Contemporary Management, Inc. v. 1007 Olive Partnership

• Decision Date: 11 October 1988
• Docket Number: No. 53551,53551
• Citation: 760 S.W.2d 135
• Parties: CONTEMPORARY MANAGEMENT, INC., et al., Respondents, v. 1007 OLIVE PARTNERSHIP, et al., Appellants.
• Court: Missouri Court of Appeals

Page 135

760 S.W.2d 135

CONTEMPORARY MANAGEMENT, INC., et al., Respondents, v. 1007 OLIVE PARTNERSHIP, et al., Appellants.

No. 53551.

Missouri Court of Appeals,

Eastern District,

Division Five.

Oct. 11, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 16, 1988.

Julius H. Berg, Clayton, for appellants.

Morris J. Levin, S. Sheldon Weinhaus, Mark S. Packer, St. Louis, for respondents.

CARL R. GAERTNER, Judge.

This is an appeal from the judgment entered after a non-jury trial of consolidated law suits between owners and occupants of adjoining properties in downtown St. Louis. On the one side are Contemporary Management Inc., lessee under a fifty year lease of the property known as 1010 Olive Street, and members of the Mandell and Pohrer families, the owners of this property (herein after collectively referred to as plaintiffs). On the other side are members of the Abrams family, d/b/a 1007 Olive Partnership, owners of the property known as 1006-1008 Olive Street (herein after defendants).

In 1904, pursuant to a recorded agreement executed by the predecessors of the parties, a party wall was erected astraddle the entire 107 feet of the boundary line between these two lots. The subsurface foundation of this wall extends twenty-nine inches into each lot. The above surface wall is thirty inches wide at its widest point, fifteen inches into each lot. The wall served as the western wall of the building at 1006-1008 and the eastern wall of 1010 until 1937 when the latter structure was razed. 1010 Olive has since been used as a surface parking lot. Plaintiff Contemporary plans to construct a parking garage on 1010 Olive street and has demanded that defendants remove air-conditioning units air vents and windows protruding through the western wall and extending into the air space above the western foundation. Defendants claim to be the owners of the entire wall including the air space above the western foundation and thus object to Contemporary's planned garage construction insofar as it may encroach upon the western side of the wall and air space above the foundation. Contemporary initially filed an action against the defendants seeking a declaratory judgment that the 1904 party wall agreement was in full force and effect and to permanently enjoin defendants from claiming ownership of the wall to the exclusion of plaintiffs' rights under this agreement. The Abrams family partnership filed an action against Contemporary and others seeking to enjoin the planned construction of the garage, damages and a declaratory judgment that they had acquired ownership of the western half of the wall by virtue of abandonment or adverse possession. The two actions were consolidated and tried to the court without a jury. The trial court found in favor of plaintiffs, declared the 1904 agreement to be in full force and effect and permanently enjoined defendants from interfering with plaintiffs rights and interests in the wall. Defendants appeal. We affirm.

We are indebted to the trial judge for his distillation of the testimony of numerous witnesses and a myriad of documentary evidence into lucid and succinct findings of fact. On appeal defendants do not challenge these factual findings nor do they contend such findings are without evidentiary support. Rather, they seek reversal based upon an argument that the trial court erroneously declared and applied the law. Defendants contend the evidence establishes that they have acquired ownership of the entire wall by adverse possession or by abandonment by the plaintiffs and their predecessors of any claim of right or interest in the wall and, alternatively, that plaintiffs are equitably estopped from interfering with continued use of the wall by defendants and their tenants.

Before addressing each of these contentions it is appropriate to set forth some basic principles of the law relating to party walls. The sharing of a common wall upon the boundary line dividing adjoining properties does not create any form of joint or common ownership by the adjoining land owners. Each retains title to the half of the wall upon his land and gains an easement for support in the half on his neighbor's land. State v. Murray, 630 S.W.2d 577, 581 (Mo. banc 1982). The parties to the 1904 party wall agreement, to whose rights and obligations the present land owners have succeeded, "each became the owner in severalty of his own part of the wall and the land on which it stood, but the title of each was qualified by a cross-easement in favor of the other." Reinhardt v. Holmes, 143 Mo.App. 212, 127 S.W. 611, 614 (1910). This easement merely prevents each owner from doing anything on his side of the wall that would impair the support furnished by the wall to the building on the adjacent lot. Fox v. Mission Free School, 120 Mo. 349, 25 S.W. 172, 174 (1894). All that may be abandoned in such a situation is the easement of support, not title to the property itself. 69 C.J.S. Party Walls § 11(a) (1951). This follows from the proposition that an interest in real property may not be abandoned. Powell v. Bowen, 279 Mo. 280, 214 S.W. 142, 144 (Mo. banc 1919). Some authorities hold that even when one of the buildings is destroyed, the easement is not abandoned if the party wall still stands. 69 C.J.S. Party Walls § 11(b) (1951); 59 Am.Jur.2d Party Walls, § 30 (1987).

Consequently, even if the evidence supported defendants' claim of abandonment, a conclusion contrary to the finding of the trial court, the result would not be to confer ownership of the entire wall upon defendants; it would merely prevent plaintiffs from asserting any right to use the wall for support. However, plaintiffs have no such intention. The evidence shows plaintiffs plan to construct a free standing structure contiguous to the western face of the wall and above the extension of the foundation of the wall into its property. Plaintiffs' claim against defendants is not predicated upon interference with the easement of support; it is based on allegations of continuing encroachment of air vents and air-conditioners into its side of the wall thus interfering with the full use of its own property. Defendants' claim based upon alleged abandonment is without merit.

We also find no merit in defendants' claim of ownership in the entire wall by adverse possession. To maintain an adverse possession claim, a party has the burden of proving all five elements: (1) Hostile possession under a claim of right; (2) Actual possession; (3) Open and notorious possession; (4) Exclusive possession; and (5) Continuous possession for a 10 year period. Wilton Boat Club v. Hazell, 502 S.W.2d 273, 276 (Mo.1973); Rector v. Missouri Dept. of Natural Resources, 685 S.W.2d 225, 227 (Mo.App.1984). The trial court found that defendants failed to meet this burden; specifically, defendants did not prove the elements of actual, hostile, or exclusive possession.

Actual possession requires that the claimant show his ability to control the land and his intent to exclude others from control. Boeckmann v. Fitzpatrick, 491 S.W.2d 524, 527 (Mo.1973); A. Charles Bussen Trust v. Kertz, 723 S.W.2d 922, 927 (Mo.App.1987). If the conveyance from which claimant acquired title does not attempt to transfer the disputed property, claimant must show physical possession of the entire area at issue. Bussen, 723 S.W.2d at 927-28. The exclusive possession element is not fulfilled if both claimant and title holder jointly use the land. Lohrmann v. Carter, 657 S.W.2d 372, 377 (Mo.App.1983). Hostile possession requires that claimant occupy the land with the intent to possess it as his own and not recognize a superior claim of ownership. Heide v. Sheeks, 682 S.W.2d 877, 878 (Mo.App.1984). Consequently, permissive possession will not support a claim of adverse possession. Oberg v....