Bales v. Butts

• Decision Date: 05 June 1925
• Docket Number: No. 24965.,24965.
• Citation: 274 S.W. 679
• Parties: BALES et ux. v. BUTTS et ux.
• Court: Missouri Supreme Court

274 S.W. 679

BALES et ux. v. BUTTS et ux.

No. 24965.

Supreme Court of Missouri, Division No. 2.

June 5, 1925.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Suit by John P. Bales and wife against Charles W. Butts and wife. Decree for plaintiffs, and defendants appeal. Reversed and remanded, with directions.

Joseph N. Walker and Eastin & McNeely, all of St. Joseph, for appellants.

Mytton & Parkinson, of St. Joseph, for respondents.

Statement.

RAILEY, C.

In order to have a clearer view of the streets, the location of the properties involved, the water pipe, etc., we hereby adopt and make a part of this opinion the plat, marked Defendants' Exhibit 2, which was offered in evidence without objection, to wit:

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

The petition contains two counts: The first prays for equitable relief. The second is purely an action at law for damages, and was practically abandoned at the trial. The first count alleges that on the 16th day of October, 1920, plaintiffs purchased from Frank M. Andrews and wife certain real estate in Buchanan county, Mo., as follows: All of the south part of east half of the 5-acre tract of land in southeast quarter of southwest quarter of section 16, township 57, range 35, which said east half of said 5-acre tract was acquired by Frank Andrews, by warranty deed dated April 8, 1895, and was duly recorded in said county; that said south part of the east half of said 5-acre tract is more fully described in petition as shown by said plat. It is alleged that on March 25, 1921, defendants, husband and wife, purchased of said Frank Andrews and wife all of the north part of the east half of the 5-acre tract aforesaid, more particularly described in petition; that the north line of above mentioned 5-acre tract of land is identical with the south line of Duncan street, in the city of St. Joseph and county aforesaid; that defendants are, and at all times thereafter have been, in possession of said real estate. It is averred that prior to the possession of said real estate by defendants of that part purchased by them, and by plaintiffs of that part, purchased by them, both tracts were owned by Frank Andrews and wife, who held and occupied the same; that 15 or 20 years prior to the date of the sale of same said Frank Andrews and wife extended a water pipe from a point in Duncan street over and across the tract of land so owned by said Andrews and wife, extending from said Duncan street on the north, southward to and through the property now owned by plaintiffs, and through the property now owned by defendants; that at intervals and spaces of approximately each 40 feet tees or joints were placed in said water pipe for the purpose of connecting and tapping said pipe, to run to different houses which might be erected on said land; that said water pipe was laid for the use and benefit of all said property, including that now owned and occupied by plaintiffs, and for the use of the owners thereof; that ever since the laying of said pipe the house on said property now occupied by plaintiffs has been connected with said water pipe and received its water supply through same; that the property north thereof became, and at all times after the laying of said pipe was, and now is, subject to an easement and right, in favor of the property now owned by the plaintiffs for the purpose of said water pipe running through same and connecting with the property now owned by plaintiffs; that when plaintiffs purchased said real estate from Andrews and wife it was with the understanding and agreement that they should have the free use of said water pipe from said Duncan street through the property now owned by defendants for supplying water to the property so purchased by the plaintiffs, and that they did so purchase said right from said Andrews and wife.

The petition charges that plaintiffs have a right to have said water pipe remain unmolested and unobstructed; that there is no other way feasible or practicable to receive a water supply at their property or extend a water pipe thereto, and that the only means of obtaining water is through said pipe; that defendants wantonly severed the connection and deprived plaintiffs of water. They prayed a mandatory injunction to compel defendants to restore said connection, and a restraining order to prevent them from severing it again, etc.

A demurrer to said petition was filed by defendants and overruled. They thereupon moved to dissolve the restraining order, which was also overruled.

The defendants thereafter filed an answer admitting the ownership in fee and the possession of the land described in plaintiffs' petition. They denied every other allegation contained in said petition.

There is not much conflict in the testimony relating to the general facts. The evidence shows substantially, that Frank M. Andrews and Melissa Andrews, his wife, were the owners, and the common source of title to 5 acres of land in St. Joseph, Mo., extending from Duncan street in said city south past Doniphan avenue, and lying between Nineteenth and Twentieth streets, although not abutting on either. Many years ago two houses were constructed on this land, which consisted of a large tract of ground, and a water main or pipe was laid across said property, extending from Duncan street on the north, across a considerable portion of the tract of ground, to near the south side thereof. About 15 years before this action was commenced a water pipe was placed across said tract and places left for openings of intervals of each 40 or 50 feet, so that connections could be made with houses that might thereafter be built on the property. The two houses were at that time connected with this water pipe; the same pipe supplying both houses with water. The house on the south, or farthest from the water main in Duncan street, was occupied for some years by Frank M. Andrews and wife, and the house on the north occupied by the daughter of Mr. and Mrs. Andrews and her husband. In the fall of 1920, plaintiffs purchased the south tract of land and house by contract, and moved into same on November 13, 1920. The contract called for a general warranty deed upon the completion of certain payments in accordance with the contract price. Thereafter, and on January 31, 1923, the purchase price was fully paid and a warranty deed delivered to plaintiffs. The defendants purchased the north property in 1921, and received a deed therefor, on April 2, 1921. In addition to said water pipe supplying both properties for more than 15 years, there was also a joint cesspool for the use of both properties, located on the division line; part being on the property purchased by plaintiffs, and part on that purchased by defendants. Both houses were strictly modern, and plaintiffs had no other water for drinking purposes, bath, etc., save that furnished by this pipe. Plaintiffs would have to go a distance of 500 or 600 feet to connect with a water pipe. When plaintiffs bought their property they claim that it was understood between them and Andrews and wife that they would be provided with water through this pipe. When Butts moved on their place the plaintiffs had no talk with them about the water pipe. Butts said he knew nothing about it until after he got deed and went to have the water bill put in his own name. The water pipe got to leaking about the 1st of October, 1922, and Butts disconnected the pipe and capped it. The water pipe is under the ground all the way through the land of both plaintiffs and defendants.

The court made the injunction permanent on final hearing, and defendants appealed to this court.

Opinion.

I. Respondents claim that defendants' land is impressed with an easement in their favor for the perpetual maintenance of a water pipe connecting their dwelling house with a water main in St. Joseph, Mo. On the other hand, it is contended by appellants that, on the facts disclosed by the record, the plaintiffs are not entitled to maintain this action. Turning to the evidence, we find that Frank Andrews and wife were the owners and the common source of title of the real estate conveyed by them to plaintiffs and defendants as described in evidence; that while the owners of all said land, and about 15 years before the, date of trial, said Andrews and wife constructed the water pipe in controversy, beneath the surface...