Action by August Bussmeyer against Charles Jablonsky. From a judgment for plaintiff, defendant appeals. Reversed and remanded for judgment as directed.
At one time the Connecticut Mutual Life Insurance Company was the owner of all the property discussed and involved in this suit. April 23, 1903, plaintiff acquired from said insurance company property described in the deed thus: "A lot of ground in block No. 1,744 of said city of St. Louis, having a front of one hundred forty (140) feet and five (5) inches on the south side of Salisbury street by a depth of one hundred and twenty-five (125) feet to an alley fifteen (15) feet wide, and known as lots eight (8), nine (9), ten (10), eleven (11) and twelve (12) of Cope's subdivision of said block 1,744; together with the improvements on said lot 8. Subject to a lease to said second party, expiring May 1, 1907."
Plaintiff at the time of the purchase was a tenant of the insurance company under a written lease which contained an option to
purchase. In this lease the lands are described thus: "A lot of ground fronting one hundred and forty feet and five inches (140' 5") on the south line of Salisbury street in block No. 1,744 of the city of St. Louis, Mo., being lots Nos. 8, 9, 10, 11 and 12 in said block, together with a certain two-story brick building known as Nos. 2,518 and 2,520 Salisbury street, situated on said lot number 8."
In August 1907, the defendant acquired by deed from the said insurance company lands thus described: "All of lots number five (5), six (6), and seven (7), of Cope's subdivision, in city block No. 1,744 of said city of St. Louis, having an aggregate frontage of seventy-nine (79') feet, six and one-half (6½") inches on the south line of Salisbury street, by a depth southwardly, between parallel lines, of one hundred and twenty-five (125') feet, more or less, to alley, together with all improvements thereon, known as Nos. 2,510, 2,512, 2,514, and 2,516 Salisbury street. Bounded north by Salisbury street, south by alley, east by lot No. 4 of said subdivision and block and west by property now or formerly, of A. Bussmeyer."
The deeds from the insurance company to each of the parties contained the usual covenants of warranty. All the property fronted north on Salisbury street. The insurance company acquired title by a trustee's deed in November, 1877. On lot No. 8, belonging to plaintiff, was a two-story brick building, and there was likewise a two-story building on lot No. 7 belonging to defendant. Lot No. 8 lies to the west of lot No. 7.
Plaintiff by his petition avers: "That the said land of the defendant and the said lot No. 8 belonging to plaintiff are improved by two-story brick store and dwelling buildings. That the said buildings were erected by the predecessor in title of the said life insurance company, and said buildings are all attached. That the building upon plaintiff's said lot is numbered 2,518 and 2,520 Salisbury street. That between plaintiff's said building No. 2,518 Salisbury street and defendant's building No. 2,516, situated upon part of lot No. 7, is a hallway four feet in width; the second story of said building No. 2,516 Salisbury street extending over and covering the said hallway, and the joists of said building resting in the east wall of plaintiff's said building No. 2,518 Salisbury street. That for more than 30 years before the conveyance of the lots hereinbefore described to plaintiff, the said hallway between said buildings had been by the said Connecticut Mutual Life Insurance Company and its predecessors in title and by their tenants occupying the said building No. 2,518 Salisbury street always used as an entrance to the rear portion of said lot and the second story of said building. That, during all of said time, the rear yards of the said buildings Nos. 2,516 and 2,518 Salisbury street, were divided by a fence upon a line which was a prolongation of the western wall of said building No. 2,516 Salisbury street and the eastern line of said hallway; the said hallway and yard immediately back thereof being thus for more than 30 years before plaintiff acquired said property used in connection with the said building No. 2,518 Salisbury street. That the said hallway is the only means of ingress and egress to and from Salisbury street to the rear part of plaintiff's said lot and the second story of the said building No. 2,518 Salisbury street, except that the same might be reached by passing through the lower story of said building. That the said entrance to said property of plaintiff is and always has been a valuable adjunct and appurtenance to the said property. That by the manner of construction of said buildings and the use thereof by plaintiff's and defendant's predecessors in title, as aforesaid, the said former owners did impose upon the said lot No. 7 now owned by defendant, to the extent that the same is occupied by said hallway, a servitude in favor of the said lot No. 8 and the building thereon owned by plaintiff for the use of said hallway as an entrance to said lot No. 8, as aforesaid, which easement and servitude passed to plaintiff by the conveyance from said Connecticut Mutual Life Insurance Company to him as aforesaid. That said servitude was in effect at the time of the severance of ownership by the conveyance from the said Connecticut Mutual Life Insurance Company to plaintiff, as aforesaid. That the said use of said property was apparent, and defendant, who had occupied the said property now owned by him, as a tenant for some years before he purchased the same, was familiar therewith and acquiesced therein. That when defendant purchased said lots Nos. 5, 6, and 7 from the said Connecticut Mutual Life Insurance Company as hereinbefore alleged, he took the same subject to the said easement and in all things fully recognized the same until on or about the 2d day of July, 1908, when defendant, against the protests of plaintiff, did forcibly remove the said fence and did erect a new fence extending back from the said building and coincident with the western line of said hallway, but did leave an opening or gateway in the said fence immediately next to plaintiff's rear wall, whereby entrance to defendant's yard from said hallway could be had. That defendant, on the 5th day of September, 1908, did, against the protest of plaintiff, close the said opening by nailing boards across the same, whereby entrance to plaintiff's land from said hallway has been completely cut off, and refused, although requested so to do by plaintiff, to remove the said obstruction and allow plaintiff and his tenants the use of said hallway. That defendant threatens to keep the said fence closed and to wholly and forever deprive
plaintiff and his family and tenants from using the said hallway as an entrance as aforesaid."
Prayer was for a mandatory injunction upon defendant to remove said obstruction, and to thereafter restrain defendant from obstructing said passageway, or denying to plaintiff the use thereof.
The answer makes many admissions, and, as it is not long, had better be made a part of the statement. Such answer reads: "Now comes the defendant in the above-entitled cause and for a return to the order to show cause why an injunction should not be granted as prayed for in plaintiff's petition, issued herein on the 8th day of September, 1908, states: (1) Said petition does not state facts sufficient to constitute a cause of action against this defendant. (2) That petition filed herein does not state facts sufficient to entitle plaintiff to the relief prayed for or for any relief in a court of equity. (3) And for a further return to the order to show cause herein the defendant admits that plaintiff is, and at the times in said petition stated was, the owner of the following described real estate, to wit: Lots Nos. 8, 9, 10, 12, of Cope's subdivision of said city block No. 1,744 in said city and state, but denies that the same has a frontage of 140 feet and 5 inches on the south side of Salisbury street, but on the contrary states that it has a frontage of but 139 feet and 10 inches on the south side of said street. Defendant further admits that the property was acquired by purchase from the Connecticut Mutual Life Insurance Company and under deed and duly recorded as set out in plaintiff's petition. Defendant further admits that he is, as set out, the owner of lots Nos. 5, 6, and 7 of said city block No. 1,744 and fronting 79 feet 6½ inches on Salisbury street, having likewise acquired the same from the said common grantor, the Connecticut Mutual Life Insurance Company, under deed and duly recorded as set out in plaintiff's petition. Defendant further admits that the said land of plaintiff and defendant is improved with a two-story attached brick building as set out in plaintiff's petition, but denies that there is a hallway between said buildings of plaintiff and defendant as set out in plaintiff's petition, but on the contrary states that whatever hallway there may be on the said property is a hallway through defendant's building and wholly lying upon defendant's property, and that plaintiff has no interest either by deed or by prescription or by any other...
