Mills v. Taylor

• Decision Date: 13 September 1954
• Docket Number: No. 43845,No. 1,43845,1
• Citation: 270 S.W.2d 724
• Parties: E. F. MILLS and Flora Mills, Appellants, v. D. I. TAYLOG, Respondent
• Court: Missouri Supreme Court

Page 724

270 S.W.2d 724

E. F. MILLS and Flora Mills, Appellants, v. D. I. TAYLOG, Respondent.

No. 43845.

Supreme Court of Missouri, Division No. 1.

Sept. 13, 1954.

Justin Ruark, Neosho, James Paul, James Tatum, Pineville, for appellants.

Robert E. Yocom, Springfield, for respondent.

DALTON, Presiding Judge.

Action in equity on the theory of equitable estoppel to establish and have adjudged, as a 'commonly owned appurteance to' plaintiffs' real estate, the existence of a permanent easement for passage over a small area in the corner of defendant's real estate and for an injunction to restrain defendant from interfering with plaintiffs' use of the easement. Defendant denied the existence of the easement, but admitted that plaintiffs owned the adjoining lands and admitted that the driveway, as described in the petition, had existed for a number of years immediately prior to the filing of the petition, but less than ten years Defendant also filed several counterclaims seeking damages and rents. The trial court found the issues for defendant and against plaintiffs on plaintiffs' petition and for plaintiffs and against defendant on defendant's counterclaims. Only the plaintiffs have appealed.

This court has jurisdiction of the appeal, since title to real estate is directly involved. Article V, Sec. 3, Constitution of Missouri 1945, V.A.M.S.; Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552, 553. Compare Gibson v. Sharp, Mo.Sup., 270 S.W.2d 721.

Plaintiffs and defendant are adjoining owners of real estate on the south side of State Highway No. 44 in McDonald County. The easement sought to be established is over a triangular tract in the northeast corner of defendant's land, which tract measures 12 feet along the right of way line of the state highway and 12 feet along the division line between the two properties. These distances are along the legs of the right angle triangle. For several years, this small triangular tract has been used as a part of the driveway from the highway into the west side of plaintiffs' gasoline filling station. When defendant threatened to extend his fence to include the property in question, the plaintiffs instituted this action in December 1951.

In 1946 both properties were unimproved and were owned by John Wallender. Defendant now owns the corner lot which fronts 80 feet on the south side of Highway No. 44 and has a depth of 210 feet on the east side of an intersecting highway. Plaintiffs own the next adjoining lot on the east, which fronts 55 feet on the south side of Highway No. 44 and has a depth of 210 feet. Plaintiffs acquired their lot in December 1948 from Stokie Peck, who had purchased from John Wallender's son. Defendant acquired his lot from James Chaffin and wife, grantees of John Wallender and wife. When defendant acquired his lot it had a building on it that had been used by John Wallender as a garage and, subsequently, by Chaffin as a feed store. It stood some distance south of the right of way line of the highway and about 14 feet west of defendant's east line. Defendant remodeled the building into a residence. While this property was being used for garage purposes 'a long 14 inch culvert' was put across the right of way ditch on the south side of the highway. This roadside ditch, 12 to 16 inches in depth, also extended in front of plaintiffs' property. It had also been bridged to the east of plaintiffs' filling station in order to provide for access from the highway. When plaintiffs acquired their lot there was a residence on the rear of the lot and another building on the front of the lot, the latter building being used as a country store. The concrete island for the filling station pumps was located between the store building and the front line of the lot. The ends of the island were about 21 1/2 feet from the respective sides of plaintiffs' lot. The gravel drive, which extended on each side of the filling station pumps, had entrances on the east and on the west from the highway. Plaintiffs' store building was some 13 feet east of their west line. A small moveable icehouse was located on this area between the store building and defendant's property line. After plaintiffs acquired their property, the icehouse was moved west onto defendant's property and left facing north on the gravel drive. Plaintiffs then built an extension about 12 feet wide and 30 feet long on the west side of their store building. This 'shed-room' was built 'to house the water pump, and for a feed room, general storage room and for a garage.'

In 1947, while John Wallender and his son were owners of the adjoining properties, the father operating a garage on the corner lot and the son a country store on the adjacent lot, the area between the improvements and the highway line was graveled and was used by the customers of both parties. The same was true subsequently when the Chaffins operated a feed store on the corner lot and Peck operated the country store and filling station on the adjacent lot.

In December 1948, when plaintiffs purchased, Mr. Peck pointed out the line between his property and the property of defendant. Both plaintiffs, husband and wife, testified in this case. Mr. Mills' testimony tended to show that, when he purchased the property, he saw automobiles turning off the highway at each side of the gas pumps and he saw that people were going in and out of each of the two station entrances. He thought he was acquiring the driveways. On three different occasions after he purchased the property, he had gravel or chat hauled to fill up mud holes in the driveway and defendant helped spread the gravel and fix the driveway on the part which extended over the area in dispute. The area was continuously used by plaintiffs' customers coming to and going from the store and filling station. Defendant was present and saw the 'shed-room' built on the west side of plaintiffs' store building and had helped with the work.

When plaintiffs were about to move their icehouse from the west side of their property to the east side, the defendant said: 'I wouldn't do that. I would move it right over here on mine. You can let it sit there as long as you want to.' Accordingly, plaintiffs had the icehouse moved onto defendant's property, as stated. Mills testified that the drive in question provided the only suitable access to the icehouse, store and filling station. Without the use of the disputed area of defendant's property, the 12 foot 'shed-room' on the west side of plaintiffs' store would be practically worthless. It would be almost impossible to get a car in or out of the garage, or to get trucks to the front of it to load feed. To use the garage, trucks would have to back out into the highway, a hazardous operation. Without the use of defendant's property as a part of the driveway, the plaintiffs' patrons could not pull in and out of the filling station on the west side. Inability to use this part of defendant's property would ruin plaintiffs' business.

At one time within the four years preceding the litigation, the defendant fenced a part of his property, but his fence excluded the disputed area. When defendant was fencing his lot, he said to plaintiff Mills: 'I'm going to fence my yard. Will this leave drive enough? * * * Does this leave you all the roadway you want?' The fence consisted of a 'few posts with just a little old wire kinda hung up on it.' Defendant never did tell Mills he could use the roadway, but he did say 'it was to the advantage of both * * * to have the road there.' When defendant started building the fence he said: 'I don't want to interfere with the driveway. It is a benefit to you and me both.' There were no markers or concrete on the driveway, only gravel. Plaintiffs' deed from Peck called for no easement over the disputed area. Before the 'shed-room' was built, Mills and defendant measured their properties and agreed upon the location of the true line between their lots. The 'shed-room' extended to within 16 inches of defendant's line. When plaintiffs purchased the property Mr. Peck told Mills the gravel driveway had always been used as a roadway and that there had been a mutual agreement among the owners of the properties.

Mrs. Mills' testimony corroborated that of her husband in various respects and she further testified that, after they purchased their property, she talked to defendant. 'He said he would like to keep that road going, that it was as much advantage to his property as it was to ours.' She further said that they relied on what defendant said, otherwise they would not have built the 'shed-room'; and that, when defendant put up a fence, he said to her, 'he wanted to leave plenty of room there. * * * He didn't want to fence up anything we needed.' Defendant said 'he wanted to sell his place and he wanted a road there for it to be a business place so he could sell it.' When plaintiffs purchased the property from Mr. Peck, Mr. Peck said the drive 'had always been used as a driveway and hadn't been nothing said about it and would always be used * * * always had been a road there and no one ever kicked on it being a road * * * it had been a road there ever since he had been there and before he bought it. * * * He said it was agreed that that road would be used for a driveway.' He told her the agreement was between him (Peck) and the Wallenders. Until the difficulty came up between plaintiffs and defendant, the defendant had also used the drive, including the 'disputed area,' as a passage 'going over to the store and back and forth' and for other purposes.

Defendant's evidence tended to show that after the dispute between plaintiffs and defendant arose, the defendant with the assistance of several persons moved the icehouse off of defendant's property and onto plaintiffs' property; that there was a shallow roadside ditch in front of plaintiffs' property that could be crossed by automobile at any place; that John Wallender was a party to no agreement...