Johnson v. Meiers

• Decision Date: 15 January 1946
• Docket Number: 8569.
• Citation: 164 P.2d 1012,118 Mont. 258
• Parties: JOHNSON et al. v. MEIERS et ux.
• Court: Montana Supreme Court

164 P.2d 1012

118 Mont. 258

JOHNSON et al. v. MEIERS et ux.

No. 8569.

Supreme Court of Montana

January 15, 1946

Appeal from District Court, Lake County, Fourth District; C. E Comer, Judge.

Action by Sig Johnson and Maude Johnson, husband and wife, and others against Julius W. Meiers and Lena Meiers, husband and wife, to enjoin defendants from obstructing the use of a hallway in a building parts of which were owned by the various parties, wherein defendants filed a cross-complaint for damages resulting from disamantling and removal of heating system by plaintiffs. From a decree restraining defendants from obstructing the hallway and awarding judgment to defendants for damages, defendants appeal.

Decree affirmed.

F. N. Hamman, of Polson, and George F. Higgins, of Missoula, for appellants.

Lloyd I. Wallace, of Polson, for respondents.

ANGSTMAN Justice.

Plaintiffs brought this action to enjoin the defendants from obstructing the use of a hallway in a certain building in Polson. The facts which gave rise to the controversy as alleged in the complaint are these.

Olaf Karlsgodt, the plaintiffs Johnsons and defendants Meiers were the owners of the east 80 feet of Lot 12, Block 10 of the original townsite of Polson; Olaf Karlsgodt owned the east 40 feet, the Meiers the next 25 feet adjoining to the west, and the Johnsons the next 15 feet to the west, being the west 15 feet of the east 80 feet of the lot.

The other plaintiffs are the heirs at law of Olaf Karlsgodt who died in August 1938.

In 1936 Olaf Karlsgodt, the Johnsons and the Meiers entered into an oral agreement to build, and they did build, a building upon the whole of the east 80 of the lot. The building was so constructed that a common entrance and stairway on the north side of the building at about its center served the upper story; about one-half of the stairway was on the west end of the Karlsgodt property and the other half on the east end of the Meiers property. The second story was to be completed by each of the parties over his portion of the lot, as and when each saw fit to do so, and it was eventually constructed by each of the parties except the Meiers.

On the second floor a hallway extended from the top of the stairs across the Karlsgodt property to the east side where a lavatory was built for the common use of the people occupying the upstairs portion of the building, and a hallway also extended to the west of the stairway crossing the Meiers' and Johnsons' property. At the west end of the hall is located a fire escape for the building.

In July, 1940, the parties to this action entered into a written agreement with respect to the building and its use, the material parts of which, after describing the ownership of the parties in the land and the building, are as follows:

'Now therefore, the said parties do grant, promise, covenant and agree that the respective parties shall severally and not jointly own that portion of the building situated on each of the respective lots hereinbefore mentioned; to themselves, their heirs and assigns; and, whereas, the furnace is installed in that portion of the building owned by said Hawkin Karlsgodt, Erling Karlsgodt and Magnhild Karlsgodt, whereby greater advantage may accrue to said Hawkin Karlsgodt, Erling Karlsgodt and Magnhild Karlsgodt, now, therefore, the said Hawkin Karlsgodt, Erling Karlsgodt and Magnhild Karlsgodt do grant, covenant, promise and agree that the said Julius W Meiers and Lena Meiers, his wife, and the said Sig Johnson and Maude Johnson, his wife, may peacefully and lawfully enjoy such furnace to themselves, their heirs and assigns, it is further agreed that each of the respective parties shall contribute to the cost of operation and repairs of said furnace in proportion to their ownership of the building; and, whereas, the hallways and stairway are located in that portion of the building constructed and owned by said Hawkin Karlsgodt, Erling Karlsgodt, Magnhild Karlsgodt, Julius W. Meiers and Lena Meiers, his wife, whereby greater advantage may accrue to said parties, now, therefore, the said Hawkin Karlsgodt, Erling Karlsgodt, Magnhild Karlsgodt, Julius W. Meiers and Lena Meiers, his wife, do grant, covenant, promise and agree with said Sig Johnson and Maude Johnson, his wife, that they may peacefully and lawfully enjoy such hallways and stairways to themselves, their heirs and assigns; and, whereas, the fire escape is located on the west side of that portion of the building owned by Sig Johnson and Maude Johnson, his wife, whereby greater advantage may accrue to said Sig Johnson and Maude Johnson, his wife, now, therefore the said Sig Johnson and Maude Johnson do grant, covenant, promise and agree with said Hawkin Karlsgodt, Erling Karlsgodt, Magnhild Karlsgodt, Julius W. Meiers and Lena Meiers, his wife, that they may peacefully and lawfully enjoy such fire escape to themselves, their heirs and assigns.

'It is further mutually understood and agreed, between the respective parties that this agreement shall remain as long as the building shall last, and shall pass to the heirs and assigns of the respective parties.'

The complaint alleges that on or about the 29th day of September, 1942, defendants closed the hallway on the second story leading from the stairs to the west side of the building and refused to allow plaintiffs the use thereof.

The answer admits most of the allegations of the complaint and alleges affirmatively that the agreement provided for the heating of the building with a common furnace which was installed for that purpose in the basement; that in October 1941 plaintiffs, without the consent of defendants, destroyed the heating plant and removed it from the building to the damage of defendants in the sum of $1,050; that in consequence defendants were obliged to install a heating system of their own at a cost of $700; that since plaintiffs violated the terms of the agreement by removing the heating plant, the agreement is no longer binding upon any of the parties.

By the cross complaint defendants sought damages against plaintiffs in the sum of $3,468.

The reply put in issue the affirmative allegations of the answer and cross complaint save that plaintiffs admitted that the furnace had been removed because after use it proved to be unsatisfactory and that by mutual agreement of the parties each of them at his own expense installed a new furnace in his respective...