Anthony v. Kennard Bldg. Co.

• Decision Date: 24 May 1905
• Parties: ANTHONY et al. v. KENNARD BLDG. CO.
• Court: Missouri Supreme Court

87 S.W. 921

188 Mo. 704.

ANTHONY et al. v. KENNARD BLDG. CO.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

EASEMENTS — GRANT — TITLE BY PRESCRIPTION — EVIDENCE — SUFFICIENCY — TRIAL — FINDING THEORY — DEMURRER TO EVIDENCE — EFFECT.

1. Sustaining a demurrer to the evidence in either a law or equity case means that, as a matter of law, there is some evidence to be weighed, but, as a matter of law, the evidence, when weighed by the trier of fact, is not satisfactory.

2. On the trial of an equity cause, defendant's counsel moved to dismiss the bill at the close of plaintiff's evidence. The trial judge stated that he would sustain a demurrer to the evidence. Plaintiff's counsel interposed that the court was sustaining a demurrer without any demurrer having been offered. The court then stated, "Well, I will dismiss the bill." Plaintiff's counsel replied that he just wanted to know what the record would show, whereupon the court concluded the colloquy by stating to plaintiff's counsel: "This is just the same as if all the evidence had been put in on both sides; that is, I render a decree dismissing the bill for want of equity in the case" — and added: "Demurrer to the evidence sustained, and the bill dismissed." Held that, while the word "demurrer" was used by the court and counsel, yet the court really treated the case as submitted for a finding of the facts on the evidence, notwithstanding the statement, "Demurrer to the evidence is sustained."

3. Although, in legal contemplation, an easement lies only in grant, yet evidence to establish it is not necessarily a deed, since an easement may have existed for such length of time and under such circumstances that the law will presume a grant.

4. When the use of an easement is shown for a length of time equal to that prescribed by the statute of limitations for acquiring title to land by adverse possession, and it is shown that the use was adverse and under a claim of right, with the knowledge of the landowner, the right to an easement is established.

5. In a suit to enjoin the erection of a building by the defendant so as to cover a strip of land over which plaintiffs claimed an easement by an unrecorded grant more than 30 years previously, evidence examined, and held insufficient to show that any grant had ever been made.

6. The evidence was also insufficient to show an adverse user of the strip, or user under a claim of right.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Suit by Marie Anthony and others against the Kennard Building Company. From a decree in favor of defendant, plaintiffs appeal. Affirmed.

Rassieur, Schnurmacher & Rassieur, for appellants. Bryan & Christie, John H. Drabelle, Geo. D. Reynolds, and Geo. V. Reynolds, for respondent.

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 99 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 10½ 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 4½ inches; thence west, parallel with the south line of Washington avenue, 20 feet 8¼ inches; thence south 75 feet 4½ inches to a point in the north line of St. Charles street 110 feet 10½ 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 Eugene S. Abadie a lease for a term of 50 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 3½ inches. The fee of this lot is in Mary L. Abadie; her husband, Eugene 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 plaintiff was covered, except a strip 2 feet 1¾ inches wide on the east side, by a three-story brick building, 27 feet wide by 65 feet long, designed originally for a dwelling, but which has been used for 30 years or more for a restaurant, saloon, etc. In 1890 the remaining 10 feet of the rear of plaintiffs' lot, which up to that date had been used as a back yard, was covered by a one-story addition to the building. Thus the plaintiffs' building covered all their lot, except the strip of 2 feet 1¾ inches on the east line. The dates of the erection of these buildings are not given in the evidence, nor does it appear which, if either, is the older. The evidence only shows that the buildings were there, and the alley between them was there, in 1858. For convenience, we will call the premises now held by the plaintiffs the "Abadie Property," and that covered by the Veranda Row, and now held by the Kennard Building Company, we will call the "Ames Property." The alley in controversy begins on the north line of St. Charles street, having for its west line the west line of the Ames property, and its east line, parallel thereto, running north about 65 feet, with a width of 4 feet 9½ inches; thence east about 20 feet, with a width of 9 feet 10 inches; thence north 75 feet, with a width of 5 feet 3½ inches, to Washington avenue— all of which is on the Ames property, except that, of the space of the 5 feet 3½ inches between the above-named buildings, extending from the rear of the Abadie lot 75 feet to Washington avenue, 2 feet 1¾ inches are on the Abadie lot.

The plaintiffs, in their petition, say that "more than thirty years ago the then holders of said adjoining lots granted to each other, for themselves and their heirs and assigns forever, by deed of conveyance in due form, a right of easement in said strip or private alley for general user for alley purposes, with rights of ingress and egress through and upon said strip from one end to the other, to or from their respective lots, but such deed of conveyance or grant has been lost, and no record thereof preserved; and plaintiffs state that for more than thirty years, and for a time whereof the memory of man runneth not to the contrary, the then owners of the lot above described, leased to plaintiffs as aforesaid, and their heirs, grantees, and assigns, and the occupants of said premises, have continuously, uninterruptedly, notoriously, openly, and adversely been using the said strip of land for alley purposes, and for the purposes of ingress and egress from one end of said alley to the other, and have during all of said time continuously, uninterruptedly, notoriously, openly, and adversely been exercising their right of easement therein." The petition then goes on to say that the Kennard Building Company is about to erect a building on its leased land to cover all that part of the alley that lies on its own land, and thereby destroy plaintiffs' easement, and prays an injunction to prevent the threatened wrong. The answer of the Kennard Company admitted that it had acquired a 99-year lease of the land, and that its purpose was to erect a building covering the alley—that is, so much of the alley as was on its own land —and denied that plaintiffs had any easement therein.

The cause first came on for hearing before the circuit court on the motion of the plaintiffs for a temporary injunction, whereupon the court heard the evidence offered, and denied the motion.

Previous to the filing of the suit the Kennard Company had entered into contracts for the erection of the building at a total cost of about $250,000, work under which was suspended, after suit brought, until the hearing of the motion for a temporary injunction; but when that motion was denied the company, under the advice of its counsel, proceeded with the work, and the building has since been completed.

At the final hearing the evidence on the part of the plaintiffs tended to show as follows: The west walls of the Veranda Row buildings, above ground, were on the east lines of this alley, but the cellars extended to the west line. There were windows and doors in the west walls of the Veranda Row, opening on the alley, and areaways opening through the alley into the cellars, affording the tenants of the Veranda Row light and air from the rear, and rear ingress and egress to and from their premises; also through the area openings in the alley the means of conveying fuel, etc., into the cellars. There was also a stairway about three feet wide in the south half of the alley, extending from the ground up to the Armory Hall, which was on the top floor of the Veranda Row. This stairway was used for access to the hall, particularly for the purposes of carrying refreshments, etc., when entertainments were held there. There were windows on the east side of the Abadie building, opening on the alley, but there were no doors there, and no areaways or entrances through the alley into the cellar of that building. The entrance to...