(DOWNLOAD) "Kenneth Holian and Carol Holian v. Clara" by Division 1 Supreme Court of Missouri ~ eBook PDF Kindle ePub Free
eBook details
- Title: Kenneth Holian and Carol Holian v. Clara
- Author : Division 1 Supreme Court of Missouri
- Release Date : January 11, 1971
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
Description
Landowners' action to quiet title and bar adjoining property owners from claiming any title or interest in plaintiffs' land. Landowners prayed that they be declared the fee simple owners of the land and that defendants have no right, title or interest in the premises, and that title be quieted in plaintiffs. Defendants pleaded a right or interest in a roadway through the property by adverse use of the roadway by defendants and the general public for over 50 years; that defendants have the right to use the roadway as a means of ingress and egress to their property, and asserted by way of affirmative defense that (1) defendants had acquired an interest in and right to use the roadway by the continuous, open, hostile, actual and open use of the roadway under claim of right known to plaintiffs and their predecessors for over 50 years, and (2) the roadway is a public road, having been used and maintained by the public for a period of over 10 years. Defendants prayed that they be adJudged to have a right or interest in the roadway as a way of ingress and egress to and from their land and that plaintiffs have no right to prevent them from continuing to use the roadway in the same manner and to the same extent that it has been used for a period of more than 10 years preceding this action. The trial court found the issues for defendants; decreed that defendant Clara Guenther has an easement by prescription to the use of the roadway as a way of ingress and egress to and from her property; permanently enjoined plaintiffs from interfering with the use of the roadway by Clara Guenther, and ordered plaintiffs to remove any padlocks barring travel on the roadway. Plaintiffs have appealed from the judgment, contending first that the court erred in not finding that plaintiffs have the right to keep the gates closed and to padlock them against all persons other than Clara Guenther, provided she be furnished with a key, and second that the court erred in not requiring Clara Guenther to close the gates enclosing plaintiffs' land and lock the padlock at all times she finds the gates closed, and relock the padlock after passage. Alternatively plaintiffs claim that the trial court erred in not finding that plaintiffs acquired a prescriptive right to maintain the gates across the way. Plaintiffs do not seek to set aside the holding that defendant Clara Guenther has an easement across the land for use of the roadway. Their complaint is that Clara Guenther has been adJudged to have an unrestricted easement. They seek an amendment or modification of the decree to restrict her to an easement right requiring her to leave the gates open or closed depending upon how she finds them upon approaching the gates. Plaintiffs state their position as follows: ""* * * defendant Clara Guenther acquired a passway by prescription with gates and padlocks thereon, she is restricted to the use of it with the gates and padlocks and is not entitled to have them removed; however, she is entitled to have keys.""