Geismann v. Trish

• Decision Date: 06 February 1912
• Citation: 143 S.W. 876,163 Mo.App. 308
• Parties: WILLIAM GEISMANN et al., Respondents, v. FREDERICK TRISH et al., Appellants
• Court: Missouri Court of Appeals

143 S.W. 876

163 Mo.App. 308

WILLIAM GEISMANN et al., Respondents, v. FREDERICK TRISH et al., Appellants

Court of Appeals of Missouri, St. Louis

February 6, 1912

Appeal from St. Louis City Circuit Court.--Hon. Matt.G. Reynolds Judge.

AFFIRMED.

STATEMENT.--The appeal in this case was prosecuted to the Supreme Court on the theory that the title to real estate was involved.On motion of the respondents, the Supreme Court transferred the case to this court, and it was thereafter transferred by this court to the Springfield Court of Appeals under the provisions of an act of the Legislature approved June 12 1909.[SeeLaws of Missouri 1909, p. 396;see, also, sec 3939, R. S. 1909.]In due time the cause was disposed of by the Springfield Court of Appeals through an opinion prepared by Judge GRAY of that court, as will appear by reference to William Geismann et al. v. Frederick Trish et al.,151 Mo.App. 714, 132 S.W. 298.Subsequently the Supreme Court declared the said legislative act, which purported to authorize the transfer of cases from this court to the Springfield Court, to be unconstitutional.The case was thereafter transferred by the Springfield Court of Appeals to this court, on the theory that the jurisdiction of the appeal continued to reside here and the proceedings had in the Springfield Court with reference thereto were coram non judice.

The case has been argued and submitted here, and upon due consideration, while we agree to the result arrived at by the Springfield Court of Appeals in the opinion above referred to, we prefer to lay our decision upon a different ground.

The suit is one in equity to enjoin the defendants from obstructing and interfering with plaintiffs' right to use a private alley.The trial court rendered judgment for plaintiffs and defendants have appealed.

The facts appear from the evidence to be as follows: Frank Humann was the owner of a parcel of land in the city of St. Louis having a frontage of 150 feet on the eastern line of Union avenue, with a depth eastwardly of 125 feet, and bounded on the north by Cote Brilliante avenue and on the south by a public alley.This he subdivided into five lots fronting on Union avenue, each with a depth of 125 feet.The northern one--that is, the lot bordering on Cote Brilliante avenue--was given a front of fifty feet on Union avenue, the other four each a front of twenty-five feet.Sometime prior to 1892, Humann erected a dwelling-house on each of the four twenty-five-foot lots.At this time there was a fence along the eastern line of the lots, dividing them from the property on the east.This division fence ran parallel with, and was 125 feet eastwardly from, the eastern line of Union avenue.At the time Humann erected the houses on his four lots, he built and located another fence across the four lots parallel with and distant ten feet westwardly from the division fence on the east.At the same time he located and built coal sheds and other outhouses for the four dwellings along the western edge of the ten-foot strip so indicated, and he made gates and openings therein.The ends of the strip were left open and unobstructed.Thus, by his permanent buildings, fences, gates and openings, Humann clearly and unmistakably located, fixed and defined the eastern ten feet of his five lots as an alleyway, open and unobstructed from Cote Brilliante avenue to the public alley on the south of his property.This alleyway was the only means whereby coal and other supplies of like nature could be brought upon the lots from the rear.With the property so built upon, improved, constructed and arranged, Humann, during the years 1893 and 1894, sold and conveyed the five lots, each to a different grantee, selling first the northern, or fifty-foot lot, next the southernmost twenty-five-foot lot, and thereafter the other three twenty-five-foot lots.By his deeds conveying the fifty-foot lot and the northern three twenty-five-foot lots, Humann made it quite clear that the eastern ten feet of each of said lots was reserved for use as an alley, and the deed by which he conveyed the southernmost lot--that is, the twenty-five-foot lot bordering on the public alley--contained this reservation: "Ten feet of said lot being reserved as a right-way."The defendants are the owners of this southernmost lot, and the plaintiffs are the respective owners of the other twenty-five-foot lots.As each one acquired his lot, he found the alleyway, indicated and open as above mentioned.It appears that for some fourteen or fifteen years this strip was recognized and used as an alley by the owners of the four twenty-five-foot lots.(The fifty-foot lot remained vacant.)Each of them had a gate opening out on to it and each used it for getting in coal and carrying away ashes and garbage, and a sewer was laid in it for their use connecting with the sewer in the public alley.During this time, there was no interruption of such use, except that in 1903defendants, vexed by coal wagons injuring their shed, strung a wire across the southern end.This wire, however, according to plaintiffs' evidence, remained up only about ten minutes, when it was knocked down, and stayed down.In 1907, however, defendants built a fence across the southern end of the alley, completely obstructing it and depriving plaintiffs of its use.Hence this suit.

Judgment affirmed.

Chas A. Smith and Wm. McNamee for appellant.

(1) The four essential facts for the plaintiffs to prove in order to sustain their claim to an easement by prescription are First, user for the prescribed period; second, that the user was adverse; third, that it was under a claim of right; and fourth, notice to the owner of the user and of its character and the claim of right.188 Mo. 704.Again plaintiff was not entitled to show under his petition that there was a user for the reason that there was no allegation that the strip was so used and no amendment of the petition to conform to any such fact, if proved, was made by the plaintiffs on this theory of the case.(2) On the other theory of the case, did the eastern ten feet of the Trish lot become subject to this easement by the deed from Humann to Corcoran and through whom this defendant claimed title?We contend it did not.The language...