M. H. Siegfried Real Estate, Inc. v. Renfrow

• Decision Date: 03 December 1979
• Docket Number: Nos. KCD,s. KCD
• Citation: 592 S.W.2d 488
• Parties: M. H. SIEGFRIED REAL ESTATE, INC., et al., Plaintiffs-Appellants, v. James P. RENFROW et al., Defendants-Respondents. 30355, KCD 30403.
• Court: Missouri Court of Appeals

Page 488

592 S.W.2d 488

M. H. SIEGFRIED REAL ESTATE, INC., et al., Plaintiffs-Appellants, v. James P. RENFROW et al., Defendants-Respondents.

Nos. KCD 30355, KCD 30403.

Missouri Court of Appeals, Western District.

Dec. 3, 1979.

Motion for Rehearing and/or Transfer Denied Dec. 31, 1979.

Cedric Siegfried, Robert J. Wise, J. Russell Ford, Independence, for plaintiffs-appellants.

C. John Forge, Jr., Independence, for defendants-respondents.

Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.

KENNEDY, Judge.

The present case grows out of a dispute between the plaintiffs, M. H. Siegfried Real Estate, Inc., and its grantees, Billy J. Holt and Donna Marie Holt, to whom the disputed property was conveyed during the pendency of the action; and the defendants, James P. Renfrow and Alice Renfrow, over the status of a 25-foot strip of land lying between their properties on Truman Road in Independence, Jackson County, Missouri.

Plaintiffs claimed to have an easement over such strip for ingress to and egress from its property, which had been obstructed by defendants Renfrow. Defendants denied that plaintiffs had an easement, and also contended that their claim was barred by the 10-year statute of limitations.

Plaintiffs' requested relief of injunction and damages was denied by the trial court and plaintiffs have appealed. We reverse and remand with directions.

The disputed strip is shown on the plat of the Locust Lawn subdivision as extending from Truman (formerly Van Horn) Road on the north to Lexington Avenue on the south, a distance of 647.05 feet. It lies along the easternmost side of the platted subdivision. Plaintiffs' real estate is Lots 15 and 16 of Locust Lawn, fronting 100 feet along Truman Road on the north, and bordered on the east, 200 feet in depth, by the disputed strip. Actually Lot 16, the east lot, joins the strip. Lot 16 is unimproved, while Lot 15, lying immediately to the west of Lot 16, has a 50-foot by 50-foot commercial building on its north (Truman Road) end.

We are here concerned only with that segment of the contested tract which extends south from Truman Road a distance of about 130 feet to a creek or gully which crosses the strip.

The property of the defendants Renfrow fronts on Truman Road and lies to the east of, and adjoins, the disputed strip. The Renfrow property is entirely outside the Locust Lawn subdivision.

Plaintiffs' suit sought to enjoin the defendants Renfrow from maintaining across the north end of the 25-foot strip a cable suspended from steel posts, which prevented entry to the strip from Truman Road on the north. This cable was erected by defendants on about April 1, 1975. In May, 1976, a year after this suit was commenced, the defendants erected along the west side of the strip, along the boundary between the strip and plaintiffs' Lot 16, a steel mesh fence which ran from the south end of a fence, which had earlier been erected by plaintiff Siegfried, southward to the ditch or creek a distance of 50 or 60 feet. These two obstructions, along with plaintiffs' fence, which extended south from Truman Road 50 or 60 feet, and the creek, effectively bar plaintiffs from any access between their property and the 25-foot strip, and enclose the strip with defendants' property lying to the east thereof. Access can be had only from defendants' property.

The plat of "Locust Lawn" was executed and filed for record September 25, 1947, by Leroy Pete Langley and Leona Langley. The 25-foot strip from Van Horn Road south to Lexington Avenue is designated on the plat "private road". The plat, however, contains the following language: "All thoroughfares shown on this plat and not heretofore dedicated to public use are hereby so dedicated".

Until 1974 or early 1975, there was nothing to mark the boundaries of the 25-foot strip. It was simply vacant space between the properties of the plaintiffs and the defendants. It had never been improved, graded or prepared for use as a road. In late 1974 or early 1975 Siegfried built the above-mentioned fence from Truman Road south along the east line of plaintiffs' property on the west boundary of the 25-foot strip, a distance of 50 or 60 feet.

Defendants Renfrow had occupied their property since 1958, where they operated a machinery and spare parts business. For the first 15 years they had occupied it as tenants under a lease, but they acquired title to the property by purchase on September 6, 1973. Both the Renfrows and tenants of the Siegfried property had utilized the southern portion of the 25-foot strip, extending up to 50 feet north of the creek, for storage of materials, but the north portion of the road had not been used before 1974 as a repository for materials by occupants of either property. According to the plaintiffs' testimony, and it was so found by the court, the northern portion of the property was used for ingress and egress between Truman Road and plaintiffs' property. Even after the erection by plaintiff Siegfried of the fence on the boundary between its property and the 25-foot strip, a distance of 50 or 60 feet southward, one could still drive down the 25-foot strip from Truman Road around the south end of the fence and thus gain access to plaintiffs' property.

Appellant Siegfried held title under a deed which describes the property as "all of Lots 15 and 16 in Locust Lawn, a subdivision in Jackson County, now City of Independence, Missouri, as per the recorded plat thereof". The printed portion of the deed, which follows the typed description, contains the following language: "With all and singular the rights, privileges, appurtenances and immunities thereto belonging . . ." Exactly the same language is used to describe the property in deeds to its predecessors in title going back to October 27, 1952. The October 27, 1952, deed is from John A. Dowker and Bonnie M. Dowker, his wife, to Cedric Siegfried. We do not have in evidence any deed from the Langleys, who were the platters of this subdivision in 1947. We do not have the deed from Siegfried to the Holts, but no argument is made that they did not succeed to all of Siegfried's rights in the easement, and we so assume.

The Renfrow property, on the other hand, is described by metes and bounds, a tract 200 feet north and south by 47.5 feet east and west. As earlier noted, it lies on the east side of the disputed 25-foot strip, and fronts on Truman Road. The parties have stipulated that it lies wholly outside the Locust Lawn platted subdivision.

Easement as an appurtenance to Lot 16.

A resolution of the dispute requires the determination of plaintiffs' rights, if any, in the 25-foot strip.

It is quite plain that the deed from the Dowkers and successive deeds which by mesne conveyances vested title in the present plaintiffs, gave to the plaintiffs a right to use the 25-foot "private road" for ingress and egress to their property. A conveyance which conveys property by reference to a map or plat, which map or plat shows the property so conveyed is bounded by a road or way, the right-of-way thereover passes by the conveyance as an easement appurtenant thereto. Goad v. Bennett, 480 S.W.2d 77, 80 (Mo.App.1972); Winslow v. Sauerwein, 285 S.W.2d 21 (Mo.App.1955).

It is not necessary for us to resolve the ambiguity in the plat which designates this strip as a "private road", and yet which purports to dedicate to public use "all thoroughfares shown on this plat and not heretofore dedicated to public use". Whether this particular roadway is dedicated to the public use or not, the plaintiffs as owners of Lot 16 of "Locust Lawn", had the right to use it as a right-of-way in connection with that lot. Goad v. Bennett, supra, at 80; 28 C.J.S. Easements § 39, p. 701 (1941).

Ten-year statute of limitations: § 516.010, RSMo 1978.

This would be the end of the case except for the contention of defendants Renfrow that plaintiffs' claim is barred by § 516.010, RSMo 1978, the ten-year statute of limitations. To determine if the statute of limitations has run, or commenced to run against plaintiffs' claim of easement, and if so when, we must examine the character of the use which the defendants Renfrow made of the land.

Defendants' limitations defense is here presented in an unusual posture, for they expressly disclaim any claim of their own upon the land based upon adverse possession; they raise the defense solely as a defense against plaintiffs' claims, to deny plaintiffs the relief they have requested. In the more familiar case, a party in possession is seeking to establish his own title as against a challenger upon the basis of adverse possession for the statutory limitations period. The two uses of limitations, i. e., as an offensive and as a defensive weapon, however, are correlative and the same legal principles apply. In either case, the party asserting the statute of limitations must show adverse possession for the statutory period. Loumar Development Co. v. Redel, 369 S.W.2d 252, 258 (Mo.1963); Dulce Realty Co. v. Staed Realty Co., 245 Mo. 417, 151 S.W. 415 (1912).

To begin the running of the limitations period, defendants must have asserted an unequivocal dominion over the property in such a way as to give notice to plaintiffs of the adversity of their possession. Franck Bros., Inc., v. Rose, 301 S.W.2d 806, 811-812 (Mo.1957). We will search the evidence for such an event.

Defendants Renfrows' tenancy of the land now owned by them commenced in 1958. They occupied the land as tenants under lease until 1973 when they purchased it. Since that time they have owned and occupied the property.

During all that period of time the defendants Renfrow have operated a spare machinery parts business. During all that time they apparently freely deposited various machinery and machine parts on the south portion of the disputed tract. The segment of the road upon which the machinery and spare parts were placed extended from the creek north for a distance estimated at 50 feet. This use of...