Anthony v. Kennard Building Co.

Decision Date24 May 1905
PartiesANTHONY et al., Appellants, v. KENNARD BUILDING COMPANY
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Horatio D. Wood Judge.

Affirmed.

Rassieur Schnurmacher & Rassieur for appellants.

(1) The court sustained a demurrer to plaintiffs' evidence. In actions in equity, as well as at law, the demurrer to the evidence concedes every fact which the evidence tends to prove, and every inference fairly deducible from the facts proved. Hence, if there is any evidence in the record, from which adverse user, or user as of right, might be inferred the trial court erred in sustaining the demurrer to the evidence. Healey v. Simpson, 113 Mo. 345; Patton v. Bragg, 113 Mo. 600; Bank v. Simpson, 152 Mo. 656. (2) Upon such a record, the appellate court does not defer to the finding of the trial court, for there is no finding of facts by the trial court. In sustaining the demurrer, the trial court decides that the evidence does not tend to prove, directly or inferentially, the issues tendered. (3) Knowledge of user is presumed where the user has been open and notorious. When the circumstances do not indicate a user, by permission, a presumption arises, from the proof of user as of right for the statutory period, that the user was adverse. Jones on Easements (1898), secs. 164, 186; Washburn on Easements and Servitudes (4 Ed.), 156; Thompson on Highways, Ways, etc., chap. 414; Barnes v. Haynes, 13 Gray (Mass.) 188; Blake v. Everett, 1 Allen (Mass.) 248; Stearns v. Janes, 12 Allen 582; O'Daniel v. O'Daniel, 88 Ky. 189. (4) When the Statute of Limitations once begins to run, it does not become interrupted by subsequent causes of disability, such as coverture, minority, etc. Pim v. City, 122 Mo. 654; Jones on Easements, sec. 199. (5) Through the tenant's adverse user a right of easement enures to him and his lessor. Smith v. Kinard, 2 Hill (S.C.) 642.

Bryan & Christie, John H. Drabelle, George D. Reynolds and George V. Reynolds for respondent.

(1) Mere lapse of time or length of user, no matter how long the user may be exercised, will not give rise to an easement by prescription. Hunnewell v. Burchert, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440; Smith v. Sedalia, 152 Mo. 283; Pitzman v. Boyce, 111 Mo. 287; Golterman v. Schiermeyer, 125 Mo. 291; Vaughan v. Rupple, 69 Mo.App. 583; Kirk v. Smith, 9 Wheat. 241; Maple v. Stevenson, 122 Ind. 370; Plimpton v. Converse, 44 Vt. 158; Clark v. Paquette, 66 Vt. 386; Zigefoose v. Zigefoose, 69 Iowa 391; Malone on Real Property Trials, 270. (2) No easement could arise unless the alleged user was continuous and exclusive for the full period of time, and unless also it was hostile and adverse to the true owner and under a claim of title by Mrs. Abadie or some one in her behalf. Pitzman v. Boyce, 111 Mo. 387; Field v. Mark, 125 Mo. 502; Brinck v. Collier, 56 Mo. 160; Dunham v. Joyce, 129 Mo. 5; Coberly v. Butler, 63 Mo.App. 556; Hunt v. Adams, 86 Mo.App. 73; Bryan v. East St. Louis, 12 Ill.App. 390; Railroad v. Munsell, 192 Ill. 430; Dexter v. Tree, 117 Ill. 532; Crawford v. Ahrnes, 103 Mo. 88; Nelson v. Nelson, 41 Mo.App. 130; Wilkerson v. Eilers, 114 Mo. 245. (3) The user in the case at bar was neither hostile nor adverse nor in any way inconsistent with an unincumbered title in the respondent and the persons under whom it claims, but such user was entirely consistent with such title, and existed under the neighborly accommodation of the holder of such title; hence, no easement could arise. Field v. Mark, 125 Mo. 502; Brinck v. Collier, 56 Mo. 160; Railroad v. Ives, 202 Ill. 69; Railroad v. Conlon, 53 L.R.A. 781; Organ Co. v. Forbes, 29 So. 683; Hunt v. Adams, 86 Mo.App. 73; Coberly v. Butler, 63 Mo. 556; Vaughan v. Rupple, 69 Mo.App. 583; Nelson v. Nelson, 41 Mo.App. 130; Stacy v. Miller, 14 Mo. 478; Hunnewell v. Adams, 153 Mo. 440; Pitzman v. Boyce, 111 Mo. 387. (4) (a) In order to create an easement, it was necessary that the alleged user should also have been under a claim of right in Mrs. Abadie as owner of the fee to such user. No tenant of Mrs. Abadie could prescribe except in the name of Mrs. Abadie. Goddard on Easements, 145; Washburn on Easements (4 Ed.), 129; Smith v. Kinard, 2 Hill (S.C.) 642; Perley v. Hilton, 55 N.H. 444. (b) There was no claim of right in this case, hence, no easement could arise. Hunnewell v. Burchert, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 444; De Bernardi v. McElroy, 110 Mo. 650; Vaughan v. Rupple, 69 Mo.App. 583. (5) Neither was the alleged user uninterrupted, nor was its alleged adverse character open and notorious, nor was it such that respondent had any reason to believe that it was meant to be adverse, or under any claim of right. Downing v. Dinwiddie, 132 Mo. 92; Curtis v. Water Co., 20 Ore. 34; Morse v. Williams, 62 Me. 445. (6) The burden of proof was upon appellants to clearly prove by a preponderance of evidence all the elements essential to a title by prescription. The burden was upon appellants to show by a preponderance of evidence not only a user, but in addition thereto and as independent facts, to further show "that it was exercised adversely and under a claim of right" in Mrs. Abadie. Smith v. Sedalia, 152 Mo. 283; Hunnewell v. Burchert, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440; Dammeron v. Jamison, 143 Mo. 483; District of Columbia v. Robinson, 180 U.S. 92; Lynde v. Williams, 68 Mo. 360; Clark v. Clark, 133 Cal. 667; Wilson v. Railroad, 83 Tex. 153; Dewey v. McClain, 7 Kan. 126; Wilkerson v. Thompson, 82 Mo. 317; Whaley v. Jarrett, 69 Wis. 613; 2 Greenleaf on Evidence, sec. 539. (7) The law presumes that every user is rightful and consistent with the true title and ownership and not in opposition or adverse thereto. Hunnewell v. Burchert, 152 Mo. 611; Smith v. Sedalia, 152 Mo. 283; Organ Co. v. Forbes, 29 So. 683; Rose v. Farmington, 196 Ill. 226; Bryan v. East St. Louis, 12 Ill.App. 390. (8) Particularly is this true where, as in the case at bar, the Kennard Building Company and its grantors had a way for the use of their own premises, and the use by other persons was without causing damage to respondent or its predecessors in title. In such cases the use is held to be permissive under an implied license and as a neighborly indulgence, and is held not to be adverse or under claim of right. From such neighborly use, no matter how long continued, no easement could arise. Field v. Mark, 125 Mo. 502; Pitzman v. Boyce, 111 Mo. 387; Brinck v. Collier, 56 Mo. 166; Stacy v. Miller, 14 Mo. 478; Coberly v. Butler, 63 Mo.App. 556; Nelson v. Nelson, 41 Mo.App. 130; Frye v. Village of Highland, 85 N.W. 351; Railroad v. Conlon, 53 L.R.A. 781; Reed v. Garnett, 23 S.E. 182; Railroad v. Ives, 202 Ill. 69; Wood v. Reed, 30 N.Y.S. 112; Cook v. Gammon, 93 Ga. 298; Jones on Easements, sec. 270; Washburn on Easements (4 Ed.), 152. (9) Appellants' claim of easement must fail for the further reason that it is based upon an alleged cross-easement in favor of this respondent's predecessors in title against Mrs. Abadie. Since Mrs. Abadie, during the entire time of the alleged user, was a femme covert, no adverse user could operate against her, and the basis of appellants' alleged claim would fail. Washburn on Easements (3 Ed.), 163; Rothwell v. Jamison, 147 Mo. 601; Goddard on Easements, 162.

VALLIANT, J. Marshall, J., not sitting.

OPINION

VALLIANT, J.

This is a suit in equity by which the plaintiffs seek to enjoin the Kennard Building Company from erecting their building so as to cover a strip of land over which plaintiffs claim an easement as an alley appurtenant to property held by them by leasehold.

In 1899 the defendant, the Kennard Building Company, acquired from Mrs. Drummond, the owner in fee, a lease for a term of ninety-nine years of certain real estate in St. Louis fronting east on the west line of Fourth street, extending from Washington avenue on the north to St. Charles street on the south, measuring its east line 150 feet 8 5-8 inches on the west line of Fourth street, its north line 90 feet 2 1-8 inches on the south line of Washington avenue, and its south line 110 feet 10 1-2 inches on the north line of St. Charles street. The west lines ran as follows: beginning at a point in the south line of Washington avenue 90 feet 2 1-8 inches west of its intersection with the west line of Fourth street, thence south parallel with the west line of Fourth street 75 feet 4 1-2 inches, thence west parallel with the south line of Washington avenue 20 feet 8 1-4 inches, thence south 75 feet 4 1-2 inches to a point in the north line of St. Charles street 110 feet 10 1-2 inches west of its intersection with the west line of Fourth street.

In March, 1890, Henry Anthony, now deceased, under whom the plaintiffs claim, acquired from Mary L. and Eugine S. Abadie a lease for a term of fifty years of a lot adjoining on the west of that above described and fronting on the south line of Washington avenue on which line it measures 29 feet 1 7-8 inches, with a depth southward of 75 feet 3 1-3 inches. The fee of this lot is in Mary L. Abadie, her husband Eugine S. Abadie having therein a right as tenant by the curtesy initiate.

At the date of the lease to the Kennard Company, above mentioned the land embraced in it was covered, except the alley in question, by a row of buildings called the Veranda Row, sometimes also called the Armory Hall Building, the first story of which was divided so as to form a number of stores or shops, some fronting Fourth street and some Washington avenue, and at the same time the lot now occupied by the plaintiffs was covered, except a strip 2 feet 1 3-4 inches wide on the east side, by a three-story brick building, 27 feet wide by 65 feet long, designed originally...

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