Hoelscher v. Simmerock

• Decision Date: 14 May 1996
• Docket Number: No. WD,WD
• Citation: Hoelscher v. Simmerock, 921 S.W.2d 676 (Mo. App. 1996)
• Parties: Dorothy Etta HOELSCHER, Jeffrey A. Hoelscher, Linda Hoelscher and Nina Nordwald, Appellants, v. Dean R. SIMMEROCK and Doris M. Simmerock, Respondents. 50903.
• Court: Missouri Court of Appeals

Page 676

921 S.W.2d 676

Dorothy Etta HOELSCHER, Jeffrey A. Hoelscher, Linda Hoelscher and Nina Nordwald, Appellants, v. Dean R. SIMMEROCK and Doris M. Simmerock, Respondents.

No. WD 50903.

Missouri Court of Appeals Western District.

May 14, 1996.

Robert C. Jones, Alan L. Farkas, Jones, Korum, Waltrip & Jones, Clayton, for appellants.

Kenneth O. McCutcheon, Jr., Woolsey and Yarger, Versailles, for respondents.

Before ULRICH, P.J., and BRECKENRIDGE and EDWIN H. SMITH, JJ.

BRECKENRIDGE, Judge.

Dorothy Etta Hoelscher, Jeffrey A. Hoelscher, Linda Hoelscher and Nina Nordwald (the "Hoelschers") appeal from the trial court's judgment which found Dean R. Simmerock and Doris M. Simmerock entitled to an easement across the property of the Hoelschers. The Hoelschers contend that the trial court erred by failing to declare the easement void as a matter of law, because the deed purporting to grant the easement was ambiguous as to its purpose and location. The judgment of the trial court is affirmed.

In reviewing the judgment of a court-tried case, this court views the evidence and permissible inferences drawn therefrom in a light most favorable to the judgment. Homan v. Hutchison, 817 S.W.2d 944, 947 (Mo.App.1991). The judgment of the court will be affirmed unless it is against the weight of the evidence, there is insufficient evidence to support it, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Prior to November 19, 1988, Gary L. Blecke and Patricia K. Blecke owned Lots 62 and 63 of a subdivision located near the Lake of the Ozarks in Morgan County, Missouri. Lot 62 is on the "lake tier," with a lake-frontage of approximately fifty feet. Lot 63 is on the "second tier," above and behind Lot 62, without direct access to the lake. On November 19, 1988, the Bleckes sold part of Lot 63 to Dean Simmerock, a single person, and Doris Hayes, a single person. The deed granted them three easements, the third of which is the basis for this appeal. The first easement was an easement "of ingress and egress and for the parking of motored vehicles." The second easement granted the Simmerocks access to the Lake of the Ozarks and was described as follows From the Eastern most corner of said Lot 63, said point being common to the Southern most corner of Lot 64 in said subdivision, thence North 20? 22' West along the Easterly line of said Lot 63, a distance of 307.39 feet, thence leaving said Easterly line and run South 62? 22' West 74.78 feet, thence North 11? 37' West 61.33 feet, thence South 80? 48' West 28.57 feet for the point of beginning of said easement herein described, thence continue South 80? 48' West 10.67 feet to the Westerly line of said Lot 63, thence along said Westerly line North 29? 35' West (Plat-North 28? 28' West) 83.15 feet, more or less, to the variable waters edge of the Lake of the Ozarks, thence along said variable waters edge in an Easterly direction to a point which bears North 30? , 27' West from the point of beginning, thence leaving said waters edge and run South 30? 27' East 82.7 feet, more or less, to the point of beginning.

The Simmerocks use a series of wooden steps over this easement (the "lake access easement") to get to the lake. The deed than granted the Simmerocks a third easement, described as:

an easement along the waters edge extending 15 feet from the waters edge corner of the Lake Access Easement above described to and in front of the waters edge of Lot 62 of Indian Creek Addition Corrected Plat, Minifarms Section 3, a subdivision in Morgan County, Missouri.

The Simmerocks later conveyed the property and easements described above to themselves, as husband and wife. On March 17, 1989, the Bleckes sold part of Lot 62 to the Hoelschers. The deed conveying the property stated that it was "subject to easements and restrictions of record."

On January 14, 1994, the Hoelschers filed a two-count petition against the Simmerocks. The first count sought the trial court's determination of the parties' interest in the property owned by the Hoelschers and asked the court to quiet title by "extinguishing" the third easement. The second count contended that the Simmerocks had trespassed upon the Hoelschers' property by constructing and using a boat dock on it.

At trial, the Simmerocks presented the testimony of Mr. Blecke and Ms. Simmerock to establish the location and purpose of the third easement. Mr. Blecke testified that he intended to give the Simmerocks a ten-foot easement "to get them to the lake" and a fifteen-foot easement "for a boat dock." He intended the third easement to be located in the northeast corner of Lot 62, running fifteen feet along the shoreline. The purpose of this third easement was to give the Simmerocks "room to put a dock in front of this 10 foot down to the lake." Ms. Simmerock testified that she believed the deed gave her "a 10-foot easement going to the lake, then an extension to the left 15 more." She believed the purpose of the third easement was to allow her room for a boat dock.

In 1988, when Mr. Blecke sold part of Lot 63 to the Simmerocks, a dock was already in place in front of the lake access easement. The Simmerocks replaced this dock "about a year afterwards" with one that included a "ramp" attached to the shoreline of the Hoelschers' property. The ramp was not used as a walkway, but as a brace for the second dock. The ramp to the Simmerocks' dock extends approximately eight feet onto the Hoelschers' property and is approximately four feet wide.

The Hoelschers introduced the testimony of Gerard J. Harms, a land surveyor. On September 12, 1994, Mr. Harms conducted a survey of the property owned by the Hoelschers and attempted to locate the third easement. He testified that he was unable to precisely locate it, because he could not locate the easement's point of origin or determine its dimensions.

The trial court entered judgment in favor of the Simmerocks, finding that they were entitled to a fifteen-foot easement across the shoreline of the Hoelschers' property, beginning at the corner of the lake access easement. The court also found in favor of the Simmerocks on count two of the petition. The Hoelschers do not contest the court's ruling as to the second count.

The Hoelschers' sole point on appeal alleges the description of the third easement is "patently ambiguous and uncertain in that the description fails to recite any purpose dimensions, or identifiable point of origin." The Hoelschers contend the court should have declared the third easement void as a matter of law.

An easement entitles its owner to a limited use or enjoyment of the land of...