Wells v. Carpenter

916 S.W.2d 405, 1996 Mo. App. LEXIS 248, 1996 WL 63968
CourtMissouri Court of Appeals
DecidedFebruary 14, 1996
DocketNo. 20269
StatusPublished
Cited by7 cases

This text of 916 S.W.2d 405 (Wells v. Carpenter) 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
Wells v. Carpenter, 916 S.W.2d 405, 1996 Mo. App. LEXIS 248, 1996 WL 63968 (Mo. Ct. App. 1996).

Opinion

SHRUM, Chief Judge.

This ease concerns a prescriptive easement claim. The trial court determined that the plaintiffs, Clyde R. Wells and Ruth M. Wells (Appellants), did not have an easement acquired by prescription entitling them to walk across land owned by the defendants, Howard Carpenter and Beverly Carpenter (Respondents). This appeal followed. We affirm.

Respondents own a parcel of land between two parcels owned by Appellants. At least as far back as the 1950s, all three parcels of land were owned by Appellants’ family. However, the middle parcel was sold off and was ultimately purchased by Respondents in 1956. To get from the parcel on which their residence is located to the other parcel, which they rent out, Appellants have walked across Respondents’ back yard for more than 30 years.

Appellants, who built their home “at the outbreak of Wor[l]d War II,” neither asked nor were given permission to cross the middle parcel by any of Respondents’ predecessors in title. Appellants never asked Respondents’ permission to cross their land, nor have Respondents ever explicitly given it.

In 1993, Respondents erected several “No Trespassing” signs on their property, ostensibly to protect themselves from premises liability. A confrontation over the signs ensued, and Appellants subsequently filed suit asking the court to declare the existence of an easement by prescription across Respondents’ property, linking their residential parcel to their rental parcel.

After a brief bench trial, the court entered a judgment finding that Appellants had failed to meet the burden of proof necessary to establish a prescriptive easement. Appellants filed a motion for new trial, which was heard, after which the trial court entered a final judgment again stating that Appellants had failed to satisfy the necessary burden of proof. Specifically, the court found that Appellants’ use was permissive as opposed to adverse, and “[flurther, and in any event, [Appellants] have not shown a legal description sufficiently definite to acquire a prescriptive easement across the property in question.”

Appellants appeal from that judgment, which we must affirm “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 [1] (Mo. banc 1976). Our review is undertaken with the knowledge that the law does not favor prescriptive easements and that the necessary elements for their establishment must be proven by clear and convincing evidence. [407]*407Moss v. Ward, 881 S.W.2d 238, 241[2] (Mo.App.1994).

On appeal, Appellants do not challenge the court’s finding that they had not shown a description sufficiently definite to acquire an easement (“location issue”), but instead limit their argument to the permissive/adverse use issue and a request for attorney fees stemming therefrom.

Appellants’ abandonment of the location issue in their brief means that they have conceded it, and therefore we are not compelled to consider it. City of Lee’s Summit v. Browning, 722 S.W.2d 114, 115 (Mo.App.1986). Moreover, we may affirm the court’s judgment on the location issue alone since “ ‘the judgment of the trial court must be affirmed if it is correct on any theory.’ ” Id. (citing Rosenblum v. Gibbons, 685 S.W.2d 924, 927 (Mo.App.1984). Appellants’ failure to argue the location issue leaves it as an independent basis for affirmance. Id. (citing May Dept. Stores Co. v. County of St. Louis, 607 S.W.2d 857, 868-69 (Mo.App.1980)).

Although Appellants have abandoned the location issue, we nonetheless exercise our discretion and review such question under the plain error standard of Rule 84.13(c)1 This we do in order to determine if manifest injustice or a miscarriage of justice has resulted from the judgment.

“To establish a prescriptive easement, it is necessary to show use that has been continuous, uninterrupted, visible and adverse for a period of ten years.” Whittom v. Alexander-Richardson, 851 S.W.2d 504, 508 [8] (Mo. banc 1993); Speer v. Carr, 429 S.W.2d 266, 268 [2] (Mo.1968). For a use to be “continuous” it is necessary that there “be no break in the essential attitude of the mind required for adverse use.” Whittom, 851 S.W.2d at 508 [10]. “[W]hen a way is claimed by prescription, the character and extent of it is fixed and determined by the use under which it is gained. Any material change in its use during the course of the prescriptive period interrupts and may prevent the acquisition of the right.” Riggs v. City of Springfield, 344 Mo. 420, 126 S.W.2d 1144, 1149[4] (banc 1939). See also Peterson v. Medlock, 884 S.W.2d 679 (Mo.App.1994).

An overriding requirement for establishing a prescriptive easement is “[e]vidence which will enable the easement to be located....” Dillon v. Norfleet, 813 S.W.2d 31, 32[1] (Mo.App.1991). See also Teson v. Vasquez, 561 S.W.2d 119, 127 (Mo.App.1977).2

At trial, Appellants’ counsel endeavored to locate the easement through the testimony of Mr. Wells, who pointed at and marked on photographs in an attempt to indicate the location of the alleged path. For instance, while pointing at one photograph, Mr. Wells testified: “And these — this table and chairs that they have put out in the pathway — it goes right direct through there.” However, there is no testimony that one could actually see a “pathway” in the photographs.3 The lack of an exact location of a “pathway” is revealed in this same direct examination:

“Q. Would you take this marker to make a mark on it and show approximately where you crossed.
[408]*408A. Okay. I did.
Q. Like this?
A. Yes.” (Emphasis ours.)

After further direct examination of Mr. Wells attempted to establish the position of various landmarks in the photographs, the following testimony took place:

“A ... So I’m 60 to 70 feet behind their house when I go through there.”
[[Image here]]
Q. Well, give us — give the Court an idea of where you’re asking the Court to allow you to cross, where you believe you’re asking the Court to make a prescriptive easement for you to cross.
A. On this picture right here, it would be right direct through here. Just like that.

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Bluebook (online)
916 S.W.2d 405, 1996 Mo. App. LEXIS 248, 1996 WL 63968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-carpenter-moctapp-1996.