Field v. Mark
| Decision Date | 18 December 1894 |
| Citation | 28 S.W. 1004,125 Mo. 502 |
| Parties | Field v. Mark et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. C. W. Sloan, Special Judge.
Reversed.
John S Blackwell and J. D. Shewalter for appellants.
(1) There was no express grant on the right of way. The deed from Samuel Wilson to Caroline Mitchell described the ground by metes and bounds. A grant of land to or bounded by a street or alley, when there is none, where the strip is owned by the grantor, will give a right of way over the strip to the grantee. This we admit to be law. Moses v. Dock Co., 84 Mo. 242; Carlin v. Paul, 11 Mo. 32; O'Linda v. Lothrop, 21 Pick. 292; Toby v Taunton, 119 Mass. 404; Lewis v. Beatie, 105 Mass. 410; Dodge v. Railroad, 43 N.J.Eq. 351. This claim under a grant is effectually disposed of by the production of the deed from Samuel Wilson, claimed by plaintiff as lost. (2) A way by necessity can only arise where land is sold and there is no way of reaching it, except over the land of the grantor. Snyder v. Warford, 11 Mo. 514; Trask v. Patterson, 29 Me. 499; Perman v. Mead, 2 Mass. 203; Wisler v. Hershey, 23 Pa St. 333; Kripp v. Curtis, 71 Cal. 62. (3) But here the land conveyed fronted sixty feet on a public street on one side, and forty feet on another on a public alley. Mere convenience and usefulness will not establish a right of way of necessity. Colville v. Judy, 73 Mo. 651; Cox v. Tipton, 18 Mo.App. 450; Oliver v. Pitman, 98 Mass. 46; Anderson v. Buchanan, 8 Ind. 132; Moses v. Bates, 74 Ala. 376. (4) Nor does the right exist when one can get to his land by going over his own land, no matter how inconvenient it may be; or when the highway can otherwise be reached. McDonald v. Lindall, 3 Rawle, 492; Ogden v. Grove, 38 Pa. St. 487; Francis's Appeal, 96 Pa. St. 200; Parsons v. Phillips, 68 N.Y. 62; Pentland v. Keep, 41 Wis. 490; Gayetty v. Bethune, 14 Mass. 49; Russell v. Jackson, 2 Pick. 574. (5) When lot runs from one street to another and is then divided, no right of way, from one part over the other to street from which it is cut off, exists. Schyniser v. Phelps, 62 How. Pr. 1; Nicholas v. Luce, 24 Pick. 102; Francis's Appeal, 96 Pa. St. 200. (6) Nor was there any right of way by implication arising on severance of the estate. For such a way by implication can only arise when it is a way of necessity. Warren v. Blake, 54 Me. 276; Hall v. McLevel, 2 Met. (Ky.) 198; Carbrey v. Willis, 7 Allen, 364; Outerbridge v. Phelps, 58 How. Pr. 77. (7) To gain a right of way by prescription there must be an adverse user for the period required to bar an action. Bauman v. Boeckeler, 119 Mo. 189; Barnes v. Haynes, 13 Gray, 188; Nicholls v. Wentworth, 100 N.Y. 455; Barbour v. Pierce, 42 Cal. 657; Ferrell v. Ferrell, 57 Tenn. 329; Kuhlman v. Hecht, 77 Ill. 570; Puryear v. Clements, 53 Ga. 233. (8) In the case at bar there is no right of way by prescription for the following reasons: First. Mere use and enjoyment is not sufficient; the user must be adverse. Hall v. McLeod, 2 Metc. (Ky.) 98; Thomas v. England, 71 Cal. 456; Dexter v. Tree, 117 Ill. 532. Second. The use must not be permission or a mere license, for in such case there can be no right of way by prescription. Nelson v. Nelson, 41 Mo.App. 130; Flora v. Carbeau, 38 N.Y. 111; Hill v. Hagerman, 84 Ind. 287. And mere use does not show it is adverse. Zigefoose v. Zigefoose, 69 Iowa 392. Third. To sustain a claim of a right of way by prescription, the user must come strictly within the definition, i. e., a right to pass and repass, and when the claimant shows a use by himself and those under whom he claims, and it is shown that the right of way was used by others, no right of way is established for the obstruction of which he can sue. Brink v. Collier, 56 Mo. 160; Landis v. Hamilton, 77 Mo. 554; House v. Montgomery, 19 Mo.App. 170; Price v. Wilburn, 1 Rich. 58; Day v. Allench, 22 Md. 521; Dodge v. Stacy, 39 Vt. 558. (9) There was a fence along the alley at rear of the lot -- sometimes up, sometimes down -- also part of time from northwest corner shop to fence west. (10) There was a partition fence on west of lot, none dividing ten feet from six feet; and if a right of way exists over ten feet, then it does over sixteen feet.
Wallace & Chiles and William Aull for respondent.
(1) The use of a way by the public for the period of ten years, acquiesced in by the landowner, gives to the public the use of such, as a public highway. Zimmerman v. Snowden, 88 Mo. 218; State v. Walters, 67 Mo. 463; State v. Proctor, 90 Mo. 336; State v. Bradley, 31 Mo.App. 308. In the case at bar the use of both alleys was for twenty years or more, not only with the knowledge and acquiescence, but the permission of the owner of the land, Samuel Wilson. Whether this is a public or private way, respondent has the right to recover. Carlin v. Paul, 11 Mo. 32. (2) Even a license to use can not be revoked by the licensor, if money and labor have been expended by reason of and in consideration of having been given the license; there is an equitable estoppel against the licensor. Mitchell paid high prices for these small parcels of land, and the blacksmith shop and Klug residence were built so as to require the use of these alleys for their enjoyment and proper use. Wilson was present when the shop was being built, and joined in with Mitchell in building the brick privy across the ten foot alley. These acts will give an easement in the alleys. House v. Montgomery, 19 Mo.App. 170, and cases cited. (3) Grant of the land carries the easement, whether described in the deed or not. Stillwill v. Railroad, 39 Mo.App. 221; 6 Lawson's Rights and Remedies, sec. 2775, and notes; Prescott v. Williams, 39 Am. Dec. 688. A grant carries everything necessary to the enjoyment of the thing granted. Washburn v. Salisbury, 152 Mass. 346. (4) Cincinnati v. White's Lessees, 6 Peters (U.S.) 431. Gamble v. St. Louis, 12 Mo. 617; Rose v. St. Charles, 49 Mo. 509; Baker v. St. Charles, 37 Mo. 13; Kaime v. Harty, 73 Mo. 316. If accepted and used by the public, the dedication is complete, precluding the owner and those claiming under him from asserting an ownership inconsistent with such use. Pierce v. Chamberlain, 82 Mo. 618. (5) The facts show, also, that these are ways arising from necessity and not mere convenience, as appellants claim. (6) Respondent is entitled to the enjoyment of this easement in kind, and is not bound to exchange this right for such damages as a jury might give him. Lakenan v. Railroad, 36 Mo.App. 363; Church v. Kellar, 39 Mo.App. 441; McLemore v. McNeley, 56 Mo.App. 557.
Plaintiff, by his action, seeks to have removed certain alleged obstructions from parts of lot 1, block 45, first addition to Lexington, being a strip of five feet in width, extending from Laurel street west about forty feet, and also a strip about ten feet wide, extending from the alley through said block north about sixty feet, claiming that the said strips constitute private ways or alleys, and that the same had been obstructed by the defendants. The allegations of the petition are traversed by the answer, and absolute ownership of the parts of said lot claimed as alleys is alleged to be in the defendants, and, further, that defendants and those under whom they claim title have been in the open, continuous, peaceable and adverse possession as such owners for more than ten years next before the beginning of the suit. These allegations are put in issue by the reply.
Block 45 was divided into regular lots, twenty in number, six being on each side of an alley twenty feet wide, running east and west through the said block, Main street being on the north and Laurel street in the east of the said block, and lot number 1 being the east and north lot in the tier of lots, having the said Main street on the north, Laurel street on the east and the public alley on the south. See plat.
[SEE ILLUSTRATION IN ORIGINAL]
PLAN OF BUILDINGS ON LOTS 1 & 2, BLOCK 45, LEXINGTON, MO.
Samuel Wilson, now deceased, became the owner of lot 1, and also, subsequently, of six feet and three inches off of the east side of lot 2, which gave him a frontage of sixty feet and three inches on Main street, by a hundred and forty feet back of said alley. At this time the entire property was vacant. In 1864 he conveyed to Caroline Mitchell a part of lot one, out of the southeast corner, being twenty feet on Laurel street, running back along the alley forty feet, and in April, 1867, he also conveyed to said Caroline Mitchell another part of lot 1, being forty feet on Laurel street, by forty feet deep, and just north of last place; and in the same month, 1867, he conveyed to Alexander Mitchell, Stephen G. Wentworth and William Morrison (afterward Morrison-Wentworth Bank) a portion of lot 1 out of the northeast corner, being twenty feet on Main street, running back seventy-five feet. This left the title in Samuel Wilson, as will be seen, of a strip five feet wide between Morrison-Wentworth Bank and the last property conveyed to Caroline Mitchell, running back twenty feet and abutting on the ground or parcel next below described. It also left a strip next to the Morrison-Wentworth bank of twenty feet on Main street by sixty feet deep; also, ten feet off of the west side of lot 1 and six feet, three inches off of the...
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