Bussmeyer v. Jablonsky

• Decision Date: 29 March 1912
• Citation: 145 S.W. 772,241 Mo. 681
• Parties: AUGUST BUSSMEYER v. CHARLES JABLONSKY, Appellant
• Court: Missouri Supreme Court

145 S.W. 772

241 Mo. 681

AUGUST BUSSMEYER v. CHARLES JABLONSKY, Appellant

Supreme Court of Missouri, First Division

March 29, 1912

Appeal from St. Louis City Circuit Court. -- Hon. Virgil Rule Judge.

Reversed and remanded (with directions).

August W. Waltz, Jr., and W. G. Carpenter for appellant.

(1) Plaintiff's petition does not set forth facts showing that any necessity existed for an easement in the passageway over defendant's property. In Missouri and many other States there must be, if not a "strict necessity" to support the easement, at least a "reasonable necessity." Barrett v. Bell, 82 Mo. 110; Mulrooney v. Obear, 171 Mo. 613; Vossen v Dantel, 116 Mo. 379; Peters v. Worth, 164 Mo 431; Tiedeman on Real Property (3 Ed.), sec. 432. (2) Three elements are essential to create an easement by severance: (a) A separation of the title; (b) So long continued in use and so obvious in construction as to show permanency; (c) must be necessary to the beneficial enjoyment of the land granted. Long continued, obvious and permanent use. Reiners v. Young, 109 N.Y. 648; Kelly v. Dunning, 43 N.J.Eq. 62; Jobling v. Tuttle, 75 Kan. 351; Ice Co. v. La Plant, 136 Iowa 621. Must be necessary. Whiting v. Gaylord, 66 Conn. 337; Mosher v. Hibbs, 24 Ohio (C. C.) 375; Goodall v. Godfrey, 53 Vt. 219; Seidel v. Bloeser, 77 Mo.App. 180; Mulrooney v. Obear, 171 Mo. 619; Barrett v. Bell, 82 Mo. 113; Brakely v. Sharp, 9 N.J.Eq. 9; Webber v. Miller, 9 Ohio (C. C.) 674; Miller v. Hoeschler, 126 Wis. 263; Buss v. Dyer, 125 Mass. 287; Adams v. Marshall, 138 Mass. 228. (3) The "necessity" must be a real necessity, not a mere convenience. Field v. Mark, 125 Mo. 502; Vossen v. Dantel, 116 Mo. 385; Paine v. Chandler, 134 N.Y. 385; Hyde v. Jamaica, 27 Vt. 460; Valley Falls Co. v. Dolan, 9 R. I. 489; Hall v. Austin, 20 Tex. Civ. App. 63; Ward v. Robertson, 77 Iowa 159; Allen v. Kincaid, 11 Me. 156; Burns v. Gallagher, 62 Md. 462; Washburn on Easements (4 Ed.), p. 107, sec. 3; Jones on Easements, secs. 315, 317; Schmidt v. Quinn, 136 Mass. 575. (4) There is no evidence in this case showing an intention on the part of the common grantor to create a permanent easement of way over defendant's lot in favor of plaintiff's property, but any use of the said passageway was, to say the most, merely permissive.

Julius T. Muench for respondent.

(1) Where the owner of a heritage consisting of several parts has arranged and adapted these so that one derives a benefit or advantage from the other, of a continuous and obvious character, and he sells one part without making mention of such benefits or advantages, there is an implied understanding that they shall nevertheless continue, with respect to the various parts of the property, as before the separation of the title. Martin v. Murray, 221 Ill. 632; 14 Cyc. 166; Lampman v. Milks, 21 N.Y. 505; Overdeer v. Updegraff, 69 Pa. St. 110; Kieffer v. Imhoff, 26 Pa. St. 438; Huttemeier v. Albro, 18 N.Y. 48; Ins. Co. v. Patterson, 103 Ind. 582; Durel v. Boisblanc, 1 La. Ann. 407; Wrightsell v. Hale, 90 Tenn. 556; Goodall v. Godfrey, 53 Va. 219; Toothe v. Bryce, 50 N.J.Eq. 589; Goddard on Easements (Bennett's Am. Ed.), 119; Jones on Easements, sec. 154; Watts v. Kelson, 6 Ch. App. 166; Powers v. Hefferman, 233 Ill. 597; Hawkins v. Hendricks, 247 Ill. 521; Washburn on Easements and Servitudes (4 Ed.), 105; Gayette v. Bothune, 14 Mass. 49; Hall v. Morton, 125 Mo.App. 323. (2) The best considered cases hold that the easement need not be necessary, but merely convenient to the enjoyment of the dominant estate. See cases cited supra. (3) Authorities requiring the element of necessity in an easement by grant, nevertheless hold that a right of way by implication may attach to a part of the property, even where the way is not strictly one of necessity, provided it is reasonably necessary to the convenient enjoyment of the dominant part of the property. References as supra. Jones on Easements, secs. 145, 147, 154, 157.

OPINION

GRAVES, P. J.

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 number 1744 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 1744; 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 number 1744 of the city of St. Louis, Missouri, being lots number 8, 9, 10, 11 and 12 in said block, together with a certain two-story brick building known as numbers 2518 and 2520, 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 number 1744 of said city of St. Louis, having an aggregate frontage of seventy-nine (79') feet, six and one-half (6 1/2") 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 numbers 2510, 2512, 2514 and 2516 Salisbury street. Bounded north by Salisbury street, south by alley, east by lot number 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 number 8, belonging to plaintiff, was a two-story brick building and there was likewise a two-story building on lot number 7, belonging to defendant. Lot number 8 lies to the west of lot number 7. Plaintiff by his petition avers:

"That the said land of the defendant and the said lot number 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 2518 and 2520, Salisbury street. That between plaintiff's said building number 2518, Salisbury street and defendant's building number 2516, situated upon part of lot number 7, is a hallway four feet in width, the second story of said building number 2516, Salisbury street extending over and covering the said hallway, the joists of said building resting in the east wall of plaintiff's said building number 2518, Salisbury street. That for more than thirty 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 number 2518, 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 numbers 2516 and 2518, Salisbury street, were divided by a fence upon a line which was a prolongation of the western wall of said building number 2516, Salisbury street and the eastern line of said hallway, the said hallway and yard immediately back thereof being thus for more than thirty years before plaintiff acquired said property used in connection with the said building number 2518 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 number 2518, 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 number 7 now owned by defendant, to the extent that the same is occupied by said hallway, a servitude in favor of the said lot number 8 and the building thereon owned by plaintiff for the use of said hallway as an entrance to said lot number 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 numbers 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...