Geismann v. Trish
| Decision Date | 05 December 1910 |
| Parties | WILLIAM GEISMANN et al., Respondents, v. FREDERICK TRISH et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.
Judgment affirmed.
Chas A. Smith and William McNamee for appellants.
(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. Anthony v. Building Co., 188 Mo. 704. (2) If the subject of the grant cannot be ascertained by its description, the grant becomes void from the necessity of the case. 3 Washburn, sec. 2289; Wofford v. McKinna, 23 Tex. 44; Campbell v. Johnson, 44 Mo. 248; Jennings v. Brigeadine, 44 Mo. 232; Carter v. Holmann, 60 Mo. 498; Mudd v. Dillon, 166 Mo. 120; Martin v. Kitchen, 195 Mo. 477.
Chas. J. Maurer for respondents.
That the prayer for an injunction is the proper remedy in this cause is shown by the following cases: Lakenan v. Railroad, 36 Mo.App. 363; Stillwell v. Railroad, 39 Mo.App. 221; Carlin v. Paul, 11 Mo. 32; Fuhr v. Dean, 26 Mo. 116; Downing v. Dinwiddie, 132 Mo. 92.
This is an action in equity, brought by the plaintiffs in the circuit court of the city of St. Louis, to enjoin and restrain the defendants from obstructing and interfering with the lawful right of plaintiffs to the use of an alley in that city. The trial court rendered judgment in favor of the plaintiffs, and from that judgment the defendants appealed to the Supreme Court. The appeal was allowed to the Supreme Court on the theory that the title to real estate is involved. On motion of the respondents, the Supreme Court transferred the cause to the St. Louis Court of Appeals, and that court, by an order of record, transferred the cause to this court.
There is not much dispute about the facts. In 1888, Frank Humann was the owner of lots 1 and 2 of "Montrose Place," in the city of St. Louis. The said lots were on the south side of Cote Brilliante avenue, having a frontage on said avenue of 125 feet, with a depth southwardly and along the east line of Union avenue 150 feet. Humann conceived the idea that a frontage on Union avenue would be better than on Cote Brilliante, and he re-subdivided the two lots into five, making one of fifty feet north and south on Union avenue and extending east 125 feet, and immediately adjoining Cote Brilliante avenue. The other four lots were twenty-five feet each in width on Union avenue, and extending east parallel with the fifty foot lot. As the lots were thus laid off, they were bounded on the north by Cote Brilliante avenue; on the west by Union avenue, and on the south by a public alley. The lot owned by the appellants is the most southern of the five lots, and has a frontage on Union avenue of twenty-five feet, and abuts its full length on the south, on the public alley before mentioned.
The plaintiff, Geismann, is the owner of the north twenty-five foot lot; the plaintiff, Tieth, of the first lot south of Geismann, and the plaintiffs, John R. Smith and Mary T. Smith, are the owners of the first lot north of the defendants. The evidence shows that some time prior to 1892, Humann erected a house on each of the four twenty-five foot lots, and at the time the houses were erected, he left a strip ten feet wide for a private alley on the east side of the lots, and extending from the public alley north to Cote Brilliante avenue. The property east of the lots in question was fenced on the east side of the private alley, and Humann erected his fence on the west side of the alley, so that the strip of land ten feet in width was left open from the public alley north to Cote Brilliante avenue. The improvements on the property were all constructed with reference to this alley, and it was the only means the plaintiff had of getting coal and other supplies of like nature to their premises.
When Humann deeded the lots, the following reservations were made in the deeds: To the Geismann lot "Ten feet of the said eastern one hundred and twenty-five feet to be reserved as a right of way for the benefit of the adjoining property owners to be used as a private alley." To the fifty foot lot on the north: "The eastern ten feet of the above described property is to be left open for use as entrance and egress of parties acquiring under said Frank Humann." To the Tieth lot: "Ten feet of the eastern portion...
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