Henderson v. La Capra

• Decision Date: 04 November 1957
• Docket Number: No. 22626,22626
• Citation: 307 S.W.2d 59
• Parties: William A. HENDERSON and Leona L. Henderson, Appellants, v. Conjetta M. LA CAPRA, Respondent.
• Court: Missouri Court of Appeals

Page 59

307 S.W.2d 59

William A. HENDERSON and Leona L. Henderson, Appellants, v. Conjetta M. LA CAPRA, Respondent.

No. 22626.

Kansas City Court of Appeals, Missouri.

Nov. 4, 1957.

William I. Potter, Kansas City, for appellants.

James Daleo, Kansas City, for respondent.

MAUGHMER, Commissioner.

Plaintiffs (appellants) seek to establish an easement over that portion of a concrete driveway which is located on the property of defendant (respondent). Plaintiffs base their alleged entitlement first, on an easement by implication, and, second, by prescription. After hearing the testimony and weighing the evidence, the trial court denied an injunction and dismissed plaintiffs' petition. In the decree it was specifically found: (1) That the driveway was not a 'way of necessity' as concerns the real property owned by plaintiffs; (2) that the use of the driveway has been since severance of the unity of ownership, controlled and limited by the defendant and her predecessors in title; (3) that the use of said driveway by the plaintiffs and their predecessors in title has been permissive; (4) that under the law and the evidence, plaintiffs are not entitled to an easement over the driveway by prescription, and (5) that they are not entitled to an easement by implication. Plaintiffs' motion for new trial was duly filed, overruled and this appeal perfected.

This court has jurisdiction of the appeal in an action to establish a driveway easement. Title to real estate is not directly but only collaterally involved. Article V, Sections 3 and 13, Constitution of Missouri, 2 V.A.M.S.; Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721; Judge v. Durham, Mo., 274 S.W.2d 247; Andres v. Todd, Mo.App., 296 S.W.2d 139; Deacon v. City of Ladue, Mo.App., 294 S.W.2d 616.

This is an equity case and we cannot avoid the duty and responsibility placed upon us to reach our own conclusions as to the weight and value of the evidence. But, we do this with deference to the findings of the trial judge, who had the advantage of seeing, hearing and observing the witnesses in his presence. McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698; Burnett v. Sladek, Mo.App., 251 S.W.2d 397.

Lots 12 and 13, Block 6, McKinney Heights, an addition to Kansas City, Missouri are located immediately south and east of the intersection of Mersington Avenue and Scarritt Avenue. Each lot in length is 150 feet, north and south. Lot 13 is 60 feet in width, east and west, while Lot 12 lies immediately to the east and is 50 feet wide. Plaintiffs own the south 46 feet of the two lots and an additional 7 feet, 7 inches immediately to the south, which represents one-half of a now vacated alley. Defendant owns the north 104 feet of each lot. On plaintiffs' south tract there is a three story, six apartment building. On the north tract there are two apartment buildings. All three buildings front west on Mersington Avenue. Both the north and south walls of plaintiffs' building are irregular. On the south its distance from the property line, that is, the center of the vacated alley, varies from 6.61 to 8.54 feet. On the north, the variation is from 6.98 to 9.06 feet. Approximately two and a half feet east of the rear of these buildings is the west side of a concrete driveway, approximately 7 feet wide, which is the subject of this controversy. This driveway extends from Scarritt Avenue, runs south across the whole of defendant's tract, nearly across plaintiffs' tract and into some old concrete pavement near the southeast corner of plaintiffs' lot. In their southeast corner plaintiffs, during the year 1951, built a garage which fronts onto this old paving and driveway. While the concrete driveway is only some 7 feet in width, approximately some 17 feet of vacant ground lies just east, and the east line of the driveway is not clearly defined by marks of usage.

In 1955, defendant placed or caused to be placed a heavy chain attached by padlocks to solid posts across this driveway. Plaintiffs assert that their footage to either the south or to the north of their building is not wide enough for a usable roadway that could provide access to the rear of their building, and that the disputed driveway is one of necessity to them. They assert secondarily, that its use as such by the occupants and owners of their building long ago ripened into an easement by prescription which defendant has no right to destroy.

Twenty-two witnesses testified. Eighteen were called by plaintiffs and four by defendant. We shall review that evidence but as concisely as possible.

It appears from the testimony and from the deeds received in evidence that construction of the three apartment buildings was completed in 1917. The Agee-Block Realty and Building Company owned the land, erected the buildings and continued in ownership until December 14, 1926, when it sold to one Albert D. Black. On the same day Mr. Black conveyed the north 104 feet. Since that date there has been no unity of ownership. In none of the deeds is reference made to this driveway. Plaintiffs acquired their title on June 16, 1943. The defendant acquired hers about November 30, 1954.

Young E. Agee, nephew of the builder, testified that late in 1917 or early in 1918, he became a tenant in one of the apartments; that the concrete driveway at the rear of the buildings was then in existence, and that it was used by coal, grocery and general delivery trucks. The witness Beulah H. Davenport said that she and her family resided in one of the apartments for about one year, commencing in the spring of 1922; that the concrete driveway was then in existence, that it was the only way to get into the back of the buildings and was so used. Bessie Lee Blewitt stated that from 1922 to 1931, she lived across Scarritt Avenue north of the apartment buildings; that during all this time the driveway was used by movers and for deliveries. She never saw it closed or barricaded. Fern Bishop has been a tenant of plaintiffs and occupied one of their apartments continuously since 1939. She said the driveway was used in making coal deliveries; that it was used by the milkman, laundryman and garbage collector, and the tenants would drive their automobiles back there for washing and repair purposes. She asserted that its use was never interrupted or restricted until in the fall of 1955, when the chain and padlocks were installed. Her husband Charles W. Bishop, gave substantially the same testimony.

Charlotte Teatz has resided on Scarritt Avenue, just to the east, for 25 years. Her testimony was that the driveway has been there all that time; that it was used by coal, trash and delivery trucks and by automobiles belonging to the tenants. She said that Mr. Thomas (who owned the north tract from 1946 to 1954) at one time placed a removable chain across the driveway, and then in the fall of 1955, defendant put in concrete posts and installed the chain and padlocks.

Homer Anderson at the time of the trial was employed as a janitor by both plaintiffs and defendant. He began such work at these apartments in 1951. He said he had seen trucks and automobiles owned by the tenants use the driveway. Lena Hayden, whose deceased husband was a janitor for plaintiffs from 1946 to 1951, said all of the service vehicles used the driveway. Arthur James was janitor for and lived in the basement of the south apartment from 1935 until December, 1939. He said that service trucks and the tenants used the driveway. He testified he and another janitor kept a removable chain across the north entrance and that such a chain was there when he started working in 1935. Plaintiffs offered additional evidence of similar and cumulative import. The plaintiff Mrs. Henderson, in addition, stated that Mr. Thomas, when he owned the property, put up a removable chain for a time.

The defense called Mr. W. R. and Eva Thomas, husband and wife, who owned defendant's property from February, 1946 to December 1, 1954. Their testimony was that they stopped all general use of the driveway by telling deliverymen and others not to use it. Mr. Thomas stated that he permitted Mr. Henderson to use the driveway when it was necessary to make repairs on his building or to 'haul in something from the back he couldn't get in from the front'.

Defendant Mrs. LaCapra and her son Phillip stated that at all times since Mrs. LaCapra became owner, she had forbade use of the driveway. They said that she first tried to do this by orally instructing people not to use it, and later by placing the chain and padlocks across the entrance.

A surveyor, Loren D. Wallis, was called by plaintiffs. His survey and plat of the premises setting forth exact measurements between key points was received in evidence. These indicated that the paved part of the driveway in dispute varied in width from 7 feet to 6.80 feet. His survey further showed that south of their building plaintiffs had a strip of unused land varying in width from 6.61 feet to 8.54 feet upon which a driveway could be built. On the north his measurements showed a strip 6.98 feet at its narrowest, and 9.06 feet at its widest point.

The architect, Frangkiser, said that while it was possible to build a driveway on either side of plaintiffs' building and it would be usable, still there was not sufficient width to meet usually recognized minimum standards; that all building codes require a minimum of 8 feet. He also said that the grade was uneven and that if a driveway were constructed either north or south of plaintiffs' building, a retaining wall 8 inches wide should be built.

With respect to plaintiffs' claim for an easement by prescription, the legal requirements which must be met in order to be entitled to such right are definite and well established. 'The general rule is well recognized in this state that an easement may be acquired by prescription by use, for the period of 10 years, which is shown to be substantially the same as the adverse possession that will be considered...