Mueller v. Larison

• Decision Date: 12 March 1962
• Docket Number: No. 48964,No. 2,48964,2
• Citation: Mueller v. Larison, 355 S.W.2d 5 (Mo. 1962)
• Parties: Edward H. MUELLER and Jessie M. Mueller, Respondents, v. Gilbert H. LARISON and Hattie S. Larison, Appellants
• Court: Missouri Supreme Court

Page 5

355 S.W.2d 5

Edward H. MUELLER and Jessie M. Mueller, Respondents, v. Gilbert H. LARISON and Hattie S. Larison, Appellants.

No. 48964.

Supreme Court of Missouri, Division No. 2.

March 12, 1962.

Cliff Bailey, Kansas City, for appellants.

Frank P. Sebree, Kansas City, for respondents.

STOCKARD, Commissioner.

After an adverse judgment in the trial court the defendants took an appeal 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 extends eastward a depth of 109.8 feet. When the subdivision was originally laid out in 1887 the owner of the land reserved a 22-foot strip of land lying east of and adjoining said Lot 2, and extending north and south between 38th and 39th Streets. This strip was never dedicated to public use as a street or alley. Adjoining Ivanhoe Park to the east lies Aberdeen subdivision. Appellants own Lot 6 of Block 3 thereof which faces north on 38th Street. It is 65 feet wide and 140.1 feet deep, and lies adjacent to Ivanhoe Park. There is a lot between respondents' lot and 38th Street, but near the east or rear portion of that lot the street jogs sharply to the south and again to the east, and the north line of appellants' Lot 6 facing on 38th Street, if extended westward to Garfield Avenue, would be about even or possibly one and one-half feet north of the north line of respondents' lot. In the northeast corner of their lot, and facing east onto the 22-foot strip, respondents have garage. To the north and east of the garage, and east of the lot north of respondents' lot, is a rock wall a foot or so in height which is referred to as 'a hillock of rock, dirt and iris.' It is not clear whether this wall is located in a portion of the 22-foot strip or in an unused portion of 38th Street, but it is not on respondents' lot. It blocks a substantial portion of the entrance way to the 22-foot strip from 38th Street.

A survey discloses that when appellants' lot is located by measurements from a fixed point further east there is an overlapping of the west side of said Lot 6 onto the 22-foot strip by approximately 4.33 feet. During the trial appellants admitted that they made no claim whatever to the 22-foot strip, but they claim to own all of Lot 6, and when this disclaimer is read in context it is evident that they only disclaim any interest in that part of the 22-foot strip not overlapped by their Lot 6.

Prior to the time appellants moved into their house in November 1954, the concrete driveway from the garage extended northward to 38th Street, but the north portion of the driveway veered westerly into the 22-foot strip a distance of 7.5 feet. Respondents presented evidence that 'every day' from the time he purchased his home in September 1949, and until December 1954 he used a portion of appellants' concrete driveway leading southward from 38th Street in order to obtain access to his garage and that the owner previous to him used that part of the driveway within the 22-foot strip 'daily' from 1936 to 1949 as a means of access to the garage, and that no objection was made by anyone to that use.

In December 1954, Mr. Mueller attached a basketball 'goal' to the east end of his garage, apparently for the use of his son to practice basketball, and Mr. Larison told him that while he could not tell him not to put up the basketball 'goal' he was not going to permit the use of his driveway for a playground. Shortly thereafter Mr. Larison placed a stake in the concrete portion of the driveway on what he considered to be the west boundary line of his lot, and he later built a low wall with concrete blocks and placed thereon a fence extending southward past the south line of respondents' lot. The wall and fence were located on the western boundary of appellants' lot when the boundary line was located by measurements from a fixed point to the east, but they were also located approximately 4.33 feet into the 22-foot strip. The distance between the rock wall north and east of respondents' garage and the north end of appellants' fence was 7.69 feet. Respondents could drive an automobile through this area but it would be close. In order to get an automobile into their garage it was necessary to maneuver it carefully and back it at least twice.

Respondents' petition was filed in June 1956, and was in two counts. In the first count they alleged that they were the owners of the 22-foot strip east of their lot, and that appellants had erected a wall thereon which interfered with the access to their garage. They prayed that they be adjudged the owners in fee simple of the 22-foot strip; that appellants be required to remove the wall; that appellants be restrained and enjoined from entering upon the land of respondents; and that they recover damages. The second count is specifically stated to be 'an alternative count and is intended to be applicable only in the event the wall erected by [appellants] * * * is adjudged to be on [their] land.' By this second count they sought an easement by prescription over a portion of the driveway of appellants for access to their garage; that appellants be required to move the wall from the area over which the easement is requested; that appellants be enjoined from obstructing the driveway; and that they recover damages. The trial court entered findings of fact and conclusions of law that respondents 'are the owners of the north 37 1/2 feet of Lot 2, Block 8, Ivanhoe Park * * * together with the strip of land adjoining on the east 22 feet in width,' and that appellants 'are the owners of Lot 6, * * * of Block 3, Aberdeen, * * *.' It also found that respondents, and their predecessors in interest, had 'for a period in excess of ten years used, without objections, said concrete driveway and that the use * * * had been open, continuous, visible, uninterrupted and adverse for said period and that as a result thereof [respondents] have an easement by prescription over said driveway.' It then found that the use of the driveway 'included 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.' The judgment entered by the court made no specific reference to Count I or to Count II, but 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.' The judgment also directed the removal of that part of the wall and fence which encroached upon the easement and enjoined any future encroachment, and it also decreed that respondents recover $200 from appellants as damages.

We note that the above findings of fact and conclusions of law are in part inconsistent with themselves and with the judgment entered. The court specifically found that both appellants and respondents were the owners of the overlapping area. However, Count I was necessarily ruled in favor of appellants and Count II was ruled in favor of respondents, and this necessitates the conclusion that appellants were the owners of that part of the area of the 22-foot strip overlapped by their lot.

The record does not disclose that the findings of fact and conclusions of law were requested by either party pursuant to Civil Rule 73.01(b), V.A.M.R., but such voluntary findings and conclusions were not prohibited. Abeles v. Wurdack, Mo., 285 S.W.2d 544, 547. However, the appeal is from the judgment, and the findings of fact and conclusions of law are not binding on this court. Davis v. Ashlock, Mo., 338 S.W.2d 816. In this court-tried case the 'appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature.' Civil Rule 73.01(d), V.A.M.R. In doing so we shall review the record de novo, determine the credibility, weight and...