Benson v. Fekete

• Decision Date: 12 February 1968
• Docket Number: No. 51923,51923
• Parties: R. G. BENSON, Erma Nell Benson, his wife, Elizabeth D. Henry, Catherine H. Stewart and Louise H. Franciscus, Appellants, v. Thomas F. FEKETE and Pearl L. Fekete, his wife, Respondents.
• Court: Missouri Supreme Court

Page 729

424 S.W.2d 729

R. G. BENSON, Erma Nell Benson, his wife, Elizabeth D Henry, Catherine H. Stewart and Louise H Franciscus, Appellants, v. Thomas F. FEKETE and Pearl L. Fekete, his wife, Respondents.

No. 51923.

Supreme Court of Missouri, En Banc.

Feb. 12, 1968.

McCormick V. Wilson, Jefferson City, for appellants.

Hendren & Andrae, by John H. Hendren and Alex Bartlett, John M. Dalton, Jefferson City, for respondents.

PRITCHARD, Commissioner.

In this suit to quiet title to an easement of ingress and egress over a dead-end alleyway in plaintiffs, and to enjoin defendants from interfering with plaintiffs' use thereof, and for an order that a fence erected by defendants be removed, the judgment below was for defendants.

The alleyway in question is in Jefferson City, Missouri, and is to the rear of defendants' building. The entrance to the alleyway is from a public alley sometimes referred to as 'Hog Alley,' which runs in an east-west direction from Madison Street, which is a norty-south public street. 'Hog Alley' abuts defendants' property on the north. The following plat, used by the parties during the trial, shows the dimensions and relationship of the properties affected by the judgment:

Exhibit 1

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

Referring to the plat, Tract (1) is that owned by defendants, the Feketes. Tract (2) is owned by plaintiffs, Elizabeth D. Henry, Catherine H. Stewart and Louise H. Franciscus, who in the transcript are called the 'Henry girls.' Tract (2) is occupied as tenants by the plaintiffs, Bensons, as a cafe, known as 'The Towne Grill.' Tract (3) is owned by the Bensons and used by them as 'The Esquire Lounge,' a bar or tavern. Tract (6) is a vacant space behind (and to the east of) the building located on Tract (2). Tract (8) is also a vacant space abutting the northerly side of the building located on Tract (3), which has a doorway leading onto Tract (8). Tract (7) is not involved in this suit, being a building which abuts Tracts (5) and (8).

The issue is whether the evidence and applicable law show that plaintiffs and their predecessors in title acquired a private easement by prescriptive use to pass over Tract (5), also owned in fee simple by defendants, for access to the rear entrances to their buildings (Tracts (2) and (3)).

The following facts were stipulated by the parties: The common source of title to Bensons' property (Tract (3)) and defendants' property (Tract (1)) was the Tribune Printing Company, a corporation, which conveyed by warranty deed these two tracts, respectively, on September 17, 1885, and October 31, 1891. Plaintiffs claim an easement over Tracts (5) and (8), 10 feet east to west by 43 feet 9 inches, more or less, north to south. The Feketes purchased Tracts (1) and (5) on February 23, 1965, from Juliet Price Idol. A remainder interest in Tract (2) was conveyed to the Henry girls on December 11, 1956, after a life estate of Donald D. Henry (since deceased). The deed thereto makes no reference to any easement or right to use Tracts (5), (6) or (8).

Tract (2) was originally conveyed to L. D. Gordon on April 11, 1896, by the Tribune Printing Company, with 'the right to use, occupy and enjoy, jointly and in common with the grantors herein and its assigns perpetually the piece of ground immediately in the rear of the property herein conveyed being 12 feet wide from the north to the south and 8 feet long from the east to the west.' (This is Tract (6).)

By a mesne conveyance one Solomon Houck McHenry and wife, Thenia, conveyed to Elizabeth W. Henry (who was Donald D. Henry's spouse and the mother of the Henry girls) Tract (2), with the grant 'also the right to use, occupy and enjoy jointly and in common with Cecil W. Thomas (Thomas Building) or assigns perpetually the piece of ground herein conveyed, being 12 feet from north to south wide and 8 feet long from east to west as conveyed by the Tribune Printing Co. to L. D. Gordon, Record Book 18, page 529.' (The quoted portion is Tract (6).)

The source of title of Juliet Ada Price Idol (who conveyed Tracts (1) and (5) to the Feketes as aforesaid) was by a decree of the Cole County Circuit Court dated May 29, 1953, terminating a trust estate created by the will of Caroline V. Price, deceased, which will vested title in Juliet Ada Price Idol as remainderman. The Price trust estate acquired title to Tracts (1) and (5) by virtue of trustees' deeds from the Sheriff of Cole County dated August 3, 1929. After defendants purchased Tracts (1) and (5) from Mrs. Idol, they erected a fence across areaway (5) (as shown by the photographs) at the southeast corner of the building located on Tract (1). On May 12, 1905, Mattie C. Ewing conveyed to Cecil W. Thomas Tracts (1), (5), (6), (7) and (8), reserving to L. D. Gordon his heirs and assigns, the use in common with others, in the language of Gordon's deed, Tract (6).

The Bensons have leased Tract (2) from the Henry girls since April 1, 1950, and the lease contains no reference to an easement over the Tracts (6), (8) or (5). They purchased Tract (3) on January 9, 1964, from Fred H. and Alma B. English, and neither that deed nor any subsequent to the conveyance (in 1885) from the Tribune Printing Co. contains any reference to an easement over Tracts (5) and (8).

Joseph G. Downs Co. leased Tracts (1) and (5) starting June 3, 1950, for one five-year term from the C. V. Price Estate, then two five-year terms from Juliet Price Idol ending June 2, 1965. The leases, unrecorded, contained the language: 'together with the right to use the alleyway immediately to the rear of said building jointly with and consistently with the use of said alleyway by the owners or occupants of a building immediately adjacent thereto and southerly thereof.'

Juliet Price Idol paid taxes upon and maintained Tract (5), and plaintiffs and their predecessors in title have at no time paid any taxes or assessments on the Tract (5) property.

The testimony adduced by plaintiffs (the Henry girls did not appear or testify) is this: Ed McKenna was formerly the manager of an express company, since 1905 or 1906. The building on Tract (1), originally three stories, was leased to the Postal Telegraph Co., by Cecil Thomas. The building burned and Thomas built the present one-story building, the north one half of which was occupied by the Pacific Express Co. The strip of alleyway in question (Tracts (5) and (8)) was there in 1906 when McKenna commenced working there--it was an open range, no fences or anything. The building had rear doors (Postal Telegraph and the express company) opening onto Tract (5). Donald Henry bought Tract (2) during McKenna's occupancy, who left in 1922. Mr. Pope had the Oak Bar in the building on Tract (3). Donald Henry and others (to the south of Tract (1)) used the alley to some extent, McKenna didn't know how much, but the public used it. 'If you wanted to enter their place of business from the rear, you had no trouble doing it.' McKenna himself had gone into their places from the rear. The 'public' was using the Oak Bar rear entrance to purchase merchandise, and this continued all the time McKenna was there, from 1906 until 1922.

Fred Betts had been familiar with the alleyway, Tracts (8) and (5) since 1915, when he was working for the express company driving a wagon. Pope had a back door on the Oak Bar (Tract (3)); Shryack-Hirst had a grocery wholesale house with a platform on Tract (7), and 'they' would bring their beer there from Tract (3) (Oak Bar) and sit there on the platform and drink it. Betts had seen coal delivered to Tract (1), which was an express office and which had a little basement with a furnace. Max Geisler (occupant of Tract (2)) had no furnace--he got his deliveries, merchandise, music boxes, etc., for his pawnshop through Tracts (5) and (8). Customers and delivery men were using the building's rear entrance of the Oak Bar. Matt Nichols had the building on Tract (2) before prohibition (1919), as the 'Golden Egg' tavern, and deliveries were made to it through Tracts (5) and (8). During prohibition, Otto Slicker and Jack Koester had a lunch counter and sold 'near' beer in the building of Tract (3). They got their deliveries through Tracts (5) and (8). After repeal of prohibition Ernest (Yellow) Norwood opened the Hub Bar in the building of Tract (3), and Fred English wound up with it and put in partitions for a studio. After repeal, Johnny Neutzler and Roy Tharp tore out the partition of the building of Tract (1) and put in a pool hall for ten or fifteen years. During all the time deliveries were made over Tracts (5) and (8) to the two buildings, none (or not very much) being made through the front entrances of buildings on Tracts (1), (2) and (3).

John E. Wells commenced working with Wells Fargo fifty years ago or a little longer 'hustling freight.' That firm occupied half of the building on Tract (1). He was using the alleyway in question (Tract (5)) off 'Hog Alley' where freight was delivered in the two places: Postal Telegraph and the express company, both occupying the Tract (1) building.

Cletus Pope, who had lived in Jefferson City practically all of his seventy-two years of life, is familiar with the building on Tract (3), the English Studio. His father owned it for years and operated a saloon, ending fifty-two years ago when he died. His mother then owned the building in which Swillum and Slicker had a bar, after which Mr. English and the National Cash Register Company occupied it. Mr. Pope and his brother inherited the building when their mother died twelve years ago, and they sold it (to Mr. English) about five years ago. There is a door in this building opening onto the areaway marked Tract (8). Mr. Pope himself had not gone through the door; he did not ever operate a business there and did not know what use was made of the door. He never mentioned the alley to Mr. English at the time he was in the building as his...