Mulrooney v. Obear
| Decision Date | 03 February 1903 |
| Citation | 71 S.W. 1019,171 Mo. 613 |
| Parties | MULROONEY, Appellant, v. OBEAR et al |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Circuit court judgment affirmed.
John R Warfield and F. A. Heidorn for appellant.
(1) The court erred in rejecting the testimony in reference to transactions between defendant Obear and Chew in reference to sale of property purchased by Chew. High on Inj. (2 Ed.) sec. 748, sec. 1549, p. 1178; Kerr on Inj. (2 Ed.), sec. 25, p. 25; Michael v. St. Louis, 112 Mo. 610; 7 Am. and Eng. Ency. of Law, 18; Midland L. Co. v. Kruger, 52 Mo. 418; Longworth v. Aslin, 106 Mo. 155; Pelkinton v. Ins. Co., 55 Mo. 172. (2) Plaintiff's deed conveyed the Hodiamont company's full title to the water and sewer pipes and meter, subject only to the like use and enjoyment of their privileges by other property-owners of the subdivision. 3 Washb. Real Prop. (3 Ed.), 338, 340; 3 Washb. Real Prop. (5 Ed.) 419, sec. 627; Tiedeman on Real Prop. (2 Ed.), 842; Williams on Real Prop. (17 Ed.), 478, 483, 689; Washb. on Easement and S. (4 Ed.), 40; 1 Am. and Eng. Ency. of Law, 641 to 645; Curry v. Smith, 54 Mo. 515; Railroad v. Maffitt, 94 Mo. 56; Wilson v. Beckwith, 117 Mo. 61; Daniels v. Cit. Sav. Inst., 127 Mass. 534; Philbrick v. Ewing, 97 Mass. 133. (3) The deed should be construed most strongly against the grantor, and in the light of the surrounding circumstances under which it was made. Clemens v. Rannels, 34 Mo. 579; Nelson v. Brodhack, 44 Mo. 596; Jones v. De Lassus, 84 Mo. 541. And the acts of the parties for a series of years are admissible in its construction. Jones v. De Lassus, supra. (4) The deed of transfer of the Hodiamont company to defendant Obear conveyed no title, and is void as to plaintiff and his associate property-owners acquiring prior to the recording of the conveyance. Secs. 2395, 2418, 2419, 2420, 2431 and 2399, R. S. 1889; 3 Washb. Real Prop. (3 Ed.), 254, 257; 5 Am. and Eng. Ency. of Law, 445; Green v. Yarnell, 6 Mo. 326; Fontaine v. Boatmen's Bank, 57 Mo. 552; Turner v. Carpenter, 83 Mo. 333; Saunders v. Blythe, 112 Mo. 1; Standiford v. Standiford, 97 Mo. 231; Huey v. Huey, 65 Mo. 689; Ebersole v. Rankin, 102 Mo. 488; Crowder v. Searcy, 104 Mo. 201; Allen v. De Groodt, 105 Mo. 442; Hall v. Hall, 107 Mo. 101; Cravens v. Rossiter, 116 Mo. 338; Rumsey v. Otis, 133 Mo. 85.
Richard A. Jones, Chas. R. Crouch and Zach. J. Mitchell for respondents.
(1) Appellant appears as a member of a so-called voluntary, unincorporated association, not as a trustee for it. All claiming relief must be parties, and if plaintiff seeks to try the title of this water system in this proceeding, there is a defect of parties plaintiff. Grocer Co. v. Crow, 36 Mo.App. 288. (2) Appellant makes no tender for the water of respondent which he has used, nor for that which he will continue to use, and, under the maxim that he who would have equity must do equity, has no standing. Daniel v. Waterworks Co., 48 Mo.App. 273; Johnson v. Duer, 115 Mo. 366. (3) An easement can be created only by deed or adverse user for statutory period. Fuhr v. Dean, 26 Mo. 116. (4) Conceding that appellant acquired an easement to have water furnished him upon making payment for it, he did not acquire title to the waterworks system itself. Tatum v. St. Louis, 125 Mo. 648; Ellinger v. Railroad, 112 Mo. 526.
A temporary injunction was granted in this case by the probate judge of St. Louis county, during the temporary absence of the circuit judge. Afterwards, on a full hearing, Judge Hirzel dissolved the injunction, and from that judgment plaintiff appealed. The appeal was certified to the St. Louis Court of Appeals, and owing to a dissent of one of the judges the cause has been transferred to this court. This proceeding was begun June 22, 1897, and its purpose was to obtain a perpetual injunction against defendants restraining them from discontinuing or shutting off plaintiff's water service. Defendant Deavers is a mere nominal party, being the agent of Obear, his co-defendant.
The petition in substance states the following facts:
In September the Hodiamont Realty Improvement Company, a corporation organized and existing under the laws of this State, platted a subdivision of land in St. Louis county, immediately west of and adjoining the city of St. Louis, and named it "Hodiamont" and recorded the plat. To better enable it to sell its lots the said realty company obtained permission of the road overseer and laid a water-supply pipe in a public road known as Maple avenue, and by permission of the city authorities of St. Louis connected said pipe with the city waterworks, and put in a large water meter at the point of connection, just inside the city limits. In selling off its lots it reserved certain strips of land as alleyways, and in these alleys it laid service water pipes, which it connected with its supply pipe in Maple avenue, and also constructed sewers, and made the necessary connections with the water system.
After this water system had been laid, it constructed a house on parts of lots 96 and 97 in Hodiamont, and sold and conveyed said house and the ground on which it was erected to the plaintiff, Mulrooney, "together with all rights, privileges, immunities and appurtenances," by general warranty deed. The premises were afterwards connected with the water system, and plaintiff received his water supply from the city waterworks. Other lots were sold and the buildings connected with the service pipes and water supplied from the city waterworks.
In 1893, the company having disposed of all its lots, wound up its affairs and formally relinquished its charter. Before doing so, however, it sold to defendant Obear, who was one of its incorporators and stockholders, the water pipes and mater and all appurtenances by written bill of sale.
The city charged one hundred and sixty-five dollars for six months' supply of water to the subdivision, and by a mutual understanding this amount was distributed among the several householders in the subdivision, and it was collected through a voluntary association of the citizens and paid to the city. This course was pursued until June, 1897, when Obear, the defendant, asserted his right to control the pipes and in a contest between him and the citizens the city water commissioner recognized Obear as the owner and issued the license to him and he paid the tax. Thereupon, he assessed the tax on the citizens of Hodiamont at the same rate as that charged by the city. The plaintiff Mulrooney refused to recognize Obear's right, and refused to pay his water tax, and Obear having threatened to shut off his water unless he paid, Mulrooney brought this suit to enjoin him from so doing.
In his bill he alleges that Obear and Deavers have no rights in said water meter, sewer or water pipes or any of them, and have no right to control or manage the same as against plaintiff and the other property-owners of the subdivision; that his threatened interference will work irreparable damage to plaintiff and other property-owners and they have no adequate remedy at law.
Obear in his answer pleaded his ownership of the water pipes and meter, and his right to manage the same and charge for the water. He alleged that his charges were reasonable, being the same as those imposed by the city.
In his reply plaintiff denied Obear's purchase and title to the meter and pipes, and alleged that at the time he claimed to have bought them, the realty company had disposed of all its property and yielded up its charter. He further averred that by its deeds the realty company had conveyed a common and exclusive right to use said water pipes and meter to the grantees in its said several deeds.
It is obvious not only from the pleadings but the contentions of counsel and the opinions of the circuit court and the Court of Appeals, that the one issue after all is, who owns and has the right to control the said meter and water supply pipes?
On the part of plaintiff it is insisted that the right is a common one belonging to the aggregate body of property-owners in Hodiamont, and any one of them can sue for himself and all the others to enjoin an interference with this right. Whereas Obear asserts that after the execution of the deeds to the lots the realty company continued to own the meter and water pipes and was obligated only to permit the several owners to connect therewith and receive a supply of water at reasonable rates.
If the realty company had not conveyed the meter and water pipes by its deeds, then Obear's purchase vested them in him. The meter and pipes were personalty and the bill of sale was sufficient to transfer the meter and supply pipes. It was not at all essential to its validity that it should be acknowledged or recorded, and the finding of the circuit court that the transfer was made, is supported by the evidence.
The plaintiff's rights have not been seriously endangered by the action of Obear, as it is clear he could have continued to receive his water supply by paying the usual and regular city rates therefor, which were not shown to have been in excess of his...
To continue reading
Request your trial