Ball v. Gross, Nos. 38095

CourtCourt of Appeal of Missouri (US)
Writing for the CourtALDEN A. STOCKARD; SIMEONE, C. J., and NORWIN D. HOUSER
Citation565 S.W.2d 685
PartiesWilliam E. BALL, Appellant-Respondent, v. Blanche GROSS, Appellant-Respondent. . Louis District,Division Four
Decision Date28 March 1978
Docket NumberNos. 38095,38114

Page 685

565 S.W.2d 685
William E. BALL, Appellant-Respondent,
v.
Blanche GROSS, Appellant-Respondent.
Nos. 38095, 38114.
Missouri Court of Appeals,St. Louis District,Division Four.
March 28, 1978.
Motion for Rehearing and/or Transfer Denied May 9, 1978.
Application to Transfer Denied June 15, 1978.

Page 687

Donald U. Beimdiek, St. Louis, for William Ball.

Blumenfeld, Kalishman, Marx, Tureen & Paster, P. C., Bruce M. Wurmser, Clayton, for Blanche Gross.

ALDEN A. STOCKARD, Special Judge.

On October 30, 1959, the owners of an undeveloped tract of land in St. Louis County, consisting of approximately 25 acres, conveyed to Blanche Gross, defendant herein, "a perpetual easement," 40 feet in width and described by metes and bounds, over and across said tract for "railroad purposes." The eastern terminus of the easement strip was the boundary of the right-of-way of the Chicago, Rock Island and Pacific Railroad Company. The deed provided that the easement was "exclusive" except the grantor of the easement had certain rights to use the railroad facilities if constructed. On July 16, 1971, by warranty deed, the corporation which had conveyed the easement to defendant conveyed title to the tract to plaintiff. No mention was made in the deed of the easement but it was of record.

Adjoining the 25 acre tract on the west is an undeveloped tract of approximately 5 acres. On December 28, 1959 title to that tract was acquired by Mary Virginia Loire, stipulated by the parties to have been a "straw party for defendant, Blanche Gross, and Edward Bakewell, Jr. being the real owners of the property described in said deed," who on the same day "acting pursuant to express instructions of Blance (sic) Gross and Edward L. Bakewell, Jr., conveyed to defendant and Edward L. Bakewell, Jr. a perpetual easement for railroad purposes." That easement strip, described by metes and bounds, joined the western terminus of the easement across the 25 acre tract. In 1962, acting pursuant to express instructions of defendant and Edward L. Bakewell, Jr., Loire conveyed title to the 5 acre tract to Eileen Weinstein, also stipulated by the parties to have been a "straw party" for "Blanche Gross and Edward L. Bakewell, Jr., who remained the real owners of the land described in said deed." On April 10, 1964, "acting pursuant to the express instruction of Blance (sic) Gross and Edward L. Bakewell, Jr." Weinstein conveyed title to the 5 acre tract to plaintiff by general warranty deed. No mention of the easement dated December 28, 1959 was made in the warranty deed. Subsequently, Edward L. Bakewell, Jr. assigned all his interest in the easement to defendant.

On October 3, 1973, plaintiff filed an action in two counts; the first of which was to quiet title to the 25 acre tract. Plaintiff prayed that the court adjudge and decree that "said easement rights (in the 25 acre tract) was extinguished by the merger of title to the dominant and servient estates relating to said easement." Count II was for damages based on the wrongful refusal of defendant "to remove" the easement from the records. Defendant filed a counterclaim in which she alleged that by reason of the deed dated December 28, 1959, she acquired a "perpetual easement for railroad purposes" across the 5 acre tract but that plaintiff "constructed a building and improvements in and over a portion of the easement aforesaid," which he refuses to remove. She prayed that plaintiff be required to remove the building and that he be enjoined from erecting further improvements on the area covered by the easement.

The judgment of the trial court was as follows: "Cause having been previously heard and submitted and the Court being advised in the premises finds in favor of the Defendant on Plaintiff's petition and finds in favor of the Plaintiff on Defendant's Counterclaim." Plaintiff and defendant have each appealed. We shall consider first the appeal by defendant.

Plaintiff points out that defendant has never used the easement, that she has no present plans for its future use, that she

Page 688

owns no property with access to the easement strip, and that she testified that it was "possible" she would never build railroad facilities on the easement strip. He further points out that neither the terms of the purported easement nor the deed to him contains any restriction on the use of the land by the owner of the fee prior to the use of the easement strip for railroad purposes. These circumstances would justify the refusal of the trial court to issue the requested mandatory injunction. However, there is a more compelling reason why the judgment of the trial court was correct.

Although on December 28, 1959 record title of the 5 acre tract was in Mary Virginia Loire, by joint stipulation of the parties...

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13 practice notes
  • Jordan v. Stallings, No. 19930
    • United States
    • Court of Appeal of Missouri (US)
    • November 27, 1995
    ...an abandonment must be proven by clear and convincing evidence. Hennick v. Kansas City S. Ry. Co., 269 S.W.2d at 650. In Ball v. Gross, 565 S.W.2d 685, 689 (Mo.App.E.D.1978), the court said that "an easement granted for a particular purpose terminates as soon as such purpose ceases to exist......
  • Harrison v. State Highways and Transp. Com'n, No. 14814
    • United States
    • Court of Appeal of Missouri (US)
    • June 9, 1987
    ...by mere nonuser, however extended the period of nonuser may be, such easement may be extinguished by abandonment. 3 Ball v. Gross, 565 S.W.2d 685, 689 (Mo.App.1978). If the nonuser is accompanied by conduct of the owner of the easement which definitely evinces an intention to surrender the ......
  • Knox County Stone Co. v. Bellefontaine Quarry, Inc., Nos. 73826
    • United States
    • Missouri Court of Appeals
    • December 15, 1998
    ...by H.K. Porter. An owner cannot have an easement over its own land. Denning v. Manley, 610 S.W.2d 51, 56 (Mo.App.1980); Ball v. Gross, 565 S.W.2d 685, 688 (Mo.App.1978). Neither H.K. Porter nor MPC could "abandon" or "extinguish" an easement which did not exist. An owner's use or non-use of......
  • Tenampa, Inc. v. Bernard, WD 83226
    • United States
    • Court of Appeal of Missouri (US)
    • October 13, 2020
    ...by operation of law. An easement granted for a particular purpose terminates as soon as such purpose ceases to exist. Ball v. Gross , 565 S.W.2d 685, 689 (Mo. App. 1978) (citing 28 C.J.S. Easements § 54(a)). The circuit court found that Bernard and Gatrost intended "that their ownership of ......
  • Request a trial to view additional results
12 cases
  • Jordan v. Stallings, No. 19930
    • United States
    • Court of Appeal of Missouri (US)
    • November 27, 1995
    ...an abandonment must be proven by clear and convincing evidence. Hennick v. Kansas City S. Ry. Co., 269 S.W.2d at 650. In Ball v. Gross, 565 S.W.2d 685, 689 (Mo.App.E.D.1978), the court said that "an easement granted for a particular purpose terminates as soon as such purpose ceases to ......
  • Harrison v. State Highways and Transp. Com'n, No. 14814
    • United States
    • Court of Appeal of Missouri (US)
    • June 9, 1987
    ...by mere nonuser, however extended the period of nonuser may be, such easement may be extinguished by abandonment. 3 Ball v. Gross, 565 S.W.2d 685, 689 (Mo.App.1978). If the nonuser is accompanied by conduct of the owner of the easement which definitely evinces an intention to surrender the ......
  • Tenampa, Inc. v. Bernard, WD 83226
    • United States
    • Court of Appeal of Missouri (US)
    • October 13, 2020
    ...by operation of law. An easement granted for a particular purpose terminates as soon as such purpose ceases to exist. Ball v. Gross , 565 S.W.2d 685, 689 (Mo. App. 1978) (citing 28 C.J.S. Easements § 54(a)). The circuit court found that Bernard and Gatrost intended "that their ownershi......
  • Phelan v. Rosener, No. ED 104677
    • United States
    • Court of Appeal of Missouri (US)
    • February 28, 2017
    ...easement there must be a dominant and servient estate and " ‘they must not be lodged in the same person.’ " Ball v. Gross , 565 S.W.2d 685, 688 (Mo. App. 1978), quoting Marshall v. Callahan , 241 Mo.App. 336, 229 S.W.2d 730, 735 (1950). "[A] man cannot have an easement over h......
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