Baumhoff v. Lochhaas

• Decision Date: 11 June 1923
• Docket Number: No. 23537.,23537.
• Parties: BAUMHOFF v. HOCHHAAS et al.
• Court: Missouri Supreme Court

253 S.W. 762

BAUMHOFF v. HOCHHAAS et al.

No. 23537.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Motion for Rehearing Denied July 14, 1923.

Appeal from St. Louis Circuit Court; C. A. Wurdeman, Judge.

Action by George W. Baumhoff against George Lochhaas and others, in which the defendants filed an equitable cross-bill. Judgment for plaintiff, and defendants appeal. Affirmed.

Brackmann, Hausner & Versen, of St. Louis, for appellants.

E. Mc D. Stevens, of Clayton, for respondent.

Statement.

BATLEY, C.

This is a suit in equity, wherein plaintiff seeks to enjoin defendants from traveling over, and using, a strip of ground, 20 feet in width, and 52 feet in length, as a private road, which crosses appellants' land, and over a small corner of plaintiff's land. The defendants filed an equitable cross-bill, asking the court to reform the deed of John Lochhaas, their father (and under whom they claim), to the respondent, so as to specifically reserve a right of way over the said corner of respondent's land, the latter having been acquired by plaintiff from said John Lochhaas by the deed, above mentioned; to correct the clause, if necessary, granting to respondent a right or easement over appellants' land to the Quinette road; for an injunction to prevent plaintiff from closing any part of said roadway on his or their lands and interfering with their use of same, and for general relief.

The general facts are substantially as follows: On and prior to September 4, 1909, John Lochhaas, deceased, was the owner of a tract of land in St. Louis county, Mo., crossed by the right of way of the St. Louis & San Francisco Railway at Meramec Highlands, in said county. Said right of way runs practically in an easterly and westerly direction, and the Lochhaas land lies north and south of it. That part north of said right of way, the land of said John Lochhaas, extended to, and abutted on, the Quinette public road of said county. The lane thus separated by said railroad is connected by a road which had been maintained, it is claimed, for a period of 50 years or more, which said road, ever since the building said railroad, crosses the same through a viaduct built in said right of way, and under the track of said road. The land is rough and hilly where said right of way is located, and gradually rises, as it extends northward. South of the railroad tracks, it slopes gradually to a level plain, which is referred to as the "Bottom" or "Lowlands." The railroad. right of way, where said private road crosses it, is much wider than it is at other points.

On said 9th day of September, 1909, John Lochhaas sold and conveyed by warranty deed the southwest portion of his land aforesaid., lying south of said railroad, to the respondent. The controversy here is over that part of the private road aforesaid, 52 feet in length and 20 feet in width, located in the northeast corner of the land conveyed to respondent by the Lochhaas deed aforesaid. The conveyance of said strip of 52 feet by 20 feet, according to the evidence of appellants, completely cut off all means of access to said grantor's remaining lands south of said railroad, as said tract is said to be surrounded by the real estate of others. The private road aforesaid, it is claimed by defendants, was, and is now, a way of necessity, and the only feasible way into the lowlands of appellants. Immediately north and east of the above-mentioned corner, the ground is rough and rocky.

As matters stood, after the conveyance to respondent aforesaid, the grantor, if compelled to abandon the use of said strip in controversy, would have been obliged to condemn a right of way over the same private road, over the lands of others, or over the Frisco right of way, or construct a road over other portions of their own land.

The real estate in question was surveyed about the time said deed was executed, but shortly before. All negotiations concerning the sale of said land were carried on between respondent and John Lochhaas. On the day the property was surveyed, George J. Lochhaas, one of the appellants, was present, and said he heard respondent say the irregular shaped corner was surveyed, in order that he could get up on the Quinette road without having to travel over so much of appellants' land. This witness testified that his father told him he would use that road in company with Baumhoff.

It appears from the evidence that after the land was surveyed, John Lochhaas and his daughter went to Clayton in said county, and visited the office of D. C. Taylor, an attorney, for the purpose of having said deed and papers prepared. Mr. Taylor testified in substance that respondent and John Lochhaas came to his office to have said deed prepared; that he drew the contract and wrote said deed; that in his opinion defendants' plat, marked "Exhibit 2," was there when the above writing was done; that respondent did most of the talking, and Lochhaas did very little talking, as he was below the point of mediocrity and had been for years; that Lochhaas told him he had sold the piece of land to Baumhoff, and the contract was to be drawn accordingly; that there was to be a roadway, or right of way, from the northeast corner of the tract sold to Baumhoff, out to the Quinette road; that Baumhoff was to have the use of that roadway and have the rght to travel that road out to the Quinette road; that he did not Know the tract of land which was conveyed was cornering on that road or overlapping the road, and the plat did not show that; that Lochhaas did not at that time say anything about the strip in question here; that he had never done any legal work for Baumhoff before; that he had been Lochhaas' attorney in former business matters, and was paid by him for such services.

The evidence tends to show that after said deed was executed, Lochhaas kept using said private roadway over his land, and over the strip in controversy, until his death, which occurred two years later; that appellants used the same, ever since, without objection on the part of respondent, until the filing of this suit.

The court in its final decree found the issues in favor of plaintiff, and against defendants on plaintiff's cause of action, and in favor of said plaintiff and against said defendants on the cross-bill of appellants, and dismissed said cross-bill. The court, in said decree, enjoined defendants from trespassing on plaintiff's land described therein. It also decreed that plaintiff and defendants are entitled to the use in common of the 20-foot strip of ground running from the northeast corner of plaintiff's land aforesaid to said Quinette road, as and for their private right of way, which said strip is described in the judgment. The decree concludes, by adjudging that defendants take nothing by their cross-bill; that plaintiff go hence without day, as to said cross-bill, and that defendants pay two-thirds of the costs herein incurred; that plaintiff pay one-third thereof, and that execution issue therefor.

Defendants' motion for a new trial having been filed and overruled, they appealed the cause to this court.

Opinion.

I. The plaintiff sought by a bill in equity to restrain defendants from trespassing on the land described in a deed made to him by John Lochhaas, the father of...