Larkin v. Kieselmann, 42944

• Decision Date: 13 July 1953
• Docket Number: No. 42944,No. 1,42944,1
• Citation: 259 S.W.2d 785
• Parties: LARKIN v. KIESELMANN et al
• Court: Missouri Supreme Court

Page 785

259 S.W.2d 785

LARKIN v. KIESELMANN et al.

No. 42944.

Supreme Court of Missouri, Division No. 1.

July 13, 1953.

Alfred L. Grattendick and Kenneth W. Grattendick, St. Louis, attorney for appellants.

J. E. Patton, St. Louis, attorney for respondent.

HYDE, Presiding Judge.

Action to try and determine title to a tract of land 30 feet wide (fronting on Kingshighway Boulevard in St. Louis) and extending west 460 feet, which plaintiff claimed to own in fee simple. Defendants sought affirmative relief establishing their claim to a perpetual easement in this land as part of a private street. Therefore, title is involved so as to give this Court jurisdiction. Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552. The Court adjudged title in plaintiff free from defendants' claim and defendants (owners of six adjoining tracts) have appealed.

The question for decision is whether the conveyance of lots by reference to a recorded plat, on which a tract of land 60 feet wide and 460 feet long is designated as a private street, creates a perpetual easement therein for street purposes in the purchasers of lots abutting on the tract and their successors in title. The land claimed by plaintiff is the south half of a private street designated as Margaretta Avenue on a plat of City Block 4385 filed for record by Joseph Weigand, September 1, 1905. This plat was made by the City Surveyor and is in words and figures, as follows:

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

Plaintiff had a deed for the tract herein involved from heirs of Joseph Weigand, which recites, after the description of the property: 'and shown as the Southern 1/2 of Margaretta Avenue, a private street 60 feet wide, on plat recorded in surveyors record book 8 page 71.' This deed also states: 'Subject to easements, conditions, restrictions and reservations as of record, if any.' Tax receipts, 1936 to 1949 to Rudolph Weigand et al. for taxes on this tract only, were offered in evidence by plaintiff. Tax receipts, 1920 to 1933 to Joseph Weigand also offered by plaintiff show taxes paid by him on some of the lots in Block 4385 as well as on the tract herein involved.

Joseph Weigand conveyed Lot 1 to Andy and Christina Walcher, November 17, 1905, and it is now owned by their son, defendant Eddy Walcher. The deed contained a metes and bounds description and also the following: 'being all of lot one and one-half of a private alley west thereof and the north one-half of a private street 60 feet wide south of said lot and alley according to a plat filed September 1, 1905, in Book 8, page 71, of the surveyors' records of the St. Louis City Recorder's Office. It is expressly understood and agreed by and between all the parties hereto that that part of the property included in the above description, situated south of the south line and west of the west line of said lot, as shown on said plat, is hereby reserved as and for private street and alley for the use and benefit of the grantees of the parties of the first part in said Block 4385 of the City of St. Louis.' Other deeds by Joseph Weigand made similar references to the plat and street. One to Charles A. Anderson and Anna K. Anderson, his wife (one of defendants), dated July 20, 1923, contained the following description: 'Lot 27 of a Subdivision of Block 4385 of the City of St. Louis, according to a plat recorded in Surveyor's Record Book 8, page 71, having a front of 30 feet on the center line of a private street 60 feet wide, called Margaretta Avenue, by a depth northwardly of 190 feet to the center line of an alley 15 feet wide; together with the improvements thereon.'

There was considerable evidence about the present use of the street and some photographs in the record to show its condition. This is a dead end street, terminating at the plant of the Mississippi Valley Last Company across its west end. All of the north 30 feet of the street is surfaced with chat and cinders from Kingshighway west. In some places in the east 200 feet of the street the surfacing went south of the center of the street. The surfacing covers the whole 60 feet of about the west 250 feet. (Estimates of this distance in plaintiff's evidence ranged from 200 to 300 feet.) The south half of the west 250 feet is used mainly for turning cars around or for parking. The United Drug Company owns the land south of this street and has a fence there; and a city fireplug is also located there. The south half of the street (claimed by plaintiff) slopes up-grade to the west from Kingshighway to what the witnesses described as a 'hump'. The traveled part of the street narrows at the 'hump' but there was evidence that even there five or six feet of the south half of the street was used for traffic. The testimony indicated that the 'hump' made about 100 feet of the south half of the street impassable to vehicles, but people walked over it. The street is used by garbage trucks, milk wagons and delivery trucks, as well as by the residents of the street. If they could not use the south half of the street, to turn around at the west end, they would have to back out. Defendants are residents of the street; the owners of eleven tracts on the north side, some of these tracts consisting of more than one lot, were sued by plaintiff.

Plaintiff says an easement can be created only by grant and that there must be a dominant and servient estate, citing Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604, 95 A.L.R. 452; Zinser v. Lucks, 361 Mo.Sup. 671, 235 S.W.2d 844; Marshall v. Callahan, Mo.App., 299 S.W.2d 730; and seems to take the position that there was neither a specific grant by Joseph Weigand nor a reservation in the deed to plaintiff which could create an easement in defendants or their predecessors in title. However, when property sold is described in a conveyance by reference to a plat upon which streets are shown, there is an implied grant of an easement therein which is deemed a part of the property to which the grantee is entitled. 17 Am.Jur. 958, Sec. 47; 28 C.J.S., Easements Sec. 39, p. 701. 'If one conveys lots by a map or plat, which represents the lot as bounded upon such road of way, and the map or plat is referred to...