Brier v. State Exchange Bank

• Decision Date: 12 February 1910
• Citation: 125 S.W. 469,225 Mo. 673
• Parties: BRIER v. STATE EXCHANGE BANK OF MACON.
• Court: Missouri Supreme Court

125 S.W. 469

225 Mo. 673

BRIER v. STATE EXCHANGE BANK OF MACON.

Supreme Court of Missouri. Division No. 2.

February 12, 1910.

1. INJUNCTION (§ 118) — PETITION — SUFFICIENCY.

Under Rev. St. 1899, § 3649 (Ann. St. 1906, p. 2055), providing that the remedy of injunction shall exist in all cases where an irreparable injury to property is threatened, etc., a petition which alleged an injury to property already

done, but which contained no averment that any future injury was threatened or anticipated, did not state facts which would justify equitable relief.

2. APPEAL AND ERROR (§ 171) — THEORY OF CASE IN LOWER COURT — RESTRICTIONS ON APPEAL.

Parties are restricted on appeal to the theory on which the cause was tried in the court below.

3. EJECTMENT (§ 9) — TITLE TO EASEMENT — REMEDY.

The action of ejectment is inappropriate to try title to an easement.

4. EASEMENTS (§§ 61, 63) — OBSTRUCTION — REMEDIES.

Where a party is disturbed in the enjoyment of an easement, the remedy is by action at law for damages, or, if the wrong be continuing, by a suit in equity for an injunction.

5. PLEADING (§ 34) — PETITION — CONSTRUCTION.

Where confusion or doubt as to the meaning of a petition appears, it should be construed most strongly against the pleader.

6. EASEMENTS (§§ 61, 69) — EJECTMENT (§ 93) — EVIDENCE — INSUFFICIENCY.

In an action to recover the possession of certain premises and an easement and for damages, rents, and profits, evidence held to support a finding in favor of defendants.

Appeal from Circuit Court, Macon County; Nat. M. Shelton, Judge.

Action by Mary Brier against the State Exchange Bank of Macon. Judgment for defendant, and plaintiff appeals. Affirmed.

R. S. Matthews & Son, for appellant. Dysart & Mitchell and Guthrie & Franklin, for respondent.

BURGESS, J.

Plaintiff sues for the restitution to her of certain premises and an easement, claimed to be wrongfully and unlawfully withheld from her by the defendant, and for damages in the sum of $1,000, and rents and profits.

The petition states, in substance: That prior to January 1, 1897, and on and subsequent to the 11th day of May, 1877, Frank Weiden was the owner in fee of the east 20 feet of lot 6, block 64, in the city of Macon, Macon county, Mo., and that Sophia Baum was the owner in fee of the west 26 feet of said lot. That on the said property of Frank Weiden there was, and still is, erected a two-story brick store building, and that on the 11th day of May, 1877, the west 26 feet of said lot, owned by Sophia Baum, was vacant and unoccupied. That on said date Frank Weiden and Sophia Baum entered into the following deed and contract of easement, to wit: "This agreement made and entered into the 11th day of May, A. D. 1877, at Macon, Missouri, by and between Frank Weiden, of the first part, and Sophia Baum, all of Macon, Missouri, witnesseth: That the party of the first part, for and in consideration of the agreement hereinafter mentioned, hereby grants, bargains, and sells to the party of the second part the privilege of using the west wall of her two-story brick building on Vine street, situated on the east twenty (20) feet of lot six (6), block sixty-four (64), it being understood that the privilege of using said wall is for the purpose of joining on to said west wall in the construction of a building upon the vacant lot now owned by said second party, in both the first and second stories, and the entire length of said wall, from north to south; and, furthermore, said first party further grants and conveys to said second party the right and privilege of extending her said wall, when she or her heirs or assigns shall build on a line to the south, and in continuation of said west wall, so as to make the same continue said wall, the same being on the ground owned by the said first party, and on the line of said twenty (20) feet of said lot six (6), block sixty-four (64). In consideration of the foregoing the party of the second part hereby grants, bargains, and sells to the first party the right and privilege of a stairway, not to exceed three feet in width, next to and west of said west wall, both parties to pay equally the expense of constructing said stairway when second party shall build and construct a building on the lot now vacant, known as twenty-six (26) feet of the west part of lot six (6), block sixty-four (64), and previous to the construction of the building on said vacant lot said first party is to have the right and privilege of building a temporary stairway for his own use and benefit and at his own expense." That said contract was duly acknowledged, and recorded in the office of the recorder of deeds for Macon county, and that, by reason and in consequence of said contract, said Frank Weiden acquired an easement and use and interest in the three feet of land and property next to, and west of, and adjoining, his said property for his use as a stairway, and the said Sophia Baum acquired the right to use the west wall of said building on the property of said Weiden.

The petition further states that afterwards, and prior to January 1, 1896, there was a building erected on the 26 feet of said lot 6, owned by Sophia Baum, and that a stairway was erected in conformity to said contract, and that the same was used and enjoyed as a partnership stairway until or about the 1st day of December, 1905; that on the 1st day of January, 1896, said Frank Weiden died, owning in fee simple at the time of his death the said east 20 feet of said lot 6, and the easement aforesaid; and that by his last will and testament, duly admitted to probate in the probate court of Macon county, Mary Brier, the plaintiff, was the residuary legatee, and inherited said property, and at all times since and now is the owner of said property.

After averring that the defendant is a banking corporation, incorporated under the laws of the state of Missouri, and that it is the owner of the west 26 feet of said lot 6, subject to the aforesaid easement, and that it derived its title under and through said Sophia Baum, the petition continues: "That on or about the 1st day of December, 1905, the said defendant wrongfully, with notice from plaintiff, and without authority, consent, or approval, and against plaintiff's desire and protest, erected a large stone pillar at the bottom of and in front of the opening of the stairway aforesaid, and on the ground described in plaintiff's easement, next to and adjoining the street, ignoring plaintiff's rights of property, entirely blocking the said three feet and stairway aforesaid, and defeating the rights of plaintiff under the aforesaid contract, agreement, and easement for a stairway, and for plaintiff to get in the second story of her said building she is compelled to go over and upon property not belonging to her, and on and over property of other persons, and since on or about December 1, 1905, and at all times since, and now, the defendant maintains the said obstruction, to her detriment, injury, and damage, and is now alone occupying her premises with said stone pillar, and depriving her of the enjoyment and rights given her for a valuable consideration under the contract as aforesaid, and at and about the same time, to wit, December 1, 1905, the said defendant raised the floor at the top of the said stairway about one foot more, causing egress and ingress into her said rooms in the second story of said building very difficult, and making it dangerous and creating a nuisance, and which defendant had no legal right to do, but did the same wrongfully, with notice of protest, and against plaintiff's wish and desire, to her injury, damage, and detriment, and depriving her of her rights under her said contract and easement. Plaintiff further states that defendant, under said contract, and as a consideration for the rights of a stairway as set out in said contract, is using her west wall, and has been at all times since it and those under...