Field v. Mark

• Decision Date: 18 December 1894
• Citation: 28 S.W. 1004,125 Mo. 502
• Parties: FIELD v. MARK et al.
• Court: Missouri Supreme Court

28 S.W. 1004

125 Mo. 502

FIELD v. MARK et al.

Supreme Court of Missouri, Division No. 2.

December 18, 1894.

DISQUALIFICATION OF JUDGE — WAY OF NECESSITY — DEDICATION.

1. Rev. St. § 3322, providing that, whenever the judge of any circuit court shall for any cause be unable to hold court in his circuit, he may request the judge of another circuit to hold it for him, applies to the trial of an action to which a circuit judge is a party.

2. The mere fact that a strip of land, if used as an alley, would be a great convenience to property, does not make it a way of necessity.

3. The fact that an owner of land permitted the public generally to pass over a strip of the land, in connection with the use of the strip by himself and his tenants, does not show an intent on his part to dedicate the strip to the public use, where at times he maintained gates across the strip, and performed other acts of ownership.

Appeal from circuit court, Lafayette county; Charles W. Sloan, Special Judge.

Action by Richard Field against Edward Mark and another to remove obstructions from a strip of land claimed to be an alleyway. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

Plaintiff, by his action, seeks to have removed certain alleged obstructions from parts of lot 1, block 45, First addition to Lexington, being a strip of 5 feet in width, extending from Laurel street west about 40 feet, and also a strip about 10 feet wide, extending from the alley through said block north about 60 feet; claiming that the said strips constitute private ways or alleys, and that the same had been obstructed by the defendants. The allegations of the petition are traversed by the answer, and absolute ownership of the parts of said lot claimed as alleys is alleged to be in the defendants, and, further, that defendants and those under whom they claim title have been in the open, continuous, peaceable, and adverse possession as such owners for more than 10 years next before the beginning of the suit. These allegations are put in issue by the reply. Block 45 was divided into regular lots, 20 in number, 6 being on each side of an alley 20 feet wide running east and west through the said block, Main street being on the north, and Laurel street on the east, of the said block, and lot No. 1 being the east and north lot in the tier of lots, having the said Main street on the north, Laurel street on the east, and the public alley on the south. See plat.

Samuel Wilson, now deceased, became the owner of lot 1, and also subsequently of 6 feet and 3 inches off of the east side of lot 2, which gave him a frontage of 60 feet and 3 inches on Main street by 140 feet back to said alley. At this time the entire property was vacant. In 1864 he conveyed to Caroline Mitchell a part of lot 1 out of the southeast corner, being 20 feet on Laurel street, running back along the alley 40 feet, and in April, 1867, he also conveyed to said Caroline Mitchell another part of lot 1, being 40 feet on Laurel street by 40 feet deep, and just north of last place; and in the same month, 1867, he

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

conveyed to Alexander Mitchell, Stephen G. Wentworth, and William Morrison (afterwards Morrison-Wentworth Bank) a portion of lot 1 out of the northeast corner, being 20 feet on Main street, running back 75 feet. This left the title in Samuel Wilson, as will be seen, of a strip 5 feet wide between the Morrison-Wentworth Bank and the last property conveyed to Caroline Mitchell, running back 20 feet, and abutting on the ground or parcel next below described. It also left a strip next to the Morrison-Wentworth Bank of 20 feet on Main street by 60 feet deep; also, 10 feet off of the west side of lot 1, and 6 feet and 3 inches off of the east side of lot 2, making 16 feet and 3 inches on Main street, and running back 140 feet to the public alley, Soon after these conveyances, respectively, Mitchell built upon the piece first conveyed to his wife, in the southeast corner, a blacksmith shop, which covered the entire space of 20 by 40 feet; the Morrison-Wentworth Bank erected a building practically covering their entire lot; while Samuel Wilson built two storerooms, two stories, covering his entire frontage on Main street, and running back 75 feet. Plaintiff, by mesne conveyances, became the owner of the Caroline Mitchell 60 feet fronting on Laurel street, and 40 feet deep, and abutting on the south of the 20-foot public alley in the center of the block. Samuel Wilson died seised of record of the 36 feet and 3 inches fronting on Main street, adjoining the Morrison-Wentworth Bank building, and running back, the east 20 feet 80 feet, and the west 16 feet and 3 inches 140 feet, to the alley in the center of the block, and a strip 5 feet in width and 20 feet long, lying between the Mitchell property and Morrison-Wentworth Bank building. His estate was duly partitioned, and all of the last above described tracts or parcels were assigned to his widow, Mrs. Jane H. Wilson, in fee. In March, 1887, she conveyed all this land to William and David Smith by warranty deed. In the succeeding April, David and William Smith conveyed the east half of the front on Main street to S. G. Wentworth and William Morrison by warranty deed, and included the 5 feet between the bank and Mitchell 60 feet on Laurel street, and a strip 8 feet wide back to the alley, and adjoining the Mitchell lots on the west, with right to passage in the stairway leading up to the building in the rear, and reserving the right to use, occupancy, and right of ingress and egress over the passway of 5 feet in the rear of the bank, and the continuation of said line to west line of said property conveyed. In October, 1887, Wentworth and Morrison conveyed the last-described tracts by the same description by warranty deed to Edward Mark, reserving a right of way over the strip of 5 feet. In 1891 the defendants, Edward and Herman Mark, bought the west half of the lots fronting on Main street, and adjoining the last-described tract, and all the remainder of the Samuel Wilson tract. Defendants thus became the record owners of the two tracts in which plaintiff claims the easement of a private alley. After the purchase by Caroline Mitchell, as before said, she sold off of the north end of No. 2 a strip 20 feet on Laurel street, running back 40 feet. On this ground Klug erected a two-story brick building running back about 25 feet, leaving a small yard in the rear, which was fenced, having two gates, — one to the north, opening into what is claimed as the 5-foot alley; one to the south, opening into the lot between this building and the blacksmith shop, out of which there was another gate opening onto Laurel street. Klug, if he desired a side entrance, instead of leaving one out of his own property, covered the entire frontage with his building, the lower part of which was used as a shop, with a stairway running to the second story, which was used as a residence. Shortly after the purchase of the first tract (20×40) by Caroline Mitchell, her husband, John A. Mitchell, built a brick blacksmith shop covering its entire dimensions, and with a door in the rear, opening upon the 10-foot strip in controversy, which was used by the blacksmith as a way in and out of his shop for horses, which were forbidden by city ordinance from being led, on the sidewalk to enter at the front. This building was erected, and this use of the strip was made, with the knowledge and consent of Samuel Wilson, who also about that time built, conjointly with Mitchell, a double brick privy west of the blacksmith...