Hodgkinson v. Hatten

687 S.W.3d 201

Roy A. HODGKINSON, Elisabeth Hodgkinson, Robert Campbell, Stephen Campbell and Amy Campbell, and Judy Wolf, Plaintiffs-Respondents,

and

Shirley Deines, Plaintiff,

v.Steven HATTEN, Defendant-Appellant.

No. SD 37926

Missouri Court of Appeals, Southern District, In Division.

Filed: March 22, 2024

APPEAL FROM THE CIRCUIT COURT OF MCDONALD COUNTY, The Honorable Jacob R. Skouby, Special Judge

Attorney for Appellant - William J. Fleischaker of Joplin, MO.

Attorney for Respondents - William G. Weber of Pineville, MO.

JENNIFER R. GROWCOCK, J.

Steven Hatten ("Steven") appeals a judgment of the Circuit Court of McDonald County ("trial court") granting Roy Hodgldnson ("Roy"), Elisabeth Hodgkinson ("Elisabeth"), Robert Campbell ("Robert"), Stephen Campbell ("Stephen"), Amy Campbell ("Amy"), and Judy Wolf ("Judy") (collectively, "Respondents") a prescriptive easement to use a road known as Hodgkinson’s Lane (the "Lane") located on Steven’s property.¹ Raising two points on appeal, Steven argues the trial court misapplied the law by finding Roy was entitled to a prescriptive easement because the evidence established Roy believed his use of the Lane was permissive (Point I) and further misapplied the law by finding Respondents were entitled to a prescriptive easement because the evidence established Respondents all believed the Lane was a public road (Point II). Finding no error, we affirm the trial court’s judgment.²

Factual Background and Procedural History

Steven owns approximately 60 acres in McDonald County described as: All that part of the East half (E ½) of the Northwest Quarter (NW ¼) of section 34, Township 22, Range 31, McDonald County, Missouri, lying North of Highway "K" (the "Property"). Steven purchased the Property from Leroy Chad Williams ("Chad")³ in April of 2015, and Chad previously purchased the Property "around 2002." The Lane existed on the Property when Chad bought it. The Lane begins at Highway K and runs north through the Property to the Cyclone Hills Subdivision ("Cyclone Hills").

Roy owns property located in Cyclone Hills described as, "All of Lot 4 of Cyclone Hills Subdivision 1, as per the recorded plat thereof, McDonald County, Missouri." Judy owns property connected to Cyclone Hills off of Wishbone Lane and north of the Property. Stephen’s family owns property at the end of the Lane in Cyclone Hills, and Elisabeth owns Lot Five in Cyclone Hills.

At some point after Chad bought the Property and after he started seeing vehicles using the Lane, he dug a four-foot hole across the Lane. Elisabeth confronted Chad about the hole and emphasized that her father, Roy, was in poor health, and the Lane through the Property was, "at times[,]" the only access for Roy or emergency vehicles to get in or out. Chad agreed that "under dire circumstances," if Roy needed medical assistance and if another access road was impassable, Roy and Elisabeth could use the Lane through the Property for "emergency purposes and/or health issues" but "only under those circumstances[.]" Afterwards, Roy put some gravel on the Lane, despite Chad advising against it. Chad told Roy the Lane was "a logging road that belonged to [Chad]."

After Steven purchased the Property, he tried to close the Lane again. He pulled down a realtor sign someone had placed at the end of the Lane and went to the sheriff’s department to inform them the Lane on his Property was not an access for Cyclone Hills or any other property. Steven also notified 911 he was closing the Lane through his Property and hired someone to repair the culvert under Swan Lane, which he claimed provided access to Cyclone Hills. Sometime around May 1, 2016, Steven installed a gate across the Lane on the Property. Roy filed suit against Steven, and Roy put more gravel on the Lane the following week.

Elisabeth, Robert, Stephen, Amy, Judy, and Shirley joined Roy’s suit as co-plaintiff’s; and Steven filed a counterclaim for trespass against all plaintiffs. The case proceeded to a bench trial on August 4, 2021.

At trial, a maintenance worker for McDonald County testified he performed road grader maintenance on the Lane for the County, which he knew as "Hodgkinson Lane[,]" in the 1990s. When the maintenance worker was grading the Lane for the County, he noticed several people buying and moving into the lots behind the Property. The worker further testified Swan Lane was not passable up to those lots after a "[b]ig washout[,]" which the County never fixed.

A repossession agent testified he first used the Lane to access Cyclone Hills "around 2000." He repossessed five cars in two months in early 2000, and then occasionally repossessed more vehicles after that. He noted there are several houses and trailers on the Lane. Since 2000, the repossession agent only went to Cyclone Hills to see Roy and to take Roy’s cars. The repossession agent never asked Chad or Steven for permission to use the Lane. When the repossession agent tried to access Cyclone Hills through Swan Lane six years before trial, he found it was not passable.

Another witness, someone living on Swan Lane, testified the only person he saw using Swan Lane to access Cyclone Hills was the phone company. The Swan Lane resident owned four properties along Swan Lane, moved to one property in 1997, and then moved to another along Swan Lane in 2015. The Swan Lane resident further testified he had used the Lane to access properties by Roy since 1997; that Roy and Elisabeth used the Lane to access their properties; and that he never saw Roy, Elisabeth, Robert, Stephen, or Judy use Swan Lane to access their properties. The Swan Lane resident never asked permission to use the Lane to see Roy, and, according to him, "Everybody knows it’s a road" and "Everybody has rode [sic] down that lane[.]"

Stephen and Robert’s father, Jesse Campbell ("Jesse"), testified he used the Lane to access Cyclone Hills, including Stephen’s, Robert’s, and Judy’s properties, since 1969. Whenever Jesse used the Lane, he did not ask Chad or anyone else for permission. When Chad dug a ditch across the Lane to close it in 2000, Jesse and Roy went to the local courthouse to speak with county commissioners and to "get that ditch taken care of[.]" It was at this time Jesse found out McDonald County decommissioned the Lane as a county road in "early 2000" because it lacked the manpower and money to maintain the Lane properly. Roy and Jesse discussed the matter with Chad, and the ditch was later filled. Thereafter, Roy continued to maintain the Lane for "15 to 18 years[.]" Jesse also testified he never used Swan Lane to access Cyclone Hills because Swan Lane is impassable unless one uses a "four-wheeler[,]" and he did not know anyone owning property in, or connected to, Cyclone Hills who used Swan Lane to access their property by vehicle.

Stephen testified he lived in the area of Cyclone Hills his entire life and had likewise used the Lane to access his property all of his life. Stephen was 50 years old at the time of trial, and he never asked anybody for permission before using the Lane to access his property. Stephen also testified he had no personal knowledge of anyone using Swan Lane to access Cyclone Hills or any property connected to the subdivision.

Roy testified he had lived on his property in Cyclone Hills since 1996. According to Roy, the Lane was "the only way" he went in and out of Cyclone Hills, and medical items were delivered "every couple months" using the Lane. A propane company also used the Lane to deliver propane. Roy testified he did not ask permission to use the Lane when he started using it, though he confirmed Chad once tried to keep him from using the Lane by digging a trench. Roy had used the Lane as an access road for "[a]round 20 years" by the time Steven put out a letter saying he was going to close it.

Judy testified she had been using the Lane, and no other access, to get to the back side of her ranch property since 1999, but she also said the Lane had "been used since ’63." She used the Lane "probably" monthly but on a daily basis during the rainy season because the Lane was the only way out once the water rose. Judy testified further that she used the Lane to retrieve cattle from the top of her property because the bottom land portion was only passable by tractor or four-wheel drive pickup. No one ever told Judy she could not use the Lane, and she never asked for permission before using it.

On January 4, 2023, the trial court entered its amended judgment in favor of Respondents,⁴ The trial court found, "there is nothing adverse about [Respondents’] use of the [Lane] when it was generally looked upon as a public road." It also found Chad "indicated that he only gave permission to the Hodgkinson’s [sic] to use the [Lane] ‘under dire circumstances[,]’ " and therefore:

[T]he Hodgkinson’s [sic] everyday use of the road was violative of the conditional permission given to them by [Chad], and thus, non-permissive. The other [Respondents] testified they never sought, nor were they ever given permission to use the [Lane].

The trial court’s judgment granted Respondents’ request for a prescriptive easement to use the Lane through the Property, denied Shirley’s request for a prescriptive easement because there was "no evidence" she used the Lane, and denied Steven’s counterclaim for trespass. This timely appeal followed.

Standard of Review

[1] We review a trial court judgment granting or denying a request to recognize a prescriptive easement using the standard of review set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Eakins v. Sadler, 683 S.W.2d 303, 305 (Mo. App. S.D. 1984). Accordingly, we "must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Humphreys v. Wooldridge, 408 S.W.3d 261, 264 (Mo. App. S.D. 2013) (quoting Grider v. Tingle, 325 S.W.3d 437, 440 (Mo. App. S.D. 2010)). "We view the...