Connell v. Jersey Realty & Inv. Co.

• Decision Date: 02 May 1944
• Docket Number: 38781
• Parties: Katherine I. Martin Connell, Grace D. Smith, Laura C. Smith, and Clifford B. Smith v. Jersey Realty & Investment Company, Appellant
• Court: Missouri Supreme Court

180 S.W.2d 49

352 Mo. 1122

Katherine I. Martin Connell, Grace D. Smith, Laura C. Smith, and Clifford B. Smith v. Jersey Realty & Investment Company, Appellant

No. 38781

Supreme Court of Missouri

May 2, 1944

Rehearing Denied July 3, 1944.

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Reversed and remanded (with directions).

Gossett Ellis, Dietrich & Tyler and Adams, Adams & Adams for appellant.

(1) Title to real estate being involved, the Supreme Court has jurisdiction of this appeal. Mo. Constitution, Art. VI, Sec 12, as amended in 1884; State v. Elliff, 332 Mo. 211, 58 S.W.2d 281; Proctor v. Proctor, 256 S.W. 110; Davis v. Lea, 293 Mo. 660, 239 S.W. 823. (2) The court committed error in decreeing that respondents and the general public had obtained an easement over the private streets or courts of the appellant Jersey Realty & Investment Company's land, and in enjoining appellant and all other persons connected with it from interfering with the respondents and the general public using said private streets or courts. Anthony v. Building Co., 188 Mo. 704, 87 S.W. 921; Session Acts, 1887, sec. 57, p. 257; 1 Bouvier's Law Dictionary, p. 632; 19 C.J., sec. 74, p. 897; Smith v. City of Sedalia, 152 Mo. 283, 53 S.W. 907; Sec. 8485, R.S. 1939. (3) No easement was acquired in this case because whatever user existed was not adverse in character, and the evidence was not clear and unequivocal. Kelsey v. City of Shrewsbury, 335 Mo. 78, 71 S.W.2d 730; Coberly v. Butler, 63 Mo.App. 556; Anthony v. Building Co., 188 Mo. 704, 87 S.W. 921; Bauman v. Boeckeler, 119 Mo. 189, 24 S.W. 207; 18 C.J., p. 105, sec. 120; Sanford v. Kern, 223 Mo. 616, 122 S.W. 1051; Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d 650; State ex rel. McIntosh v. Haworth, 124 S.W.2d 653; Mulik v. Jorganian, 326 Mo. 106, 37 S.W.2d 963; St. Louis v. Clagg, 233 S.W. 1; Shaw v. St. Louis-S.F. Ry. Co., 9 S.W.2d 835; Hanke v. St. Louis, 272 S.W. 933; Benton v. St. Louis, 217 Mo. 687, 118 S.W. 418. (4) Appellant is not estopped to deny dedication nor to deny as easement where nothing beyond permissive use is shown. Wallach v. Stettina, 28 S.W.2d 389; Gilleland v. Rutt, 63 S.W.2d 199; State ex rel. McIntosh v. Haworth, 124 S.W.2d 653; Bauman v. Boeckeler, 119 Mo. 189, 24 S.W. 207; Secs. 3426, 3427, 3428, R.S. 1939. (5) Since 1887 the law in Missouri has been that a road becomes public when either (a) Establish by an order of the county court, or (b) upon ten years use by the public and the expenditures of public money or labor for that period. Since neither requirement exists here the road is not public. Sec. 8485, R.S. 1939; Lee v. Railroad, 150 Mo.App. 175, 129 S.W. 773; State ex rel. McIntosh v. Haworth, 124 S.W.2d 653; Garbee v. St. Louis-S.F. Ry. Co., 290 S.W. 655; Strong v. Sperling, 200 Mo.App. 66, 205 S.W. 266.

Charles W. Hess, Jr., and Frank H. Terrell for respondents.

(1) The facts clearly show a dedication and a public acceptance thereof. 26 C.J.S. on Dedication, p. 49; Johnson v. Ferguson, 44 S.W.2d 650, 329 Mo. 363; Byam v. Kansas City Pub. Serv. Co., 41 S.W.2d 945; State ex rel. McIntosh v. Haworth, 124 S.W.2d 653; Mulik v. Jorganian, 37 S.W.2d l.c. 964; Richard v. Public Serv. Comm., 239 S.W. 838; Main v. Nash, 245 S.W. 581; St. Louis v. Clagg, 233 S.W. 1; Shaw v. St. Louis-S.F. Ry. Co., 9 S.W.2d 835; Hank v. St. Louis, 272 S.W. 933; Benton v. St. Louis, 217 Mo. 687. (2) The user, which existed under the facts of this case, was admittedly not adverse in character but there is no such requirement in a case involving implied or common law dedication. Kelsey v. City of Shrewsbury, 335 Mo. 78, 71 S.W.2d 730; Coberly v. Butler, 63 Mo.App. 556; Anthony v. Kennard Bldg. Co., 188 Mo. 704, 87 S.W. 921; Byam v. Kansas City Pub. Serv. Co., 41 S.W.2d 945; Sanford v. Kern, 223 Mo. 616. (3) The estoppel contended for by respondents is based upon more than permissive use; it is based upon seventeen years of benefit to the appellant who now seeks to rescind the bargain. (4) Since 1887 statutory establishments of streets are not the exclusive methods. Common law and implied dedications are still recognized. Sec. 8485, R.S. 1939; School District v. Tooloose, 195 S.W. 1023; Borders v. Glenn, 232 S.W. 1062; Borchers v. Brewer, 271 Mo.App. 137, 196 S.W. 10; State ex rel. McIntosh v. Haworth, 124 S.W.2d 653; Bauman v. Boeckler, 119 Mo. 189; Lee v. Railroad, 150 Mo.App. 175; Garbee v. The Frisco Railway, 290 S.W. 655; Strong v. Sperling, 200 Mo.App. 66. (5) On matters of disputed evidence the Supreme Court, even in cases of appeal in equity, defer to the judgment of the trial court who has the better opportunity to observe and weigh the evidence. Zumwalt v. Forbis, 163 S.W.2d 574; Downend v. Kansas City, 156 Mo. 60, 56 S.W. 902.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

PER CURIAM

Plaintiffs, respondents here, sought a declaratory judgment (Secs. 1126 et seq., R.S. 1939, Mo. R.S.A., Secs. 1126 et seq.) that certain land areas claimed by defendant were subject to a public easement by common law dedication. The trial court so declared, enjoined defendant from interfering with the public use of the areas in question, and defendant appealed.

The land lies at the southwest corner of Troost Avenue and 75th Street, Kansas City, and such, with other land, was acquired May 1, 1925, by David M. Proctor. The area acquired by Proctor was some 660 feet square. September 30, 1925, the Westbrook Investment Company was incorporated, capital stock $ 250,000, owned almost entirely by Proctor. On same day Proctor and wife conveyed the area in question and other land to the Westbrook Investment Company. This company constructed on the property a brick business building, called the Westbrook Building, and made other improvements including the construction of two macadam paved roadways, each 35 feet in width, and a 12 1/2 foot concrete sidewalk on the north and east sides of the roadways. The 12 1/2 foot sidewalk areas on the south and west side of the roadways were not paved. These roadways and the sidewalk areas on each side thereof constitute the area which plaintiffs claim was dedicated to the public.

Westbrook Place, laid out by the Westbrook Investment Company, is adjacent to and lies to the west and south of the area involved. We here reproduce, with some modification, a plat from appellant's brief, which shows the involved and adjacent areas. The lotted area lying west of the Smith and Connell tracts is a part of Westbrook Place, the remainder of which is adjacent to and south of 75th Terrace, and extends east to Troost Avenue.

[SEE ILLUSTRATION IN ORIGINAL]

Plaintiff Connell owns the land designated on the plat as the Connell tract, and plaintiffs Smith jointly own the tract designated on the plat as the Smith tract. The areas designated claimed easement on the south and west of the Westbrook Building, together with 12 1/2 feet on each side thereof constitute the disputed area. Defendant owns the Westbrook Building, which occupies an area approximately 125 feet square, and defendant owns the disputed area, if that area is not dedicated to the public as claimed by plaintiffs.

We might say here that Kansas City was made a party defendant, and in its answer, alleged that the area in dispute was never dedicated as a public street; that the City never sought the area for street purposes; had never exercised any dominion or control over it; that the area is not necessary to the City for public streets and is "not located in places conforming to the logical development of a system of streets." The City asked that if the court found that the disputed area had been dedicated as claimed by plaintiff, then to decree that "such strips of land do not constitute public streets of the City", so as to burden the City with responsibility of upkeep. The trial court found, as stated, that the area was subject to the alleged common law dedication, as claimed by plaintiffs, and also found that the area did "not constitute such public streets of the municipality of Kansas City as to which defendant Kansas City is burdened with any responsibility of liability." That was apparently satisfactory, and the City did not appeal.

Westbrook Building was erected and the other improvements made in the fall of 1925; perhaps completed in 1926. The building, since erection, has been occupied by stores, shops, and offices. Senator Proctor testified that "when we began building the Westbrook Building . . . we arranged for a loan", and that the deed of trust to secure the loan "covered only a tract about 125 feet square upon which the building was located", but that in 1928, the first loan was paid off and a new loan obtained, and that the deed of trust securing the new loan "not only included the land (occupied by the building) and the building, but also the 60 foot roadway (claimed easement area) to the south and the 60 foot roadway to the west." January 5, 1927, the Smith tract, the Connell tract, and some lots in Westbrook Place were, by agreement of the owners, zoned for business purposes.

The Westbrook Investment Company had financial troubles; was adjudged a bankrupt December 10, 1930, and its deed of trust of May 1, 1928, on the Westbrook Building, the land occupied by it, the disputed area and other lots, was foreclosed August 17, 1931. The Seventy-Fifth Street Realty & Investment Company was the highest bidder and received the trustee's deed. September 1, 1931, the Seventy-Fifth Street Realty & Investment Company gave a deed of trust on the same property it purchased at the foreclosure, and this deed of trust was foreclosed January 5, 1939. At this second foreclosure, defendant here was the purchaser and received the trustee's deed to the Westbrook Building and the disputed...