Nash v. Michael , 547 S.W.2d 885 ( 1977 )

BILLINGS, Chief Judge.

The Circuit Court of Camden County entered judgment in favor of the defendants in plaintiffs’ suit to establish a private roadway by prescription over lands owned by defendants.

In this court tried case, our review is under Rule 73.01, V.A.M.R., as recently construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Murphy states the judgment of the trial court is to be sustained 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.

Four essential facts are necessary to establish an easement by prescription: first, user for the prescriptive period of ten years [Guerin v. Yocum, 506 S.W.2d 46, 47 (Mo.App.1974)]; second, user was adverse; third, user was under claim of right; fourth, the owner had notice of the user, and of its character and claim of right. Carpenter-Union Hills Cemetery Association v. Camp Zoe, Inc., 547 S.W.2d 196 (Mo.App.1977).

We have reviewed the transcript and exhibits and briefs of the parties. The testimony of the nine witnesses for plaintiffs and twelve witnesses for defendants was conflicting and the trial court concluded an easement by prescription was not shown. Giving due regard to the opportunity of the trial judge to have judged the credibility of the witnesses [Rule 73.-01(3)(a)], we believe there is substantial evidence to support the judgment.

No error of law appears. An opinion would have no precedential value and the judgment is affirmed pursuant to Rule 84.-16(b), Y.A.M.R.

All concur.