Missouri State Oil Co. v. Fuse
| Decision Date | 10 July 1950 |
| Docket Number | No. 1,No. 41584,41584,1 |
| Citation | 232 S.W.2d 501,360 Mo. 1022 |
| Parties | MISSOURI STATE OIL CO. v. FUSE et al |
| Court | Missouri Supreme Court |
Sylvan Agatstein, St. Louis, for plaintiff-appellant.
Oliver F. Erbs, David R. Hensley, Hensley & Hensley, St. Louis, for third-party defendants-appellants.
Harry C. Avery, St. Louis, for defendants-respondents.
VAN OSDOL, Commissioner.
In this action plaintiff sought a judgment and decree establishing a permanent easement on and across defendants' real property, and an order permanently restraining defendants from interfering with plaintiff's use.
Plaintiff and defendants acquired their respective lands from common grantors. Such grantors, Joseph Pessina and wife, were made third-party defendants, and the defendants as third-party plaintiffs sought recovery against (the grantors) third-party defendants for breach of the covenants of their warranty deed. The third-party defendants also filed a counterclaim seeking the relief of reformation of their deed to defendants (on the ground of mutual mistake) so as to express an exception of the easement which third-party defendants alleged was vested in plaintiff. The trial court found the issues and entered judgment in favor of defendants and against plaintiff on plaintiff's claim for the establishment of an easement, and for defendants as third-party plaintiffs against third-party defendants for $500 damages (attorney fees) on the third-party plaintiffs' claim for breach of the covenants of the third-party defendants' deed. Plaintiff and third-party defendants have appealed.
This court has appellate jurisdiction of the case on the ground that 'title to real estate' is involved. Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894; Wallach v. Stetina, Mo.Sup., 20 S.W.2d 663; Davis v. Lea, 293 Mo. 660, 239 S.W. 823. See also Chapman v. Schearf, Mo.Sup., 229 S.W.2d 552; Section 3, Article V, Constitution of Missouri 1945, Mo.R.S.A.Const. Art. V, Sec. 3. We here note that this is not a case wherein the relief sought by a plaintiff is an order restraining the interference with an alleged existing easement, and wherein proof of title to the alleged easement is merely supportive of the prayer for the injunctive order. In such a case 'title' is only collaterally or incidentally involved. Wallach v. Stetina, supra. In the instant case, the plaintiff has additionally sought the relief of an adjudication of the existence of an easement--an interest in land in another's possession. It is true 'title' in the sense of evidence of ownership of a fee simple estate is not in issue; but the relief sought is a decree establishing an easement, which easement would interfere with the absolute owners', defendants', right of exclusive and unrestricted possession and user, and which decree would amount to an adjudication of such an interest in defendants' real estate as would encumber the land and cloud the clarity of defendants' otherwise perfect fee simple title. The relief sought, if granted, would directly operate upon defendants' title 'in some measure or degree.' See Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771, 776. Our case also differs from the appeal in a condemnation proceeding wherein (the antecedent perfect fee simple title in the landowner being conceded) the issue is not 'title'--the issue is on the right to take all or a part of the landowner's conceded title. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372; Missouri Power & Light Co. v. Creed, 325 Mo. 1194, 30 S.W.2d 605.
In 1936 third-party defendants, Joseph and Rose Pessina, acquired real property at the northeast corner of the intersection of Macklind and Bischoff Avenues in St. Louis. The tract had a frontage to the southward on Bischoff of 89 feet 6 inches, and extended northwardly along the east side of Macklind Avenue 162 feet 2 1/4 inches. In 1932 a brick building, used as a filling station, had been erected on the west side of the tract; and a residence building, facing Bischoff Avenue, was situate on the east side of the tract. Prior to their acquisition of the (89' 6"' X 162' 2 1/4"') tract, the Pessinas had operated the filling station, and they had occupied the residence property since 1938.
February 13, 1946, the third-party defendants, Pessinas, by their general warranty deed, conveyed the west fifty feet of the tract to plaintiff, Missouri State Oil Company; and plaintiff through its lessees entered into possession of the filling-station property, and the operation of the filling station by plaintiff's lessees has been continued. June 11, 1946, the third-party defendants, by their general warranty deed, conveyed the east 39 feet 6 inches of the tract to defendants (third-party plaintiffs), Frank Fuse and wife; and defendants entered into possession of the residence property. Neither of the warranty deeds in any way mentioned any easement appurtenant to the filling-station property. Since the filling station has been operated, westbound patrons of the filling station have been passing across the southwest corner of the residence property upon and over a triangular concrete-surfaced extension of the concrete-surfaced apron or driveway approach from Bischoff Avenue to the gasoline pumps situate in front of and to the southware of the filling-station building.
The triangular extension of the driveway approach is 10 feet at its base (along the north side of Bischoff Avenue), with its west side extending northwardly 15 feet along the west line of the residence property and with its concavely-curved hypotenuse of about 18 feet delineated by a concrete retaining wall or curb varying from about 2 to 2 1/2 feet in height and apparently about 6 inches in width, but which wall or curb, at its southeast end, declines in height and ends at the level of the sidewalk at the north sidewalk line. The retaining wall or curb retains the higher ground of that part of the residence property to the northeastward. As stated, the triangular extension has been so constructed and maintained since the filling station has been operated.
January 19, 1946 (prior to the execution of the warranty deed by the Pessinas, third-party defendants, to plaintiff in February 1946), the Pessinas, vendors, had executed their 'Receipt For Earnest Money' to plaintiff, purchaser, reciting the money received was part of the purchase money for the filling-station property (50' X 162' 2 1/4"') which the vendors undertook to convey by warranty deed to plaintiff. By an attached 'rider' the Pessinas, vendors, further agreed 'to grant and convey to purchaser a permanent easement over and across the southwest corner of his adjoining property to the east of the hereinabove described real estate coinciding with the present paved driveway giving access to the conveyed property; which easement shall be surveyed before the closing of this transaction and pursuant thereto specifically described to the satisfaction of the parties.' The survey mentioned was not completed until June 12, 1946, just after the conveyance of the residence property (39' 6"' X 162' 2 1/4"') to defendants, Fuses, had been completed, June 11, 1946.
No express grant of the stipulated easement has been made by the third-party defendants to plaintiff, and no mention was made of any easement in the deed of February 13th. Yet it might be argued that plaintiff, by the 'rider' attached to the contract of purchase, acquired a right or interest in the residence property, more particularly in the triangular area, as against the Pessinas, third-party defendants, which right, although not evidenced by an actual grant and not cognizable by a court of law, was enforceable in a court of equity as against the vendors, Pessinas, third-party defendants. 58 C.J., Specific Performance, Sec. 242, p. 1031; Louisville & N. R. Co. v. Nelson, 145 Ga. 594, 89 S.E. 693; Apsey v. Nash, 229 Mass. 77, 118 N.E. 180; Bailey v. Agawam National Bank, 190 Mass. 20, 76 N.E. 449, 3 L.R.A.,N.S., 98, 112 Am.St.Rep. 296. The third-party defendants have not denied such equitable right in plaintiff; have alleged an easement in plaintiff; and, as stated supra, have sought a decree of reformation of their deed to defendants on the alleged ground the failure to expressly except an easement from the covenants of their conveyance to defendants was due to mutual mistake. Obviously, the contract to convey the easement has not been consummated by a grant.
Defendants had no constructive notice by any recordation of the contract to convey a right of user appurtenant to the filling-station property, nor is it shown defendants had actual notice of the contract; and, as stated, the third-party defendants made no express grant of an easement in their conveyance to plaintiff, and made no express exception of any right of such a user in their conveyance to the Fuses, defendants. Yet the physical condition of the property indicated it was affected by a use. The obviously permanent nature of the improvement and the visible character of the user were sufficient, it is contended, to suggest to a purchaser of the residence property that such property was subject to a servitude. And it is not here said that defendants would not have had notice of and taken subject to an easement of passage over the triangular area, if there were a valid easement by grant express or implied. (In this case we are not concerned with any question of prescriptive user.)
Defendant-respondent, third-party plaintiff, Frank Fuse, testified that, prior to the negotiations for the purchase of the residence property, he inspected the property. Joseph Pessina, third-party defendant, showed him the location of the property lines, including the west boundary line. Pessina did not 'say anything about an easement.' Defendant Fuse had lived about three blocks from the property for twelve years and had passed the...
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