Barrett v. Bell

Citation82 Mo. 110
PartiesBARRETT v. BELL, Appellant.
Decision Date30 April 1884
CourtMissouri Supreme Court

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

Smith & Krauthoff for appellant.

The court erred in admitting the statements of Hall to plaintiff at the time of the negotiations between them for the assignment of the lease. They were hearsay. Reed v. Pelletier, 28 Mo. 173; O'Neil v. Crain, 67 Mo. 250. The first instruction given on behalf of plaintiff was wrong. It submitted to the jury a question of law. Plaintiff's second instruction was wrong. It declared that plaintiff's claim could only be sustained upon the ground that the kettle was an appurtenance belonging to the hotel. Appurtenances are things belonging to another thing as principal, and which pass as incident to the principal thing. Burrill's Law Dictionary. “The true test as to whether a thing is an incident or appurtenance, seems to be the propriety of relation between the principal and adjunct which is to be ascertained by considering whether they agree in nature and quality, so as to be capable of union without incongruity, and is actually and directly necessary to the full enjoyment of the property.” Wood on Landlord and Tenant, § 213, pp. 310, 311, 312 note; Ogden v. Jennings, 62 N. Y. 526, 531, and cases cited, pp. 531, 532. It was wrong, therefore, to tell the jury “appurtenances” meant “all property, real or personal, that was used as part of the hotel.” This action must rest solely upon the language of the lease. Spaulding v. Abbott, 55 N. H. 423, 427. There is nothing to support the requirement of the law that this kettle must have been an actual necessity, and, as a matter of convenience, it was a mere privilege which Bell had a right to extinguish at any time. Grant v. Chase, 17 Mass. 443; Johnson v. Jordan, 2 Met. 234. The third instruction asked by defendant should have been given. The word appurtenance will carry with it no rights or interest in property of the grantor on other lands owned by him. In order to pass, the property must be situated upon the same land. Bolton v. Bolton, 11 Ch. Div. 969; Leonard v. White, 7 Mass. 6; Frey v. Drahos, 6 Neb. 1; Maitland v. Mackinnon, 1 Hurl. & Colt. 607.

January & White for respondent.

SHERWOOD, J.

Action brought before a justice of the peace to recover damages alleged to have been suffered by plaintiff, because of the removal by defendant of a certain iron kettle from certain premises alleged to have been leased to the plaintiff by the defendant; and it was, also, alleged in the complaint that the kettle was a fixture, and constituted a portion of the leased premises, i. e., the “Bell House” and the property appurtenant thereto. The answer of the defendant was a general denial.

Upon the trial, the plaintiff testified in his own behalf, that since June, 1880, he had been the proprietor of the “Bell House” in the town of Holden, and in connection with it used the kettle in question for heating water with which to scrub the floors and clean the hotel. The kettle was situate on lots 30 and 31, north of the hotel; that he had possession of the “Bell House” by virtue of a written lease made by the defendant to one R. P. Hall, dated October 1, 1878, for three years, and by Hall assigned to him on July 1, 1880, with the consent of defendant.

The said lease was then offered in evidence. The portion material to this case was the granting clause, which was as follows: “That the said Richard Bell has this day leased and rented to the said R. P. Hall, for and during the three years from and after the first day of October, 1878, the Bell House in the town of Holden, Johnson county, Missouri, situate on the north part of lots 60 and 61, said ground being forty-six feet front on Pine street by 138 feet deep in said town, with all the appurtenances thereunto belonging.”

It is quite apparent from the language of the complaint, as well as the language of the lease, that the controlling question in this case is whether the kettle, which was not on the lots specified in the lease, but was set in an iron arch or furnace, situated on lots 30 and 31, north of the hotel, and separated from the lots on which the hotel was built by an alley some twelve feet in width, was one of the “appurtenances” belonging to the hotel and embraced within the terms and specifications of the lease. The lease, it will be noted, and as before stated, does not embrace the lots on which the kettle was situated, nor is there any evidence that defendant was owner of those lots.

The term “appurtenances” carries with it no rights or interest in property of the grantor on other lands which he owns, lands not included in the deed under which the grantee claims. bolton v. Bolton, 11 Ch. Div. 968; Leonard v. White, 7 Mass. 6. It cannot be made to include anything not situate on the land described, though it belong to the grantor and be used by him in his business. Frey v. Drahos, 6 Neb. 1. In that case, the mortgage described the property as “one frame grain elevator warehouse situated on the ground of the ...

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9 cases
  • Czezewzka v. Benton-Bellefontaine Railway Company
    • United States
    • Missouri Supreme Court
    • March 24, 1894
  • Bussmeyer v. Jablonsky
    • United States
    • Missouri Supreme Court
    • March 29, 1912
    ...and many other States there must be, if not a "strict necessity" to support the easement, at least a "reasonable necessity." Barrett v. Bell, 82 Mo. 110; Mulrooney v. Obear, 171 Mo. 613; Vossen Dantel, 116 Mo. 379; Peters v. Worth, 164 Mo. 431; Tiedeman on Real Property (3 Ed.), sec. 432. (......
  • Mitchell v. Missouri Pacific Ry. Co.
    • United States
    • Missouri Supreme Court
    • April 30, 1884
  • Mulrooney v. Obear
    • United States
    • Missouri Supreme Court
    • February 3, 1903
    ...it is not always easy to determine in a given case whether the thing under consideration is appurtenant or not. This court in Barrett v. Bell, 82 Mo. 110, quoted approval the decision of the Court of Appeals of New York in Ogden v. Jennings, 62 N.Y. 526, in which it is said: "Easements exis......
  • Request a trial to view additional results

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