Di Pasco v. Prosser

• Decision Date: 13 December 1954
• Docket Number: No. 44106,No. 2,44106,2
• Citation: 364 Mo. 1193,274 S.W.2d 279
• Parties: Domenick DI PASCO, Gertrude Nissen, Theodore P. Leontsinis and Olga Leontsinis, his wife, Alfino Dipasco and Adelina Dipasco, his wife, Joe Rossomanno and Aladino DiSalvo, and Nick C. Stabile and Norma M. Stabile, his wife, Respondents, v. Olan W. PROSSER and Mildred M. Prosser, his wife, Appellants
• Court: Missouri Supreme Court

Page 279

274 S.W.2d 279

364 Mo. 1193

Domenick DI PASCO, Gertrude Nissen, Theodore P. Leontsinis and Olga Leontsinis, his wife, Alfino Dipasco and Adelina Dipasco, his wife, Joe Rossomanno and Aladino DiSalvo, and Nick C. Stabile and Norma M. Stabile, his wife, Respondents, v. Olan W. PROSSER and Mildred M. Prosser, his wife, Appellants.

No. 44106.

Supreme Court of Missouri, Division No. 2.

Dec. 13, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

and Motion for Rehearing or to Remand Cause Denied

Jan. 10, 1955.

Tenney & Dahman, St. Louis, Robert L. Smith, Clayton, for appellants.

Shifrin, Shifrin & Agatstein, St. Louis, for respondents.

BOHLING, Commissioner.

In this suit, filed June 25, 1952, the owners of five city lots near the western boundary of the city of St. Louis seek to have adjudged and decreed a private right of way easement over defendants' land; the right, title and interest of the parties in said land; and to enjoin defendants from interfering with plaintiffs' user of said right of way. The court adjudged defendants to be the owners of said land, subject, however, to a right of way easement in plaintiffs, appurtenant to their respective lots, of 30 feet, more or less, in width, and 204 feet, more or less, in length over defendants' land, immediately south of said lots of plaintiffs, and enjoined defendants' threatened obstruction of said easement. Defendants have appealed.

Plaintiffs claim an easement immediately south of and appurtenant to their several lots of a way to and from the street to the west. The lots are bounded by Clayton avenue on the north and San Jacinto avenue, a 25-foot street, on the west, and are approximately 143 feet west of Louisville avenue, the street to the east. San Jacinto avenue was known and referred to by the witnesses as Wise avenue. We so designate it herein.

The plaintiffs hold under warranty deeds. Plaintiffs Nick C. and Norma M. Stabile, husband and wife, acquired title to 6534-36 Clayton avenue September 5, 1947. Plaintiff Domenick Dipasco acquired title to 6530-32 Clayton avenue August 27, 1935. Michele DiSalvo and Concettina DiSalvo, husband and wife, and plaintiffs Alfino and Adelina DiPasco, husband and wife, acquired title to 6526-28 Clayton avenue October 18, 1929. Plaintiffs Aladino DiSalvo and Joe Rossomanno are the son and son-in-law, respectively, of the DiSalvos and, we understand, acquired their interest in 6526-28 Clayton avenue in October, 1951. Plaintiff Gertrude Nissen acquired title to 6520-22 Clayton avenue June 16, 1947. Plaintiffs Theodore P. and Olga Leontsinis, husband and wife, acquired title to 6516-18 Clayton avenue October 3, 1941. These lots front north on Clayton avenue, extend southwardly 125 feet and, for practical purposes here, are 42 feet in width. The lot owned by Mr. and Mrs. Stabile, 6534-36 Clayton avenue, abuts on Wise avenue and the other lots lie successively to the east.

Olan W. and Mildred M. Prosser, husband and wife, defendants, purchased the land immediately south of plaintiffs' lots; the main body of defendants' land being roughly 219 feet east and west by 65 to 85 feet north and south, with, on the north, a strip extending eastwardly. It formed the northern boundary of a larger tract of open, unfenced, vacant, idle and dormant land on which grass, weeds and sunflowers grew, some attaining a height of 12 to 14 feet. About 1949 improvements were commenced on the land just south of defendants' land by the construction of a number of duplexes. Defendants lived in one of the duplexes. They received a quitclaim deed to their land on September 12, 1951.

The Glick Real Estate Company became the owner of plaintiffs' lots and defendants' land (and additional land) on August 18, 1925, taking title in the name of their straw, Etta Marcus, under a warranty deed. The Glick Real Estate Company constructed 4-family flats on each of the five lots, as well as on other lots, in 1926. Each lot has a 4-car garage, except 6530-32 Clayton avenue, where there never has been a garage.

Felix E. Bonzon testified that his mother purchased 6520-22 Clayton avenue from the Glick Real Estate Company in 1926; that prior to the completion of the 4-family flat the Glick people asked his mother if she wanted a garage on the property and she agreed; that the Glick Real Estate Company constructed a 4-car garage as original equipment on the lot, and she paid an additional $1,000 for the garage; and that the garages at 6526-28 and 6534-36 Clayton were also constructed in connection with the construction of the 4-family flats on said lots. There was other corroborating evidence to like effect. The garage at 6516-18 Clayton was constructed sometime between 1939 and 1941. Each garage is a 4-car garage of brick construction on three sides and frame construction on the south or rear side. Each garage has its south wall on the south lot line. The double doors of the stalls open to the south and when open extend beyond the property line of the respective lots. The concrete floor level of the garage at 6520-22 is 18 to 20 inches below the ground level to the north, and a somewhat similar condition may prevail in connection with the garages at 6526-28 and 6534-36.

It appears that no predecessor in title of any plaintiff moved onto his property at the time of purchase and continued the uninterrupted user of the drive for a period of ten years, and whether the Glick Real Estate Company rented any of the 4-family flats to tenants prior to a sale is not disclosed of record. For instance and illustrative: The DiPascos and DiSalvos, who purchased in 1929, moved onto 6526-28 Clayton avenue in 1933 or 1934. Albert W. Berglund, one of their tenants, has resided there since 1931. He purchased an automobile in 1939 and used a stall in the garage until Alfino DiPasco's son Domenick (who purchased 6530-32 where there is no garage) purchased an automobile in 1947 and rented the stall, when Berglund rented a stall at 6520-22. Aladino DiSalvo purchased an automobile in 1943 and has since used one of the stalls at 6526-28. The mother of Felix E. Bonzon, who purchased 6520-22 Clayton in 1926, also rented the flats but moved into one of them in 1928 or 1929. Felix purchased the property from his mother in 1939 and moved into one of the flats. He had an automobile and he, for seven or eight years, and his tenants used the stalls in the garage and driveway until 1947, when he sold the property. Gertrude Nissen, who had, we understand, no automobile, purchased the property and moved into one of the flats, renting three of the stlls in the garage to her tenants.

There is no evidence of record of any written leases and it is presumed that the tenants occupied the flats on a month to month basis. The testimony is that tenants of the 4-family flats who had automobiles originated the driving over the strip of ground immediately south of the garages in going to and from Wise avenue by 1929 and prior thereto. They, the tenants, would throw ashes from the furnaces and leftover gravel from a little concrete work done at one time or another on the strip to improve it. The driveway extended eastwardly from Wise avenue to the garage at 6516-18 Clayton avenue. It did not extend through to Louisville avenue on the east. The strip was used by others: Employees of the electric, the telephone, and the gas companies, the ash man, truckers, and pedestrians. Children going to and from school used it, and people would walk over and across the land owned by defendants.

South of this strip, empty cans, broken glass, ashes and other rubbish had been thrown on the vacant land purchased by the defendants.

On the issue of an easement by prescription defendants contend (a) that the user of the driveway was by the tenants of the owners and that tenants cannot originate an easement by prescription for their landlord by unauthorized trespasses upon land of a stranger; and (b) that defendants' land was vacant and uninclosed land; that a user by others of such land gives rise to a presumption that the user is permissive, and that such presumption of permissive user was not overcome by plaintiffs.

Plaintiffs' position with respect to point (a) above is that, irrespective of what the law may be in other states, defendants' contention is not the law of Missouri; and with respect to point (b) above plaintiffs' position is that, while the use of unimproved land by one other than the owner is ordinarily presumed to be permissive, such presumption may be overcome by one who claims adverse possession, and the owner must then establish that the use was permissive; and that in the instant case such presumption has been overcome.

The following cases are to the effect tenants cannot originate by prescription an easement appurtenant to the land of their landlord by unauthorized trespasses upon the lands of a stranger. Abatiell v. Morse, 115 Vt. 254, 56 A.2d 464, 466[2-5], citing Schofield v. Harrison Land & Mining Co., Mo., 187 S.W. 61, 64; Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775, 780[6-10], reviewing authorities and here referred to; Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183, 1186; Perley v. Hilton, 55 N.H. 444, 447; Capps v. Merrifield, 227 Mich. 194, 198 N.W. 918; Coggins v. Shilling, 30 N.J.Super. 26, 103 A.2d 171, 173; 28 C.J.S. Easements, Sec. 8, p. 643; 1 Thompson, Real Property (1939), 515, Sec. 323; 4 Tiffany, Real Property, 3d Ed., 550, Sec. 1193; 2 Blk.Com. 265.

Plaintiffs say defendants' position has been ruled contra in Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894, 898, and Smith v. Santarelli, Mo.App., 207 S.W.2d 543, 545[2, 3]. We think these cases are distinguishable from plaintiffs' authorities. In the Jacobs case, 190 S.W.2d loc. cit. 895, 899, 900, the then owners of the adjoining improved and occupied lots constructed a joint driveway and a joint garage, each contributing one-half of the expense and space along the lot...