Hermann v. Lynnbrook Land Co.

• Citation: 806 S.W.2d 128
• Decision Date: 26 March 1991
• Docket Number: No. 57630,57630
• Parties: Suzanne HERMANN, T. Pat Manning, Audrey Manning, Donald Rosenfeld and Lynne Rosenfeld, Plaintiffs-Respondents, v. LYNNBROOK LAND COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 128

806 S.W.2d 128

Suzanne HERMANN, T. Pat Manning, Audrey Manning, Donald Rosenfeld and Lynne Rosenfeld, Plaintiffs-Respondents, v. LYNNBROOK LAND COMPANY, Defendant-Appellant.

No. 57630.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 26, 1991.

Louis F. Bonacorsi, Ketrina G. Bakewell, St. Louis, for defendant-appellant.

Paul F. Niedner, Maryella Kelly, St. Charles, for plaintiffs-respondents.

STEPHAN, Judge.

This is an appeal from a judgment of the circuit court of St. Charles County which granted plaintiffs' prayer for injunctive relief and damages, and denied defendant's counterclaim. Plaintiffs, Suzanne Hermann, T. Pat Manning, Audrey Manning, Donald Rosenfeld and Lynn Rosenfeld, requested injunctive relief because defendant, Lynnbrook Land Company, improperly maintained a subdivision sign on real estate owned by plaintiffs. Defendant's counterclaim asserted that it was entitled to maintain the sign by reason of an irrevocable license giving rise to an equitable easement, or else by a prescriptive easement. The trial court, sitting without a jury, determined that defendant did keep and maintain a sign and did use and appropriate plaintiffs' land without authority, license or permission of the plaintiffs from May 28, 1986 to October 15, 1988. Plaintiffs were awarded damages totalling $13,050.00 ($450.00 per month for twenty-nine months). We affirm.

In this court-tried action we will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The facts are in dispute. We, therefore, consider only those evidentiary facts and inferences favorable to the prevailing party. St. Charles County v. McPeak, 730 S.W.2d 611, 612 (Mo.App.1987). The credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part or all of their testimony. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988). We give deference to the trial court's findings of fact but we make an independent evaluation of the conclusions of law the trial court draws from its factual findings. Bradley v. Mullenix, 763 S.W.2d 272, 275 (Mo.App.1988).

The property in question was owned by plaintiff Donald Rosenfeld from 1969 to 1973, at which time he sold the parcel to Ira E. Berry Corporation. In January 1982, Ira E. Berry transferred its title to plaintiffs Hermann and Manning. Later, in June of 1982, Manning transferred a part of his interest back to Rosenfeld.

Lynnbrook Subdivision is located immediately adjacent to and behind plaintiffs' property, off Old Highway 94 in St. Charles County. In 1973 the subdivision was held by Highland Mortgage Processing Company under a deed of trust from County Bank of St. Louis. County Bank foreclosed on the property in the mid-1970's and eventually transferred title of the subdivision to L.B.D. Corporation, a holding company set up by County Bank. In May 1986, L.B.D. Corporation sold the subdivision to Lynnbrook Land Company.

Rosenfeld testified on behalf of all the plaintiffs. He stated that there was no sign on the property when he repurchased it in 1982. He further testified that an agent of L.B.D. Corporation approached him in 1983 and inquired about permission to erect a sign. That permission was denied. In late 1983 or early 1984 a billboard, advertising a subdivision, was erected on plaintiffs' property. At that time, plaintiffs requested compensation from L.B.D. Corporation or else that the sign be removed.

Defendant argued that the sign was erected earlier than 1983. It maintained that County Bank and Ira E. Berry agreed that County Bank could erect and maintain a sign on the subject property if it would grade and construct a road from Old Highway 94 across Ira E. Berry's property to the Lynnbrook Subdivision. Testimony was presented that the road was built at approximately the same time the sign was erected, in 1977. The agreement between County Bank and Ira E. Berry was apparently reduced to writing, but was not presented at trial.

Defendant also presented evidence indicating that the sign was constructed by sinking two by four pillars into the ground, putting a sign across the timbers and building a planter on the ground around the sign. The cost of constructing the road was approximately $70,000.00. Substantial time and money was spent in maintaining the sign and paying expenses associated with it, such as landscaping and utilities.

In 1986 plaintiffs demanded that the sign be removed or rent paid. Suit was filed on February 4, 1987 against defendant, L.B.D. Corporation and L.B.D.'s officers. L.B.D. Corporation and its officers were subsequently dismissed. Defendant closed on the last lot in Lynnbrook Subdivision and sold its interest in the property in January 1988. The sign came down as a result of the weather in October 1988.

Defendant's first point alleges trial court error because the judgment is not supported by substantial evidence. It argues that it had an irrevocable license and equitable easement to maintain a subdivision sign on plaintiffs' property. The trial court specifically found that the evidence produced at trial did not support a finding that Ira E. Berry gave County Bank a license to maintain a subdivision sign or that any consideration was given for such license. We agree.

A license is merely a privilege to enter certain premises for a stated purpose. State ex rel. State Highway Commission v. Johnson, 592 S.W.2d 854, 858 (Mo.App.1979). It does not vest any title, interest or estate in the licensee and, generally, may be revoked at the will of the licensor. Annin v. Lake Montowese Development Co., 759 S.W.2d 240, 241 (Mo.App.1988). In order to avoid an otherwise harsh working of the law, courts of equity may apply equitable estoppel in situations where the licensee made material expenditure of money or labor to secure the enjoyment of his use. Gibson v. Sharp, 277 S.W.2d 672, 677 (Mo.App.1955). In such cases the relations of the parties may not be severed at...