Lambert v. Rodier

• Decision Date: 27 May 1946
• Docket Number: No. 20732.,20732.
• Citation: 194 S.W.2d 934
• Parties: LAMBERT v. RODIER et al.
• Court: Missouri Court of Appeals

194 S.W.2d 934

LAMBERT v. RODIER et al.

No. 20732.

Kansas City Court of Appeals. Missouri.

May 27, 1946.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by E. W. Lambert against Moses Rodier and another to compel defendants to remove obstructions to use of a driveway between the homes of the respective parties and to enjoin defendants from interfering with plaintiff's use of such driveway. From a judgment for defendants, plaintiff appeals.

Affirmed.

"Not to be published in State Reports."

Day & Bonewits and Walter A. Raymond, all of Kansas City, for appellant.

Stephen O. Slaughter, Chet D. Vance, and W. Raleigh Gough, all of Kansas City, for respondents.

SPERRY, Commissioner.

E. W. Lambert, plaintiff, brought this suit against Moses and Kathryn Rodier, defendants. Plaintiff seeks to compel removal of obstructions to the use of a driveway between the homes of the respective parties, and to enjoin defendants from interfering with plaintiff's use of said driveway. A temporary writ was issued but, on final hearing, the court found the issues in favor of the defendants and against the plaintiff, and dissolved the injunction theretofore made. He found that the use of the driveway by plaintiff was permissive, did not commence in wrong or grant, and that plaintiff was not then, and had never been, vested with an easement or any right therein. Judgment was rendered accordingly.

The undisputed facts are: plaintiff owns a dwelling house, located at 3205 East 27th Street, Kansas City; defendants own a dwelling house contiguous thereto, located at 3203 East 27th Street; East 27th Street is an east-west thoroughfare and the houses face north; plaintiff acquired title to his property in 1916, at which time the property at 3203 was owned by a Mr. Torpey, who continued to own and occupy same until his death, in 1940; defendants acquired title from one Albert W. Rodier, who had acquired same, after Mr. Torpey's death, from a Building and Loan Company; defendants entered into residence in 1943; there existed, at the time of the trial, a concrete driveway located almost, if not entirely (the evidence was conflicting as to the ownership of a few inches) on the east side of defendants' property; the driveway was built sometime between 1921 and 1926; it led directly to the doors of a garage in rear of defendants' house; there was a garage in rear of plaintiff's house, the west end thereof being within a few inches of his west property line; the owners and tenants of both properties had, for many years, used the driveway to reach the garages; and a few months prior to the institution of this action defendants had planted a hedge and constructed a fence of posts and wire along their east property line, thereby barring plaintiff from entering or leaving his property over the driveway.

Plaintiff alleged: the facts of ownership of the respective properties; that the driveway was constructed by himself and Mr. Torpey, jointly, each contributing thereto, under an agreement whereby it was to be a partnership driveway; that he and his tenants, from that time until shortly before the filing of the petition, had used it, jointly with occupants of the Torpey property, continuously and without molestation; and that defendants had obstructed plaintiff's use thereof.

Plaintiff's counsel said, in his opening statement: "Our theory of the case * * * is that we helped construct this driveway, built it and have an investment and have used it for about 20 years. * * * It has been used for 20 or 25 years * * * under this agreement and under arrangements between the two original owners of the property * * *." He also stated that plaintiff was entitled to judgment on the theory that the driveway was built by plaintiff and Torpey, the then owners of the two properties, under an agreement to use it in common and that defendants were estopped to prevent plaintiff's use thereof.

Plaintiff testified to the effect that he acquired title in 1916; that his house was damaged by fire February 5, 1925; that he moved into the property a few weeks thereafter, lived there and repaired it; that the making of said repairs extended well over into 1926; that in March, 1925, the driveway was of dirt, and was muddy in rainy weather; that in April 1925, Mr. Torpey came to plaintiff's back porch and proposed that they jointly furnish material and labor and construct a partnership paved driveway; that plaintiff agreed to that proposal; that, pursuant to said agreement, plaintiff bought and paid for all of the cement and some of the sand and gravel used in construction, paid a laborer $5 for working on the driveway, and he worked on it, personally, three days; that Torpey furnished some material and labor; and that, thereafter, through the years, plaintiff furnished material and labor for maintenance. His testimony relative to conversations and agreements had between himself and Torpey, the latter being deceased at the time of the trial, were objected to, at the time, by defendants. Said objections were overruled but, thereafter, the court struck this part of plaintiff's testimony. Plaintiff's exhibits 1, 2, and 3, were introduced in evidence over the objection of defendants. Exhibit 1 is a memorandum, dated, 9-1-'26, being an itemized statement: for cement, $22.70, laborer, $5.00; and three days of labor of plaintiff, $15, totalling $42.70. This memorandum bears a notation thereon, as follows:

"My expense on driveway @3205 East 27th-Driveway partnership with place @3203 East 27th. (Keep).

                             (Signed) E. W. Lambert
                                      3205 East 27th
                                      K. C. Mo."
                

He said he made the memorandum and attached same to exhibits 2 and 3, when the checks were returned as paid. Exhibit 2 is a cancelled check made to a cement company for $22.70, dated 7-31-1926; and exhibit 3 is a cancelled check made to I. H. McBride for $5.00, dated 7-31-1926. Plaintiff stated that neither he nor his tenants had any difficulty with Torpey about the use of the driveway and that their use had been peaceable and uninterrupted from the time it was built until defendants constructed the obstruction. He stated that he bought sand, gravel, and cement for use in repairing his house in 1926, but that exhibits 1, 2, and 3, had no connection with bills for house repair; that several years before this trial he broke out a...