Custom Muffler & Shocks v. Gordon Partnership

• Decision Date: 10 August 1999
• Parties: (Mo.App. W.D. 1999) Custom Muffler and Shocks, Inc., a Missouri Corporation, et al., Appellants, v. Gordon Partnership, a Missouri Partnership, et al., Respondents. WD55946 & 55959 0
• Court: Missouri Court of Appeals

3 S.W.3d 811 (Mo.App. W.D. 1999)

Custom Muffler and Shocks, Inc., a Missouri Corporation, et al., Appellants, v. Gordon Partnership, a Missouri Partnership, et al., Respondents.

WD55946 & 55959

08/10/99

Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown, III

Counsel for Appellant: Dale C. Doerhoff and Matthew A. Clement

Counsel for Respondent: Duane E. Schreimann and Christopher P. Rackers

Opinion Summary: Appeal and cross appeal from a judgment granting Custom Muffler and Shocks, Inc. a prescriptive easement and a permanent injunction preventing the Gordon Partnership from maintaining any barrier within twenty feet of the Custom Muffler property.

Division Three holds: The trial court did not err by refusing to recognize a public or private trafficway across a vacant lot owned by the Gordon Partnership.

The trial court did not err by recognizing a prescriptive easement which extended only twenty feet from the property line.

The trial court did not err by recognizing a prescriptive easement despite the fact that, during the prescriptive period, the property in question was in the exclusive possession of a tenant, not the owner.

There was sufficient evidence for the trial court to conclude that the actual area of usage did not begin as a permissive use.

The trial court did not err by overruling the Gordon Partnership's request for a jury trial.

Ulrich and Smart, JJ., concur.

Victor C. Howard, Judge

Custom Muffler and Shocks, Inc. ("Custom Muffler") and Car Parts, Inc. ("Car Parts") brought an action for declaratory judgment, prescriptive easements, and a permanent injunction against Gordon Partnership, Daniel J. Gordon, and Darrel C. Gordon ("the Gordons") to resolve a property dispute. The trial court granted Custom Muffler a prescriptive easement, and all parties now appeal from the judgment.

Affirmed.

The dispute in this case involves a block of commercial real estate in downtown Jefferson City, Missouri. Custom Muffler and the building owned by the Gordons sit side-by-side on Missouri Boulevard between Beck Street and Conrad Street. Behind the two businesses is a vacant lot which spans the block. In 1981, when Custom Muffler purchased the property, the building now owned by the Gordons was occupied by a bowling alley which rented the building from the previous owner. The vacant lot behind both buildings was owned by the owners of the bowling alley property.

Custom Muffler, which occupies the corner of Missouri Boulevard and Conrad Street, has five service bays along Conrad Street, and an additional service bay ("the rear bay") on the side of the building facing the vacant lot. Since the early eighties, Custom Muffler used part of the vacant lot for parking and as space to maneuver vehicles in and out of the rear bay.

Custom Muffler was not alone in utilizing the vacant lot. Car Parts, which was located on the other side of Conrad Street, used the vacant lot to park their employees' cars since approximately 1982. In addition, to avoid the traffic on Missouri Boulevard, Car Parts' delivery drivers would cut through the vacant lot to travel between Conrad and Beck Streets as they delivered parts to customers. This was possible because of gaps in the curb that provided access to the vacant lot from both Conrad and Beck Streets. The delivery drivers followed a roughly straight path through the vacant lot, from the gap in the curb on Conrad Street to the gap in the curb on Beck Street. The owner of Car Parts testified that his delivery trucks used that route twenty to thirty times a day.

There was also evidence that members of the public used this path through the vacant lot. Howard Kunz, the forty-seven-year-old owner of Car Parts, testified that he grew up three blocks away and had observed cars and trucks using the lot as an alley for as long as he could remember. Katherine Simmons, who lived on Conrad Street next to the vacant lot for forty-one years, testified that she had used the lot in this fashion the whole time she had lived there, and had observed other people doing the same "all the time" and at "any time of day." Marcella Haskamp, who lived on Beck Street next to the vacant lot, testified that she, too, used the lot in this fashion, and had observed other people doing so "all day long."

In 1997, the Gordons purchased the bowling alley property, and thus also became owners of the vacant lot. Subsequently, the Gordons erected a chain barrier behind and parallel to the rear of the Custom Muffler building to mark the boundary line of the vacant lot. The chain barrier was thirteen feet from the entrance to the rear bay, which made it impossible to maneuver vehicles in and out of the rear bay. The chain barrier also prevented Custom Muffler from parking vehicles behind its building. In addition, the Gordons erected barriers across the gaps in the curb on Conrad and Beck Streets, making it impossible for vehicles to cut across the vacant lot.

Custom Muffler and Car Parts filed a petition for a preliminary injunction prohibiting the Gordons from maintaining the chains and barricades which restricted Custom Muffler's space behind the rear bay and which prevented Custom Muffler's, Car Parts' and the public's use of the vacant lot. The petition also sought a permanent injunction and a declaration of the rights of the parties and the public to the vacant lot property.

Special Judge Jack O. Edwards granted Custom Muffler's request for a preliminary injunction, and enjoined the Gordons from maintaining any barrier within forty feet of the side of the Custom Muffler building which faced the vacant lot and which contained the rear bay. A trial then ensued on the issues of the permanent injunction and the declaration of the parties' rights. Circuit Judge Thomas J. Brown, III found a prescriptive easement on behalf of Custom Muffler, and permanently enjoined the Gordons from maintaining any barrier within twenty, not forty, feet of the pertinent side of the Custom Muffler building. In so doing, the trial court determined that this amount of space was

the minimum area this Court believes to be necessary to allow Custom Muffler & Shocks, Inc. and their employees and customers, to have access in and out of the back bay of the Custom Muffler building from the nearest public roadway, that being Conrad Street; to be able to drive out of the lane between the Custom Muffler & Shocks Building . . . and around the back of the Custom Muffler building for access to Conrad Street; and to continue the parking and storage usages at the back (north side) of the Custom Muffler & Shocks building that have been in existence for more than ten years and which have ripened into prescriptive rights.The trial court also found that, although there was evidence of vehicular traffic across the path through the vacant lot between the gaps in the curbs, the court did not find the evidence sufficiently clear and convincing to justify recognition of a prescriptive easement there in favor of the public or either of the plaintiffs. All parties appeal from the judgment.

In their appeal, Custom Muffler and Car Parts claim that the trial court erred by failing to hold that a public or private trafficway was established by prescriptive easement across the vacant lot between Conrad and Beck Streets. They contend that there was clear and convincing evidence that the trafficway was used openly, adversely, and continuously for more than ten years.

The trial court did not err by refusing to recognize a private trafficway across the vacant lot. The owner of Car Parts did testify that his vehicles used this route twenty to thirty times a day, but he also stated that he thought the route was a public way. No claim of individual right of easement by prescription may arise under such circumstances. Rosemann v. Adams, 398 S.W.2d 855, 858 (Mo. 1966).

We reach a similar conclusion with respect to the claim of a public trafficway. The law does not favor prescriptive easements, and so the requirements for their establishment must be proven by clear and convincing evidence. Homan v. Hutchison, 817 S.W.2d 944, 947-948 (Mo. App. W.D. 1991). The trial court determined that the plaintiffs failed to meet that burden with respect to the route across the vacant lot. In reviewing a court-tried case to determine whether the court's judgment is grounded upon sufficient evidence, this court must act with caution and will reverse only upon a firm belief that the judgment is wrong. In Interest of S.H., 915 S.W.2d 399, 401 (Mo. App. W.D. 1996). We cannot conclude that the trial court erred by...