Dulce Realty Co. v. Staed Realty Co.
| Decision Date | 13 November 1912 |
| Parties | DULCE REALTY COMPANY v. STAED REALTY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.
Affirmed.
Daniel Dillon for appellant.
(1) Open, notorious, adverse and continuous possession of land for ten years confers title on the person holding such possession. This has been decided so often by this court, and has become so well recognized as a rule of law in this State that a citation of cases is unnecessary. Fugate v Pierce, 49 Mo. 441; Bradley v. West, 60 Mo. 40; Scannell v. Soda Fountain Co., 161 Mo. 618; Franklin v. Cunningham, 187 Mo. 195; Brewing Co. v. Payne, 197 Mo. 422; Adam v. Gossom, 228 Mo. 578; Long v. Coal & I. Co., 233 Mo. 740. On February 11, 1891, the Staeds, on the same day they received a deed for the eighty-four feet fronting on Chestnut street, received, also, from the same grantors, a quitclaim deed to the five-foot strip fronting on Chestnut street and extending south thirty-one feet. This gave them at least color of title to the five-foot strip for the length or depth of thirty-one feet extending southward from Chestnut street. Even without any color of title at all, open, notorious and adverse continuous possession for ten years gives title to the land actually occupied. Cottle v. Sydnor, 10 Mo. 770; St. Louis v. Gorman, 29 Mo. 593; De Graw v. Taylor, 37 Mo. 310; Mather v. Waltz, 107 Mo. 121; Wilkerson v. Eilers, 114 Mo. 253; Goldterman v. Schiermeyer, 111 Mo. 404; Quick v. Rufe, 164 Mo. 412. (2) The period fixed by the Statute of Limitations for the bringing of action for the recovery of real property applies to easements in land in like manner as to the land itself. Jones on Easements, Secs. 866 and 867; Wimer v. Simmons, 27 Ore. 3; Woodruff v. Paddock, 130 N.Y. 618; Galveston v. Williams, 69 Tex. 454; Boyce v. Railroad, 168 Mo. 591; Pittsman v. Boyce, 111 Mo. 392; Power v. Dean, 112 Mo.App. 297; House v. Montgomery, 19 Mo.App. 179; Autenrieth v. Railroad, 36 Mo.App. 254. (3) If some former owner of the land now owned by plaintiff was at one time entitled to an easement, entitling him to the use of the five feet in question as an alley, that easement was abandoned and extinguished long before plaintiff became the owner of the property. Scannell v. Soda Fountain Co., 161 Mo. 620. Twenty years was the period within which actions for the recovery of real property were required to be brought in those jurisdictions, where the court held that an adverse user for twenty years would extinguish an easement. In this State, as this court well knows, the period of limitation for bringing such actions is ten years.
Richard A. Jones for respondent.
(1) (a) The private alley so established, created an easement by express grant for such purposes. Church v. Kellar, 39 Mo.App. 441; Carlin v. Paul, 11 Mo. 32; Moses v. Dock Co., 84 Mo. 244; Parker v. Smith, 17 Mass. 411; Dill v. Board, 10 L. R. A. 276. (b) The creation of such alley gave to adjoining lots two distinct classes of rights; first, its use for purposes of ingress and egress, and, second, for light, air and ventilation. Dill v. Board, 10 L. R. A. 276; Gaus v. Railroad, 113 Mo. 308; Bloom v. Koch, 63 N.J.Eq. 10; Field v. Barling, 24 L. R. A. 406; Arnett v. Johnson, 15 N.J.Eq. 482; DeGeofroy v. Railroad, 179 Mo. 698; Barbour v. Liddy, 49 F. 896. (c) This easement by grant is a property right, as much as the ownership of the soil itself, and one of which the owner can only be deprived by like character of instrument or by such adverse possession for the statutory period, with all the accompanying elements necessary, not only to create title in the fee of the real estate itself, but also adverse as against the exercise of the various rights included in the easement. Nonuser for the statutory or any other length of time does not in any manner affect such easement any more than would nonuser of any other character of real estate. Dill v. Board, 10 L. R. A. 276; Structural Co. v. Distilling Co., 189 Mass. 145; Hofher v. Mede, 226 Ill. 320; Johnson v. Clark, 22 Ky. Law R. 418; Dwire v. Hawley, 79 Conn. 454. (2) (a) Lying at the foundation of the claim of title by limitation is the one all-controlling fact that the possession relied on must be adverse, -- hostile, and continuously so, for ten years. The possession from end to end, in warp and woof, must be hostile and continuously hostile. And this is so because the law presumes every possession as consistent with the true title and ownership. McCune v. Goodwillie, 204 Mo. 306; Heckescher v. Cooper, 203 Mo. 278; Dameron v. Jamison, 143 Mo. 483. (c) Various deeds of conveyance were executed by defendant during the time it claims the alley was held by it by a possession adverse, which conclusively negative any such quality of possession. One of these deeds was executed October 24, 1894, another April 8, 1901 and still another May 6, 1907, some three months prior to the commencement of this proceeding. Also deeds executed to defendant and by its predecessors in title of like character. In all of these deeds, the property of defendant is described as extending on the east to this private alley and indeed in the three first mentioned, the very width of the alley is given. The east bounds of the property, 125 feet east of the east line of Ninth street, the west boundary of the alley, also corresponds with the description of it contained in the deeds by which it was originally established. Mere oral testimony of statements made by a party in possession of real estate is competent to destroy the adverse character of the occupancy; much more is such evidence of value for such purposes when embodied in the solemn act of executing an instrument of conveyance of realty. Indeed, in such case it is conclusive proof of acknowledgment that the holding is not adverse, a disclaimer which may not be denied. Lajoye v. Primm, 3 Mo. 529; Whyte v. St. Louis, 153 Mo. 80; Anthony v. Building Co., 188 Mo. 704; Devoe v. Smeltzer, 86 Iowa 391; Lamb v. Foss, 21 Me. 240; Heard v. Conner, 84 S.W. 605; Whitaker v. Thayer, 38 Tex. Civ. App. 537; Tomlinson v. Lynch, 32 Mo. 160; Milling Co. v. Riley, 133 Mo. 574; Hull v. Railroad, 21 Neb. 371; Baker v. Henderson, 156 Mo. 566. (3) (a) The frame structure over a portion of the alley was unlawfully erected and maintained and so ipso facto constituted a public nuisance. Railroad v. Kirkwood, 159 Mo. 239; Boom Co. v. Dickson, 77 Miss. 587. (b) Being such nuisance no matter how long continued, no prescriptive right could be acquired to maintain it. It was subject to abatement at any time. State ex rel. v. Vandalia, 119 Mo.App. 426; Kissel v. Lewis, 156 Ind. 233; Hynes v. Brewer, 194 Mass. 435; Isham v. Brodericks, 89 Minn. 397. (4) The quitclaim deed from Caroline Ryan, of date February 11, 1891, in which she quitclaimed her interest in "a parcel of land known as a private alley" does not contain anything inconsistent with the easement for alley purposes. This instrument would not constitute even such color of title as against such easement as would cause an occupancy of part to relate to the whole thirty-one feet, the purpose for which defendant claims it was offered in evidence. Crispen v. Hannaven, 50 Mo. 536; Hunter v. Wethington, 205 Mo. 293; Busch v. Houston, 75 Ill. 343.
This is a proceeding in the circuit court of the city of St. Louis to enjoin the construction of a building on an alleged private alley, and to compel the removal of one already constructed.
Pending the suit and before the trial the building in contemplation by the defendant at the beginning of the suit was constructed.
There was a decree for plaintiff requiring the demolition of both structures, and restraining any future obstructions to the alley. Defendant has appealed.
The land in controversy is located in city block 190, bounded north by Chestnut street between Eighth and Ninth streets.
In 1854 the Lucas heirs were the owners of all the property abutting on the alleged alley. In that year they made partition by deeds to each one of them for separate parcels of the land. In all those deeds the land included in the alleged alley in controversy was described as "a space supposed to be five feet wide left by all concerned for an alley."
The plaintiff now owns forty feet fronting on Chestnut street and running south eighty feet six inches to a private alley ten feet wide which runs east to Eighth street. The defendant owns two tracts. One tract was acquired in 1891, and is eighty-four feet fronting on Chestnut street running south thirty-one feet, the east line of it being the west line of the alley. The other tract acquired by defendant in 1894 fronts twenty-six feet two inches on Ninth street and runs east one hundred and twenty-five feet to the alley, the east end of it being south of and adjacent to the other tract of defendant. The relative positions of those tracts with reference to the alley are shown on the following plat:
[SEE ILLUSTRATION IN ORIGINAL]
In that partition the land east of the alley was assigned to Henry S. Turner and wife, and the chain of title thereto down to the plaintiff is as follows: April 28, 1856 Turner and wife conveyed it without mentioning the alley to Henry L. Patterson, who, on May 1, 1856, conveyed to James H. Lucas, describing it as bounded "west by an alley five feet wide." On April 6, 1872, James H. Lucas conveyed it to Robert J. Lucas as trustee for Joseph D. Lucas, describing it as bounded "south by alley and west by Gardiner and others." On November 16, 1875, Robert J. Lucas, as trustee, conveyed it to Joseph D. Lucas by the same description as in the last deed. There is no explanation in the evidence...
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