Hoxsey Hotel Co. v. Farm & Home Sav. & Loan Ass'n of Missouri

• Decision Date: 17 June 1942
• Docket Number: 36830
• Parties: Hoxsey Hotel Company v. Farm & Home Savings & Loan Association of Missouri, and Maurice R. Kemp, Appellants
• Court: Missouri Supreme Court

163 S.W.2d 766

349 Mo. 880

Hoxsey Hotel Company v. Farm & Home Savings & Loan Association of Missouri, and Maurice R. Kemp, Appellants

No. 36830

Supreme Court of Missouri

June 17, 1942

Rehearing Denied July 28, 1942.

Appeal from Audrain Circuit Court; Hon. W. C. Hughes Judge.

Reversed and remanded (with directions).

Barnes & Barnes and Ewing, Ewing & Ewing for appellants.

(1) On the severance of two tracts of land there is implied a grant of any easement over the tract retained that is necessary for the full enjoyment of the tract conveyed. Greisinger v Klinhardt, 321 Mo. 186, 9 S.W.2d 978; Bussmeyer v. Jablonsky, 241 Mo. 681, 145 S.W. 772; Peters v. Worth, 164 Mo. 431, 64 S.W. 490; Washburn on Easements and Servitudes (4 Ed.), 107. (2) The reason that sustains the rule of implied grant of other visible easements obtains with equal or greater force in respect of the easement of light and air. 19 C. J., sec. 85, p. 503; R. S. 1929, sec. 13100; Sutphen v. Therkelson, 38 N.J.Eq. 318; Liedtke v. Lipman, 76 A. 463; Ware v. Chew, 43 N.J.Eq. 493, 11 A. 746; Annotations, 56 A. L. R. 1138. (3) Upon the conveyance of property the law implies a grant of all the incidents rightfully belonging to it at the time of the conveyance and which are essential to the full and perfect enjoyment of it. Peters v. Worth, 164 Mo. 431, 64 S.W. 490; Mo. Pac. Ry. Co. v. Maffitt, 94 Mo. 56, 6 S.W. 600; 16 Am. Jur., sec. 290, p. 602; 18 C. J., sec. 272, p. 294; Tiedeman on Real Property, sec. 601, p. 466; Ibid., sec. 842, p. 683. A conveyance of land may include, as an appurtenance or parcel thereof, other land not specifically described in the instrument of conveyance. Mo. Pac. Ry. Co. v. Maffitt, 94 Mo. 56, 6 S.W. 600; Peters v. Worth, 164 Mo. 431, 64 S.W. 490; 18 C. J., sec. 273, p. 295; Ibid., sec. 274, p. 296; 3 Washburn on Real Property (6 Ed.), sec. 2309, p. 379; Tiedeman on Real Property, sec. 842, pp. 683-4. (5) Tenants in common can acquire by adverse possession fee simple title to or easements over land owned by one of the tenants alone. R. S. Mo., 1929, sec. 850; Franklin v. Cunningham, 187 Mo. 184, 86 S.W. 79; Kirton v. Bull, 168 Mo. 622, 68 S.W. 927; Scannell v. Am. Soda Fountain Co., 161 Mo. 606, 61 S.W. 889; Sanford v. Kern, 223 Mo. 616, 122 S.W. 1051; 1 Am. Jur., sec. 51, p. 821; 2 C. J., sec. 204, p. 122; Annotations, 98 A. L. R. 595; 19 C. J., sec. 44, p. 884; Laclede Land & Improvement Co. v. Epright, 265 Mo. 210, 177 S.W. 386. (6) If, due to mutual mistake or mistake on one side and fraud or inequitable conduct on the other, a deed does not effect the real purpose or agreement of the parties thereto, reformation is granted to remedy the injustice. Lauffer v. Smith, 337 Mo. 22, 85 S.W.2d 94; Luker v. Moffett, 327 Mo. 929, 38 S.W.2d 1037; Kidd v. Brewer, 317 Mo. 1047, 297 S.W. 960; Sicher v. Rambousek, 193 Mo. 113, 91 S.W. 68; 53 C. J., sec. 58, p. 938; Ibid., sec. 65, p. 949. (7) The essential elements of a bona fide purchase of land are: (1) the payment of a valuable consideration; (2) good faith and absence of purpose to take an unfair advantage of third persons; and (3) absence of notice, actual or constructive, of outstanding rights of others. 66 C. J., sec. 906, p. 1092; Ibid., sec. 907, p. 1093; Ibid., sec. 952, p. 1122; 17 Am. Jur., sec. 131, p. 1019; Annotations, 41 A. L. R. 1442, l. c. 1445.

Fry & Edwards for respondent.

(1) Appellants have not established any claim to the property in question by way of adverse possession. They have not shown possession for ten years, and have not shown a possession that was open, notorious, continuous and adverse under a claim of ownership. Adkins v. Tomlinson, 121 Mo. 487. They cannot tack their possession on to the possession of their grantors, Gallaher and Streif. Patton v. Smith, 171 Mo. 231; Fiorella v. Jones, 259 S.W. 782. (2) Appellants, Farm and Home and Kemp, are not owners of the title or any easement to the strip of ground in question either by way of an appurtenance or an implied grant. 3 Washburn (4 Ed.), 394; Cooper v. Maupin, 6 Mo. 624; Bussmeyer v. Jablonsky, 241 Mo. 681; Baumhoff v. Lochhaas, 253 S.W. 762; 9 R. C. L., p. 758, sec. 23; 17 Am. Jur., p. 948, sec. 34; Mahnken v. Gillespie, 43 S.W.2d 797. (3) Appellants, Farm and Home and Kemp cannot have deed from Gallaher & Streif reformed on account of mutual mistake or for any other reason. There was no mutual mistake. The land here involved is in the hands of an innocent purchaser, and the question of reformation as between appellants and Gallaher is not in the case. Feiler v. Gholson, 71 S.W.2d 727; Cities Service Oil Co. v. Berenice Holding Co., 90 S.W.2d 131; General Refractories Co. v. Sebek, 44 S.W.2d 60; Employers Indemnity Corp. v. Garrett, 38 S.W.2d 1049. (4) The great weight of authority in the United States is that a grant of the right to light and air over the land reserved will not be implied or presumed. No modification of the general rule has been adopted in Missouri. 1 C. J., p. 1227; 1 Amer. Jur., 534; 56 A. L. R. 1133 and Annotations.

OPINION

PER CURIAM

This action involves a strip of land fronting 10 feet on Jefferson Street in the City of Mexico, Missouri, and extending eastwardly 136 feet along the south wall of the building known as the Alamo Hotel. The plaintiff brought suit to quiet title against the appellants, the Farm & Home Savings & Loan Association of Missouri (hereafter referred to as the Association), and Morris R. Kemp, who were, respectively, the beneficiary of a purchase money deed of trust and the owner of the Alamo Hotel. The appellants joined as additional parties, James W. Gallaher and Forest T. Noel, former owners of the 10-foot strip in controversy, and Jayne T. Noel, the wife of Forest T. Noel. The appellants filed a cross bill. The first count claims title to the 10-foot strip by adverse possession. The second count claims easements of passageway, light and air. The third count is ambiguous, but apparently seeks reformation as to the 10-foot strip, and was so treated in the court below and in the briefs of both parties in this court. Each count contains an additional general prayer for further or other relief. The trial court made a geneal finding in favor of the plaintiff and against the appellants, but he also filed a memorandum which discloses the theory on which each count was decided.

About 1917 or 1918, J. W. Gallaher and his brother-in-law, J. E. Streif, owned a rectangular tract at the southeast corner of Liberty and Jefferson streets in the City of Mexico, Missouri. This tract is referred to in the record, for convenience, as Tract 1. In the southwest corner of said tract they built a portion of what is now the Alamo Hotel. While the building was being constructed it developed that the southern wall encroached 2.8 feet on the abutting property to the south, owned by the Chicago & Alton Railroad Company. As a result, Gallaher and Streif acquired title to a 2.8-foot strip to the south, fronting on Jefferson Street, but extending back only 120 feet, that is, lacking 16 feet of reaching the rear or easterly line of the aforesaid Tract 1. This strip is referred to as Tract 2. The building as originally constructed had its south wall flush with the south line of Tract 2 and encroached on the railroad property to the extent of a small concrete light well, covered by an iron grating, which afforded light and air to the basement in the front part of the building. There was a door from the lobby of the hotel opening onto the railroad property from the south side of the building close to Jefferson Street. There were windows all along the south wall. The hotel was enlarged about 1921 by extending the building north to Jefferson Street. It was again enlarged about 1923 or 1924 by extending the south part of the building eastwardly until it came within 6 feet, 10 inches of the rear of Tract 1. This involved another encroachment on the railroad property, since Tract 2, a 2.8-foot strip, was 16 feet short of meeting the extension of the east line of Tract 1.

On February 28, 1924, about the time this addition was built along the south line of the property to the east, Gallaher individually acquired a strip of land from the railroad company which fronted 10 feet on Jefferson Street and included the 10-foot strip in controversy, but had a considerably greater depth to the east, and included the 2.8-foot strip upon which the southeast corner of the building encroached. The consideration was $ 1400. The 10X136 feet portion of the strip fronting on Jefferson Street is the strip in controversy and is referred to as Tract 3. It adjoins the southern wall of the Alamo Hotel and extends 6 feet, 10 inches further east. A portion of the land that Gallaher thus acquired from the railroad company included a small strip having east and west dimensions of 16 feet and north and south dimensions of 2.8 feet, referred to as Tract 4. This small tract lies immediately to the east of Tract 2 and immediately to the north of the east 16 feet of Tract 3, the strip in controversy. Tracts 1, 2, 3 and 4 together form a rectangle at the southeast corner of Jefferson and Liberty streets, having north and south dimensions of approximately 127 feet and east and west dimensions of 136 feet.

About 1927 or 1928 the lessee of the Alamo Hotel converted all of the rooms along the south side of the hotel back of the lobby, except the rear storage room, into apartments. Additional doors (making five in all) were cut in the south wall, and the previous inside doors, which had led successively, through these rooms (formerly storage or display rooms), were walled up, with the result that the only access to these apartments and the rear storage room along the south side of the building was by way of Tract 3, the strip in...