Amitin v. Izard, 28491
| Decision Date | 18 November 1952 |
| Docket Number | No. 28491,28491 |
| Parties | AMITIN et al. v. IZARD et al. |
| Court | Missouri Court of Appeals |
Jones & Alexander, D. Calhoun Jones, Philip S. Alexander, St. Louis, for appellants.
White, White & White, Samuel White, Louis E. Zuckerman, St. Louis, for respondents.
Plaintiffs (respondents) instituted this action seeking to enjoin defendants (appellants) from interfering with their use of a private road upon which was located property owned by plaintiffs. It was alleged that the defendants placed barricades (wooden horses) on a portion of said roadway and erected a number of signs thereon reading, 'Private Road--Keep Out.' In addition to an injunction plaintiffs sought to recover $5,000 actual and $10,000 punitive damages as a result of the actions and conduct of defendants in relation to said road. Defendants, Harry and Rose Izard, filed counter-claims totaling $15,000 against plaintiffs upon which the court ordered a separate trial.
The appeal herein was originally taken to the Supreme Court, but that court determined that the jurisdiction was in this court, to which the cause was transferred.
In 1934 Dr. and Mrs. John C. Doubek purchased a tract of land in St. Louis County containing 5.453 acres which was bounded on the north by Gravois Road. They built a residence upon the northeast corner of the tract, the same being known and numbered as 9290 Gravois Road. On March 10, 1936, the Doubeks executed an instrument entitled, 'Establishment of Private Road,' by which they created a private road 30 feet wide and 400 feet long extending southwardly from a point on the south line of Gravois Road approximately 150 feet west of the northeast corner of their tract. Immediately after the description of the entire tract there appears in said instrument this recital, 'And Whereas, it is the intention and purpose of said parties hereto to develop said tract of land; to facilitate said development it is necessary to establish a private road, 30 feet wide, through a part of said property.' After describing the proposed road the instrument further recites, 'Which said private road shall be for the joint use and benefit of the present and future owners of the property abutting thereon, their heirs and assigns.' This instrument was recorded the following day. Also on the 10th day of March, 1936, the Doubeks executed a deed to Charles Strattman and wife conveying a tract which fronted on the south 174 feet of said 400 foot private road on the west side thereof. This deed specifically granted a right of way over said private road. Two houses were built on this tract and the property was later reacquired by the Doubeks and was owned by them at the time this suit was instituted, the houses being occupied by a son and a daughter. These houses are generally referred to as being located on 'Doubek Court.' The Doubeks also caused an all weather surface 17 feet wide to be placed on this private road.
On January 7, 1946, the Doubeks sold their residence to the defendants, Harry and Rose Izard. The tract conveyed fronted 150 feet on Gravois Road and extended along the east side of said private road for a distance of 316 feet from the south line of Gravois Road. At about the same time their son, the defendant, Carleton F. Izard, purchased from the Doubeks a tract on the west side of the private road which had a frontage on Gravois Road of 105 feet and extended back along said private road to the Strattman tract. On April 20, 1946, the Doubeks deeded all of the remainder of their land to plaintiffs, Samuel R. and Janet Amitin, and Charles and Ruth E. Weber, Jr. This deed did not specifically grant a right of way over the private road.
Mr. Sam Ziden, a real estate broker, was the agent for Dr. Doubek and wife in the sale of all of the tracts heretofore mentioned. Shortly thereafter Mr. Ziden, the father-in-law of Samuel Amitin, undertook to develop the land purchased by Amitin and Weber into what became known as Ziden Subdivision. At the expense of $7,000 they established and paved an extension of the private road to a point almost to the south end of the tract, which extension was named Darlene Drive. As a part of this project they paved or resurfaced the south 84 feet of the private road. They also improved and paved a portion of Daisy Lane, which is a short street extending west from the south end of Darlene Drive to Niles Place. Daisy Lane afforded an adequate means of ingress and egress into the Ziden Subdivision so that it was not necessary for residents thereof to use the private road. There were 25 lots laid out in this subdivision, only two of which abutted laterally on the private road heretofore mentioned. At the time of the final hearing most of these lots had been sold and about 16 houses built thereon.
Before this subdivision was laid out the private road served three families and ordinarily three or four cars would travel thereon each day, although occasionally there would be as many as eight or ten. After the development of Ziden Subdivision many more vehicles used this road, a number of them being large trucks containing machinery, lumber and other supplies for the development of the subdivision and the construction of the buildings thereon. The defendants seriously objected to this increase in traffic. They stopped one truck from coming over the road by blocking it with two cars. They later placed a barrier (wooden horse) on a part of the road near the entrance from Gravois and another near the south boundary of Carleton Izard's lot. These barriers were about seven feet long and upon each of them was placed a sign, 'Private Road--Keep Out.' Similar signs were also placed at the same points on posts by the side of the road. It appears that on two different Sundays Mr. Izard stopped a number of cars that were about to enter the private road and said something to the occupants which caused them to turn around.
These signs and blockades were placed upon the road in March, 1949, and on March 12 the attorney for plaintiffs wrote to the defendants asking them to remove the same and when they failed to do so this suit was filed on March 23. On May 6 of that year the court issued a temporary restraining order and on July 29 after a lengthy hearing the trial court issued a temporary injunction. On June 2, 1950, a hearing was had at which it appeared that the defendants had placed a sign at the side of the road which stated, This sign was electrically lighted so that it could be read at night. The court found this to be a violation of the temporary injunction and each of the defendants was fined, the aggregate amount being $100.
The case was thereafter heard on the merits and on February 13, 1951, the court entered a decree providing for a permanent injunction, the defendants being enjoined from 'erecting, placing or maintaining upon, along, or adjacent to the roadway 30 feet in width and 400 feet in length established by John C. Doubek and wife by written instrument dated March 10, 1936, any 'blockades' or any 'keep out' signs or signs of any nature or obstruction of any nature obstructing, interfering with, or hindering the use by the plaintiffs, their heirs and assigns, of said private road for a private roadway for pedestrian or vehicular traffic between Gravois Road and their respective tracts or parcels of land or any part or portion thereof owned or possessed by them, and being a part of the 5.453 acres described in said written instrument.'
This being an equitable action it is our province and duty to review the evidence de novo and to enter such decree as should have been entered upon the evidence, with due deference being accorded the findings of the trial chancellor, especially those depending upon conflicting testimony. Hubert v. Magidson, Mo.Sup., 243 S.W.2d 337; Kessler v. United Agencies, Inc., Mo.App., 243 S.W.2d 779.
The principal issue in this case must be determined by a construction of the written instrument creating the private road 400 feet in length. By this instrument did the Doubeks establish this road for the joint use and benefit of the present and future owners of the property abutting laterally thereon or was it for the use and benefit of all present and...
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