Mahnken v. Gillespie

• Citation: 43 S.W.2d 797,329 Mo. 51
• Decision Date: 20 November 1931
• Docket Number: 29768
• Parties: Albert Mahnken et ux., Appellants, v. Ernest Gillespie and Jesse Comer
• Court: United States State Supreme Court of Missouri

43 S.W.2d 797

329 Mo. 51

Albert Mahnken et ux., Appellants, v. Ernest Gillespie and Jesse Comer

No. 29768

Supreme Court of Missouri

November 20, 1931

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Affirmed.

Barnett & Hays for appellant.

(1) To maintain as a part of a way used by tenants and their guests a well platform in which there is an opening covered only by a board or a board and stone, is negligence, at least such as should be submitted to a jury. Persons using a private way with the consent or permission of the owner are entitled to the same degree of protection from danger as they would be on a public highway. 45 C. J. 857; St. Gemme v. Osterhaus (Mo. App.), 294 S.W. 1022. (2) When real estate is rented to and is in the possession of different tenants, the liability for the negligent maintenance is the liability of the landlord. This rule applies to the negligent maintenance of ways which are common to several tenements, so that the same cannot be exclusively in the control of any one tenant. (3) The common walk constituted an easement by implication. A grant by implication of an easement of a right of way appurtenant to land conveyed, depends on the intention of the parties as shown by the instrument and the situation with reference to the instrument, and it is not strictly the necessity for a right of way that creates it. Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 97 N.E. 54. If during the unity of ownership the owner of two properties uses one for the benefit of the other in such manner as would have given rise to the presumption that an easement existed if the tenements had been held by different persons, then upon a conveyance of the property so used an easement will be granted to the purchaser, provided the use has been such that the easement resulting from it would be of the class known as continuous and apparent, and would be necessary for the reasonable enjoyment of the property conveyed. Dineen v Corporation for Relief of Widows, 114 Md. 589, 79 A 1021; 19 C. J. 914, 915, 918; Chesapeake, etc. Railroad Co. v. Davis, 119 Ky. 641, 60 S.W. 14; Ind. etc. Railroad Co. v. Barnhart, 115 Ind. 399; 36 C. J. 213; Roman v. King, 25 A. L. R. 1263; Fabel v. Poehmer Realty Co. (Mo. App.), 227 S.W. 858. (4) The duty is on the landlord to use ordinary care to maintain the common passageways in his building in a safe condition where he leases portions of the same building to different tenants, and where he necessarily reserves under his control those parts of the building which are used in common by all of the tenants. Dierkes v. Dry Goods Co. (Mo. App.), 243 S.W. 269; McGinley v. Alliance Trust Co., 168 Mo. 257; Dalton v. Maguire Co., 221 S.W. 443; Herdt v. Koenig, 137 Mo.App. 589; Wilson v. Jones, 182 S.W. 756; Udden v. O'Reilly, 180 Mo. 650; Miller v. Geeser, 193 Mo.App. 1. (5) The landlord's liability in respect of possession, is in general suspended as soon as the tenant commences his occupation. But where the injury resulted to a third person from faulty or defective construction of the premises or from their ruinous condition at the time of the demise or because they contained a nuisance, even though this only becomes active by the tenant's ordinary use of the premises, the landlord is still liable notwithstanding the lease. Mancuso v. Kansas City, 74 Mo.App. 138; Taylor, Landlord and Tenant, Sec. 175; Flanagan v. Welch, 220 Mass. 186, 11 A. L. R. 110 (note); Karp v. Barton, 164 Mo.App. 389. (6) The landlord, as to those parts of the building used in common by the various tenants, owes his tenants the duty of exercising reasonable care to maintain them in a reasonably safe condition. Lang v. Hill, 157 Mo.App. 685; 36 C. J. 212; Milford v. Holbrook, 9 Allen, 17; Peadman v. Conway, 126 Mass. 374; Shipley v. 50 Associates, 101 Mass. 251; St. Gemme v. Osterhaus (Mo. App.), 294 S.W. 1022.

D. S. Lamm for respondent, Gillespie.

(1) No instrument in Gillespie's chain of title even hinted at an easement. The well platform was sixty some odd feet from the street entirely on private properties. It was split by the property line, but Gillespie didn't know it until after the death. Under these circumstances no easement by implication or otherwise exists. Bales v. Butts, 274 S.W. 679; Seested v. Applegate, 26 S.W.2d 796; Bussmeyer v. Jablonsky, 241 Mo. 681; Jablonsky v. Wussler, 262 Mo. 320; Baumhoff v. Lochhaas, 253 S.W. 762; 19 C. J. p. 916, par. 107. (2) Deeds describing lots by number or by metes and bounds cannot be held to include as an appurtenance an easement upon an adjoining lot, conveyed by the same common grantor, unless the easement is necessary to the enjoyment of the lot in favor of which it is claimed. The degree of necessity to support an easement (particularly when applied to ways) can never be implied from considerations of convenience. In Missouri, as applied to ways, the "strict" necessity rule has been followed in very recent cases. An implied easement of way never exists when every person owning or occupying the south thirty-two feet eleven inches (Comer property) and every person owning or occupying the north fifty-five feet one inch (Gillespie property) can build and has plenty of unobstructed space to build separate walks on their separate properties as means of ingress and egress. Bussmeyer v. Jablonsky, 241 Mo. 681; Seested v. Applegate, 26 S.W.2d 799; Bales v. Butts, 274 S.W. 682. (3) To become an easement there must be more than permissive use. Use to ripen into easement must be adverse, under claim of right, continuous, uninterrupted, with full knowledge and acquiesence of landowner and for full prescriptive period. Seested v. Applegate, 26 S.W.2d 796; Anthony v. Building Co., 188 Mo. 704. (4) The landlord cannot be held liable for defects existing at the time of the demise or later unless he knew of the defects or had knowledge of facts from which he ought to have known. 36 C. J. 204, secs. 874, 875; Meade v. Montrose, 173 Mo.App. 722; Whitely v. McLaughlin, 183 Mo. 160; Degnan v. Doty (Mo. Sup.), 246 S.W. 922; Byers v. Essex Inv. Co., 281 Mo. 375; Wilt v. Coughlin, 176 Mo.App. 275. Ownership does not create a presumption of knowledge by the landlord of a particular defect in leased premises. Kohnle v. Paxton, 268 Mo. 463. (5) The facts cannot be stretched sufficiently to bring them within the attractive nuisance doctrine. Rallo v. Heman Const. Co., 291 Mo. 221; Kelly v. Benas, 217 Mo. 1; Overholt v. Vieths, 93 Mo. 423; Arnold v. St. Louis, 152 Mo. 173. (6) Nor can the facts bring the case within the rule which requires owners to keep public walks and property in the immediate vicinity thereof in safe condition for pedestrians, since the well platform was far back on the lot (sixty-four feet) and reached only by a walk running through property and entirely on private property. All of this line of cases are based upon defects in public walks or appurtenances immediately adjacent. St. Gemme v. Osterhaus, 294 S.W. 1022; Rose v. Gunn Fruit Co., 201 Mo.App. 263; Bianchetti v. Luce, 2 S.W.2d 129. (7) Nor can respondent be held liable under the common-way rule relied upon in the petition, since Gillespie reserved no control whatever. Under the so-called common-way rule, the landlord is held liable when he has rented different parts of the same premises (such as flats or apartments or storerooms) and has reserved for himself control of or is charged with the duty of maintaining common passageways for all of his tenants (such as hallways in a building occupied by several tenants, walks and steps leading into an apartment or flat occupied by several tenants, courtyards, etc.). Unless it is established that the landlord reserved some degree of control over the passageway, he cannot be held under the so-called common-way rule. Bender v. Weber, 250 Mo. 551; Marcheck v. Klute, 133 Mo.App. 280; Karp v. Barton, 164 Mo.App. 389; Herdt v. Koenig, 137 Mo.App. 589; Udden v. O'Reilly, 180 Mo. 651; McGinley v. Alliance Trust Co., 168 Mo. 257; Hunter v. Schuchart, 267 S.W. 411; Bleisch v. Helfrich, 6 S.W.2d 978.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The plaintiffs, husband and wife, sue for damages for the death of their minor child who, while at play, fell into and was drowned in a well or cistern, located on the boundary line between the residence properties owned by the respective defendants, but occupied at the time by their respective tenants. The two residence lots in question faced west on Lafayette Street, in Sedalia Missouri, and were one hundred and twenty feet deep, extending to the Missouri Pacific Railroad right-of-way. The north of the two lots was owned by defendant Gillespie, and the south one by defendant Comer, each having a residence thereon occupied at the time of this accident by their respective tenants. On the east-and-west boundary line between these residence properties and back about sixty-five feet from the front sidewalk there was a well used to some extent at least by the occupants of both residences. This well was about opposite the rear and back door of each residence, with which it was connected by a paved walk, the covering of the well forming part of the walk. There was also a two-foot concrete walk extending from the front sidewalk to this well, or rather to the concrete covering over the well, so that persons going to the rear doors of these two houses could go from the front sidewalk along this walk to the well covering, which was wider than the walk and elevated some six inches, and then turn to the right to the rear of the Comer residence, or to the left to the rear of the Gillespie residence. The Gillespie residence occupies the larger lot and, judging from the photographs, is the more substantial one of the two, is closer to the...