Court of Appeals of Missouri, Eastern District, Third Division
AUBREY RUTHERFORD and MARY RUTHERFORD, Husband and Wife, Respondents/Cross-Appellants,
JACK DAVIS and SHIRLEY DAVIS, Husband and Wife, Appellants
Appeal from the Circuit Court of Cape Girardeau County. Hon. William L. Syler.
FOR APPELLANT: Wendell L. Hoskins, Caruthersville, MO.
FOR RESPONDENT: Albert C. Lowes, Cape Girardeau, MO.
Kurt S. Odenwald, P.J.
and Gary M. Gaertner, Jr., J., concur.
ROBERT G. DOWD, JR.,
This appeal arises from a property dispute between Jack and Shirley Davis and Aubrey and Mary Rutherford. The Davises appeal the judgment entered after a bench trial finding that they had not acquired a prescriptive easement over a portion of the Rutherfords' land. The Rutherfords cross-appeal the denial of their request for attorney fees. We affirm the judgment finding no prescriptive easement
and dismiss the cross-appeal regarding attorney fees.
The Rutherfords' property has been subject to a recorded easement since 1977 when they entered a contract granting the adjacent property owners permission to use a sixteen-foot wide road as a means of ingress and egress across the Rutherfords' property. The road turns at a point just in front of the Rutherfords' home. The Davises began repeatedly driving their vehicles outside the bounds of the recorded easement road at that curve. Over the years, the Rutherfords erected a number of obstacles to prevent the Davises from encroaching onto their property, all of which were removed bye the Davises.
The Rutherfords filed a petition in 2013, claiming that the Davises had trespassed on their property by driving outside the limits of the recorded easement road and by removing items from the Rutherfords' property. They sought an injunction, damages, costs and attorney fees under the contract. In response, the Davises asserted that they, and the previous owners of their property, had been using the area around the curve in the road for more than ten years, openly, notoriously and hostile to the Rutherfords' ownership of that property. They alleged that the easement cannot be used to transport farm equipment without widening the road at that turn.
At the bench trial, the Rutherfords presented their own testimony and the testimony of two land surveyors. Jack Davis and another neighbor, who also uses the easement road for property access, testified for the defense. In its judgment, the trial court expressly found the witnesses presented by the Rutherfords were " credible" and the testimony of Jack Davis was " incredible."
The trial court found that the Davises did not have justification for removing the obstacles from the Rutherfords' property. The court stated that it was making " no finding as to lawful or unlawful deviation" from the recorded easement and found that the recorded easement was " adequate" to give the Davises access to their property. It further found that the Davises failed to make a case for prescriptive easement and that there was no evidence to establish adverse possession of the disputed area. The court found that the Davises failed " to present credible proof of continuous use that was uninterrupted" and failed " to establish precisely where they were claiming by a prescriptive easement," so that the Rutherfords were on notice. The court held that the recorded easement is the only easement available to the Davises and directed them to stay within that easement. It further ordered that the Rutherfords were not allowed to erect a fence on the property around the easement that was taller than four feet high. It denied the Rutherfords' request for attorney fees, but assessed costs against the Davises.
We will affirm the judgment in a court-tried case unless there is no substantial evidence to support it, it 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). We accept as true all evidence and reasonable inferences favorable to the prevailing party and disregard contrary evidence and inferences. Federal National Mortgage Association v. Wilson, 409 S.W.3d 490, 494 (Mo.App. E.D. 2013). We also defer to the trial court's resolution of conflicting evidence and its credibility determinations. Id. We may affirm the judgment in a court-tried case if it is sustainable on any ...