Jablonsky v. Wussler

• Decision Date: 02 December 1914
• Docket Number: No. 16977.,16977.
• Citation: 171 S.W. 641
• Parties: JABLONSKY v. WUSSLER et al.
• Court: Missouri Supreme Court

171 S.W. 641

JABLONSKY v. WUSSLER et al.

No. 16977.

Supreme Court of Missouri, Division No. 1.

December 2, 1914.

EASEMENTS (§ 16) — IMPLIED EASEMENT — RIGHT OF WAY.

Where one of two adjacent tracts of land sold by the same owner to different persons touched both a street and an alley, so that there was no reasonable necessity for continuing the use of the alley after the sale for the benefit of the tract touching the street and alley, the purchaser had no implied easement over the alley.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Suit by Charles Jablonsky against Bernard Wussler and others. Decree for complainant, and defendants appeal. Reversed.

The following is the picture referred to in the opinion:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Muench, Walther & Muench, of St. Louis, for appellants. August Walz, Jr., and W. G. Carpenter, both of St. Louis, for respondent.

GRAVES, J.

Action in equity to enforce an implied easement. Such action takes the form of a petition by which it is sought to enjoin the defendants from obstructing the entrance to a three-foot passageway upon the western part of a lot owned by the defendant.

Both the facts and the law of this case were before this court in the case of Bussmeyer v. Jablonsky, 241 Mo. 681, 145 S. W. 772, Ann. Cas. 1913C, 1104. The present plaintiff was the defendant in the Bussmeyer Case. He urged upon us then the doctrine of there being required the element of necessity before there could be an easement by implication of law. He says in the record before us that the facts of the two cases are practically identical. The admission thus reads:

"Mr. Carpenter: If your honor please, I may concede right now that, so far as any easement is concerned by prescription, we don't claim any. We are after an easement upon a different theory from that, and I want to call your honor's attention to this case here. This is a case in the Utah Supreme Court, the case of Rollo v. Nelson, 34 Utah, 16, June 1, 1908 (citing and reading from opinion; also from case from Pennsylvania Supreme Court, Liquidated Carbonating Co. v. Wallace; also case from Oregon Supreme Court). These are all reported in the 26 L. R. A., New Series. One is reported at page 331, another at page 327, and the other case at page 315. All of them were heavily annotated. Here is a line of cases identical with this case [reading extracts from cases]. This is all on the theory that these easements are appurtenant to this use in connection with the property sold. At this point it may be proper to...