court of Appeals, 1991)
Holian v. Guenther
471 S.W.2d 457 (Supreme Court of Missouri, 1971)
Huter v. Birk
510 S.W.2d 177 (Supreme Court of Missouri, 1974)
Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
McDougall v. Castelli
501 S.W.2d 855 (Missouri Court of Appeals, 1973)
Stickle v. Link
511 S.W.2d 848 (Supreme Court of Missouri, 1974)
Curran v. Bowen
753 S.W.2d 940 (Missouri Court of Appeals, 1988)
Carpenter-Union Hills Cemetery Ass'n v. Camp Zoe, Inc.
547 S.W.2d 196 (Missouri Court of Appeals, 1977)
Tadlock v. Otterbine
767 S.W.2d 366 (Missouri Court of Appeals, 1989)
Riggs v. City of Springfield
126 S.W.2d 1144 (Supreme Court of Missouri, 1939)

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Bluebook (online)
876 S.W.2d 795, 1994 Mo. App. LEXIS 703, 1994 WL 151664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swaggerty-v-mckinzey-moctapp-1994.