Bernero v. McFarland Real Estate Co.

• Decision Date: 01 December 1908
• Citation: 134 Mo. App. 290,114 S.W. 531
• Parties: BERNERO v. McFARLAND REAL ESTATE CO.
• Court: Missouri Court of Appeals

114 S.W. 531

134 Mo. App. 290

BERNERO v.McFARLAND REAL ESTATE CO.

St. Louis Court of Appeals. Missouri.

December 1, 1908.

Rehearing Denied December 15, 1908.

1. EASEMENTS (§ 1)—CREATION—NATURE OF RIGHT—"AFFIRMATIVE EASEMENT."

An affirmative easement is one which entitles the owner of the dominant estate to make active use of a servient tenement, or to do some act which in the absence of the easement would be a nuisance or a trespass, such as rights of way, etc.

2. EASEMENTS (§ 1)—CREATION—NATURE OF RIGHT—"NEGATIVE EASEMENT."

A negative easement is a right in the owner of the dominant tenement to restrict the owner of the servient tenement in respect of the tenement in the exercise of general and natural rights of property, such as rights of light and air.

3. EASEMENTS (§ 3)—CREATION—NATURE OF RIGHT—APPURTENANT TO LAND.

Where a deed stipulates that a strip of land of the grantor adjoining the property conveyed "shall forever remain vacant as an easement between the property of the said grantor and grantee, his heirs and assigns," the right granted is appurtenant to the land conveyed, and inures to subsequent grantees or to whomsoever the title of the dominant estate shall come.

4. EASEMENTS (§ 1)—CREATION—NATURE OF RIGHT.

An easement is a privilage without profit which the owner of one neighboring tenement has of another, existing in respect to their several tenements, by which the servient owner is obliged to suffer or not to do something on his own land for the advantage of the dominant owner; and it may be affirmative in its nature, permitting an active use of the servient tenement to the benefit of a dominant estate, or it may be negative only, as for the right of light and air, in which case an active use is not allowed.

5. DEEDS (§ 93)—CONSTRUCTION—INTENTION.

The controlling rule for the interpretation of deeds, if unambiguous, is to ascertain the intention of the grantor from the words employed.

6. DEEDS (§ 90) — CONSTRUCTION AGAINST GRANTOR.

The rule of construction that an ambiguity in a grant other than public must be construed against the grantor should not be invoked until the application of other rules has failed to elucidate the grantor's intention.

7. DEEDS (§ 100)—CONSTRUCTION.

In construing an ambiguity in a deed as to the subject-matter granted, the facts and circumstances which surrounded the parties and the subject-matter and attended upon the use of the words employed by the grantor may be considered.

8. EASEMENTS (§ 12)—EXTENT OF RIGHT— EXPRESS GRANT.

The principle that in construing an ambiguity in a grant it is permissible to consider the facts and circumstances which surrounded the parties and subject-matter and attended upon the use of the words employed by the grantor applies to deeds creating an easement.

9. EVIDENCE (§ 461)—PAROL EVIDENCE AFFECTING WRITINGS—CONSTRUCTION OF LANGUAGE—INTENTION OF PARTIES AS TO SUBJECT-MATTER.

In the interpretation of the ambiguous words, "an easement," in a deed, parol evidence of the use of the land incumbered by the easement is admissible to show whether the grantor intended to create an affirmative or a negative easement.

10. EVIDENCE (§ 461)—PAROL EVIDENCE AFFECTING WRITINGS—CONSTRUCTION OF LANGUAGE—INTENTION OF PARTIES AS TO SUBJECT-MATTER.

In the interpretation of an ambiguous deed, parol evidence of the conduct of the parties with respect to the subject-matter of the grant contemporaneous with and recently after its execution is admissible to show the intention of the grantor.

11. EASEMENTS (§ 3) — RIGHT — EASEMENTS APPURTENANT.

Where a landowner conveyed a part by warranty deed stipulating that a strip adjoining the land conveyed "shall forever remain vacant as an easement," and a driveway along the strip had been constructed and was in use at the date of the deed, and the strip was used for many years thereafter for that purpose, the deed created an affirmative easement appurtenant to the land conveyed to be used as a driveway as then and theretofore enjoyed.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Theresa Bernero against the McFarland Real Estate Company.From a judgment for defendant, plaintiff appeals.Reversed.

Virgil Rule, for appellant.Albert C. Davis, for respondent.

NORTONI, J.

This is a suit for injunctive relief.The plaintiff filed her bill in equity, seeking to restrain the defendant from interfering with and interrupting her free use of an easement on defendant's lot of ground, and immediately adjacent to that of the plaintiff.Upon a hearing the court found the issues for the defendant, denied the relief prayed for, and plaintiff appeals.

The facts out of which the controversy arose are as follows: On March 9, 1899, the defendant was seised and possessed of a lot of ground in the city of St. Louis situate at the southeast corner of Taylor and Maryland avenues, in city block No. 3899.This lot had a front of 123 feet and 2½ inches on Maryland avenue, by a depth southwardly of 213 feet to a public alley in said block.Prior to that time there had been erected thereon two hotel buildings, one known as the "Westmoreland Hotel," fronting to the north on Maryland avenue, and the other, the Annex, which was situate to the south of the Westmoreland Hotel and fronted to the west on Taylor avenue.Between the two buildings there was an open space of 40 feet from north to south, running lengthwise from east to west.On the date mentioned, March 9, 1899, the plaintiff's husband purchased from the defendant a portion of said lot of ground, on which was situate the Westmoreland Hotel.The defendant retained the portion of the lot of ground on which was situate the Annex.The portion of the lot purchased by the plaintiff's husband is described by metes and bounds as follows: Commencing at the northwest corner of said lot—that is to say, at the southeast corner of Taylor and Maryland avenues—and running thence east, along the south line of Maryland avenue, 123 feet and 2¼ inches; thence south, on a line parallel with Taylor avenue, 213 feet, to the public alley; thence west, along the north line of said public alley and parallel with the south line of Maryland avenue, for a distance of 23 feet and 2¼ inches; thence north, 100 feet, on a line parallel with the east line of Taylor avenue; thence west, 100 feet, to a point on the east line of Taylor avenue 113 feet south of the southeast corner of Taylor and Maryland avenues; thence north, along the east line of Taylor avenue, to the point of beginning, to wit, the southwest corner of Taylor and Maryland avenues, or the northwest corner of said block.As stated, the Westmoreland Hotel was situate upon the lot of ground above described.The defendant retained the southwest portion of the entire lot, being a parcel of ground 100 feet square on which was located the Annex.Between the hotel building and the Annex, there is an open space 40 feet in width running lengthwise east and west.Of this 15 feet thereof immediately south of the Westmoreland Hotel and adjacent to the line dividing the two properties, as described in the deed, was parcel of the ground conveyed to the plaintiff's husband while 25 feet thereof on the north side of the Annex and immediately adjacent to and south of the line dividing the two properties was parcel of the lot of ground retained by defendant, on which was situate the Annex.The evidence shows that at this time there was in process of construction an addition on the south side of the east end of the Westmoreland Hotel, to be occupied as a kitchen and butcher shop.On the south end of the 23-foot strip of plaintiff's lot, running to the public alley and adjacent to the line dividing plaintiff's property from that of defendant's, there had been constructed a coal shed.The accompanying plat will disclose the location of the Westmoreland Hotel, the kitchen, butcher shop, coal shed, and the Annex, the vacant space between the Westmoreland Hotel and the Annex, the dividing lines of the two properties, and a strip of ground marked "ten-foot cinder road" over which is the easement involved.

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

The conveyance employed in passing title from defendant to plaintiff's husband was a general warranty deed containing the usual words of grant, etc.After having fully described the property conveyed, the grant touching the easement proceeds in the following language: "It is also agreed and understood by and between the parties hereto that a ten-foot strip of ground belonging to the grantor herein adjoining on the south and west the property hereby conveyed shall forever remain vacant as an easement between the property of said grantor and grantee, his heirs and assigns.Said strip of ten feet in width shall begin at a point in the east line of Taylor avenue 113 feet south of the south line of Maryland avenue, and extend east and parallel with Maryland avenue 100 feet, thence south and parallel with Taylor avenue 100 feet to the north line of a public alley running east and west through said block."It will appear by reference to the plat that the ground over which the easement is granted is parcel of the lot retained by defendant, and lies immediately adjacent to the south line 100 feet in length of the Westmoreland Hotel property, and the west line, 100 feet in length, of the 23 feet and 2¼ inches in the rear of the...