Mueller v. Larison
| Decision Date | 05 June 1961 |
| Docket Number | No. 23302,23302 |
| Citation | 347 S.W.2d 446 |
| Parties | Edward H. MUELLER and Jessie M. Mueller, Respondents-Plaintiffs, v. Gilbert H. LARISON and Hattie S. Larison, Appellants-Defendants. |
| Court | Missouri Court of Appeals |
Cliff Bailey, Kansas City, for appellants.
Frank P. Sebree, Kansas City, for respondents.
Plaintiffs are the owners of residence property in Kansas City, Missouri, adjacent to residence property owned by defendants. The two residence lots are separated by an undescribed 22-foot strip of land which had been platted as a cushion or buffer zone between two subdivisions. The controversy stems from the use of a common driveway by the parties and their predecessors, and was precipitated when defendants erected a fence which plaintiffs claim prevented access to their garage. Plaintiffs seek an adjudication that they are the fee owners of certain lands, a decree of title to a small corner of defendants' lot as an easement, an injunction, and damages.
The petition is in two counts. In Count One plaintiffs make the claim and pray judgment that they are the fee simple owners of their described lot and also of the abutting portion of the mentioned 22-foot strip. They further claim that defendants wrongfully placed a wall and fence on plaintiffs' land, depriving them of access to their garage, and pray injunctive relief. Count Two identifies itself as an alternative count to be applicable only in the event the wall and fence are adjudged to be on defendants' land, in which event plaintiffs allege they and their predecessors in interest have owned their property for over ten years and have continuously used a driveway extending from 38th Street to their garage, and which provided the only access to plaintiffs' garage, and that such use created an easement over defendants' land by prescription, giving plaintiffs the right to continue to use the driveway. The prayer of Count Two is that plaintiffs be adjudged owners of such driveway easement, by prescription, that defendants be ordered to remove the obstructing wall and enjoined from obstructing the driveway, and that plaintiffs recover damages. In answer defendants deny and controvert plaintiffs' claims.
The court, to which the case was tried without a jury, found that the wall and fence were on defendants' property and on the concrete driveway which was also located in part on defendants' lot, and that plaintiffs, by prescription, owned an easement over the driveway, including that portion which extended upon defendants' property to a width of 4 1/2 feet. Findings were also made that plaintiffs are owners of their described lot, together with the 22-foot strip, and that defendants are owners of their described property.
The judgment recited the following provision: 'Accordingly, it is hereby ordered, adjudged and decreed that plaintiffs have an easement over the West 4 1/2 feet of Lot 6, Mister's Resurvey of Block 3, Aberdeen, from 38th Street to a point 12 feet south of the north line of Lot 2, Block 8, Ivanhoe Park, which easement will continue in perpetuity and inure to the benefit of plaintiffs' administrators, successors and assigns'. Additional provisions of the judgment required defendants to remove obstructions encroaching on the easement and permanently enjoined them from obstructing or interfering with plaintiffs' easement. Plaintiffs were awarded damages in the sum of $200. Defendants appeal.
Our first duty is to determine whether lawful jurisdiction of the appeal is vested in this court. If title to real estate is involved in the case, in the constitutional sense, then exclusive appellate jurisdiction is in the Supreme Court. V.A.M.S. Constitution, Article V, Sec. 3.
In Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721, plaintiff sued for a mandatory injunction for removal of a dam and for permanent injunction against obstructing an easement. Neither party prayed for an adjudication of title to the land affected by the easement. It was stated in the opinion that in cases wherein the judgment sought or rendered directly determines a title controversy involving an easement and operated directly upon the title of land, appellate jurisdiction is in the Supreme Court, but that the courts of appeals have jurisdiction in cases where the title to land is merely a subject of collateral inquiry, or in which the judgment will only affect the title incidentally or collaterally, and does not directly affect the title. The court points out in the Gibson opinion that neither party sought an adjudication of title to real estate and that no adjudication of title was made, but that plaintiff sought only injunctive relief--a remedy acting purely in personam. It was held that the easement ownership controversy only collaterally and indirectly affected the real estate involved--hence, jurisdiction was vested in the court of appeals. The Gibson opinion overruled Zinser v. Lucks, 361 Mo. 671, 235 S.W.2d 844, and Dillen v. Edwards, Mo.Sup., 263 S.W.2d 433, and held that those cases should have been transferred to the court of appeals. In each of the disapproved cases, injunction was sought against interference with use of an easement but no judgment directly affecting title was rendered or prayed.
In Judge v. Durham, Mo.Sup., 274 S.W.2d 247, 248, the Supreme Court re-transferred the case to this court, after we had originally transferred it there. The reason for the re-transfer was essentially the same as stated for the transfer in the Gibson case. The Supreme Court pointed out that 'plaintiff prayed for no affirmative relief with reference to the 'establishment' of such easement, nor did she seek any judicial determination of the ownership thereof', but instead only alleged that she had an easement, and the facts concerning it, and prayed for injunction against interference with its use; and, that the judgment was responsive to the prayer and related in no way to land title. The court said: 'The mere fact that it may be necessary to determine the existence or the ownership of an alleged easement in order to rule the ultimate issue presented in the cause, and that such is done by the trial court, does not give this court appellate jurisdiction on the ground that title to real estate is involved, within the meaning of Art. V., Sec. 3, Constitution of Missouri 1945, V.A.M.S., where neither party seeks an adjudication of that issue and the trial court grants no relief with reference thereto.' (Our emphasis.)
We have examined other cases, similar in nature to Gibson and Judge, which have been held not to...
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Allen v. Smith
...v. Grossman, Mo., 351 S.W.2d 735, 736(1); Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W.2d 501, 203(1); Mueller v. Larison, Mo.App., 347 S.W.2d 446] or in an action to set aside an easement [Peters v. Platte Pipe Line Co., Mo., 305 S.W.2d 413, 414(1); Robb v. N. W. Electric Power Co......
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Bunyard v. Turley
...sense. This is true when the easement is judicially established (Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894(1); Mueller v. Larison, Mo.App., 347 S.W.2d 446(1), and Mo., 355 S.W.2d 5(1)); and it is also true when establishment of the asserted easement is judicially refused (Missouri Sta......
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Pendleton v. Gundaker
...Mo., 305 S.W.2d 413. On this theory we accept jurisdiction.' More recently the Kansas City Court of Appeals in the case of Mueller v. Larison, Mo.App., 347 S.W.2d 446, recognized this jurisdictional question. This was a controversy stemming from the use by the parties of a common driveway w......
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Mueller v. Larison
...to the Kansas City Court of Appeals which properly transferred the case here because title to real estate is involved. See Mueller v. Larison, Mo.App., 347 S.W.2d 446. Respondents own the north 37 1/2 feet of Lot 2, Block 8, Ivanhoe Park subdivision, which faces west on Garfield Avenue and ......