Mulik v. Jorganian

• Decision Date: 06 April 1931
• Docket Number: No. 17148.,17148.
• Citation: 37 S.W.2d 963
• Parties: MULIK et al. v. JORGANIAN.
• Court: Missouri Court of Appeals

37 S.W.2d 963

MULIK et al. v. JORGANIAN.

No. 17148.

Kansas City Court of Appeals. Missouri.

April 6, 1931.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Steve Mulik and others against Sam Jorganian. Decree for plaintiffs, and defendant appeals. Transferred from Supreme Court. 30 S.W.(2d) 998.

Reversed.

Louis Kranitz, of St. Joseph, for appellant.

A. Bowers, of St. Joseph, for respondents.

BLAND, J.

This is an action in equity wherein plaintiffs seek to have a building, placed by defendant in what plaintiffs allege to be a public alley, declared a nuisance, that defendant be ordered to remove the same and that he be restrained from interfering with the public use of said alley. There was a decree in favor of plaintiffs and defendant has appealed.

Arizona and Pryor Avenues are paved public streets in the city of St. Joseph. Arizona Avenue runs east and west and Pryor Avenue north and south. They intersect each other at right angles. Beginning with Arizona Avenue and running south to an east and west alley in the center of the block there are four lots facing upon Pryor Avenue. Each of said lots are 30 feet in width upon their Pryor Avenue frontage and are 100 feet in depth. Beginning with Arizona Avenue, and running south, the first lot is owned by the defendant, the second by the plaintiff, Mulik, the third by the plaintiff, Dulkan, and the fourth by one Alvrais. These lots do not occupy the whole of the block. There are other lots immediately to the west. There is no alley or public thoroughfare to the rear of the four lots in question unless a strip 10 feet in width off the rear of said lots running from Arizona Avenue to the east and west alley constitutes a public alley, as claimed by plaintiffs.

The petition alleges that more than 11 years prior to the filing thereof, on February 21st, 1927, the west 10 feet of the four lots in controversy were set apart and appropriated for a public alley by the then owners thereof and for said length of time had been used as a public highway for traffic by the parties to the suit and other owners and occupants of said lots in traveling to and from their homes in carrying in coal and provisions, that for more than 11 years last past the owners on both sides of said alley built and maintained on each side thereof a fence, at all times leaving said alley open for public use until about May 1st, 1926, when defendant placed a building in the north end of said alley thereby closing it to traffic; that about 19 years before the filing of the petition one, Early, the then owner of the property in question "set apart the west ten (10) feet on each of said four lots, as so set off by him, for an alley, and right of way, for public use, and especially to accommodate the occupants of said four properties; and on each of such lots as so set off by him, he built a dwelling house, facing east on Pryor Avenue, and on the rear of each of said lots, as so set off by him, he built a garage and a coal house, and in the open spaces between such buildings he built a fence; so that the fence and outbuildings were set back ten (10) feet from the west line of said lots, as so set off by him; thus leaving the alley of ten (10) feet opening on the north end into Arizona Avenue, and on the south end opening into an alley extending east and west thru the center of said block; that the said Early, soon after building said houses and outbuildings, sold the four places; the middle places are now the properties of plaintiffs, and the north place on Arizona Avenue is the property of said defendant."

The facts show that about 25 years prior to the filing of said suit Early built four houses fronting on Pryor Avenue, one on each of the four lots in controversy, with coal sheds on each lot ten feet east of the west end of the same; that shortly afterwards he sold these lots by deeding the whole 100 feet, being the entire depth of each of said lots without mention of any alley or, in fact, without qualification, and that the subsequent owners of the lots likewise conveyed them; that Early and the subsequent owners at all times paid taxes upon the entire 100 feet depth; that these properties remained without fences until they were sold to what one of plaintiffs' witnesses referred to as "foreigners" or Roumanians; that when the Roumanians purchased the properties and moved in they enclosed their yards on all sides with fences which resulted in fences between the coal sheds. Plaintiffs purchased their property about 8 years before the trial and Alvrais 5 years prior to that time. When Alvrais bought he made certain that his lot had a depth of 100 feet but he testified that the property he purchased was not fenced until he bought it. However, there was testimony that all of these fences were built about 10 or 12 years prior to the trial which took place in February, 1927.

From the beginning the occupiers of the four lots, when entering or approaching their property with vehicles have come in from the rear. For 25 years before the trial the owners and occupants of the four lots in question, together with other members of the public, used the 10 foot spaces to the rear of the lots for vehicular and other traffic, but as the property to the west has at all times been very thinly built up the traffic, prior to 1923 or 1924, had not been confined to the 10 foot spaces to the rear of the four lots in question but the public used all of the vacant land in going to and fro in various directions, making pathways here and there.

About 3 or 4 years prior to the trial a fence was placed along the property line to the east of the four lots in question leaving a passage-way about 10 feet in width between Arizona Avenue and the east and west alley which ran through the center of the block. The city at no time made any improvements in the so-called alley or recognized it as a public thoroughfare. In the year of 1923 the city paved Arizona Avenue, and, at defendant's request, left an opening in the south curb of the street at the head of the ten foot strip in controversy so that defendant could put in a driveway and garage at the end of his lot which would be at the mouth of the so-called alley. On May 1st, 1926, defendant moved his shed or garage building back into the ten foot strip to the rear of his lot, thus closing the north entrance to the alley or passageway. However, the remainder of the passageway still remains open and connects with the east and west alley that runs through the center of the block, the ends of which east and west alley connect with public streets.

The theory upon which plaintiffs in their petition seek to establish that the 10 foot strip in question is a public alley is based upon its dedication to public use on the part of Early and the owners of the four lots in question prior to 11 years before the institution of the suit. Defendant denies that there has ever been such a dedication of the strip in question.

There may be a dedication of a street or alley for public use by express grant by common law dedication or by prescription or limitation. There is no pleading of dedication by grant or by prescription or limitation (2 C. J. pp. 259, 260; Smith v. City of Sedalia, 152 Mo. 283, 297, 298, 53 S. W. 907, 48 L. R. A. 711), so the only question to be determined is whether or not there was a common law...