Oliver v. Wilhite

• Decision Date: 21 November 1932
• Parties: K. Z. OLIVER, RESPONDENT, v. SARAH WILHITE ET AL., APPELLANTS
• Court: Kansas Court of Appeals

55 S.W.2d 491

227 Mo.App. 538

K. Z. OLIVER, RESPONDENT, v. SARAH WILHITE ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

November 21, 1932

Appeal from the Circuit Court of Cole County.--Hon. R. A. Bruer Special Judge.

AFFIRMED.

Judgment affirmed.

Irwin & Bushman for respondent.

D. W Peters for appellants.

BOYER C. Campbell, C., concurs.

OPINION

BOYER, C.

This is a proceeding in equity for relief by mandatory injunction. Plaintiff sought and obtained an order requiring defendants to remove an obstruction from a driveway located upon the adjoining lots of plaintiff and defendants. The petition describes the property owned by plaintiff and also that owned by the defendants and states:

"That the last described property was formerly owned by George Wilhite, now deceased, and that Arthur Wilhite, Sarah Wilhite and Belle Hall are now the owners of said land by inheritance from the said George Wilhite.

"Plaintiff further says that each of said tracts of land have a dwelling house located thereon and that there is a strip of vacant ground lying between the two houses, a part of which belongs to the plaintiff and a part of which belongs to the defendants; that during the lifetime of George Wilhite, that is to say about six years ago, this plaintiff and George Wilhite entered into an oral agreement whereby it was agreed that the said vacant space between said houses should be used by both parties for their mutual benefit and advantage by converting the same into a driveway so that automobiles could pass in and out to garages built by the plaintiff and also built by the said George Wilhite which had been erected back of their residential property; that in pursuance to said agreement this plaintiff contributed money and labor towards the building of a driveway therein and thereon and that ever since said time and for a period of more than six years this plaintiff and the said George Wilhite and those claiming under him have used as a common driveway and that this plaintiff has by reason of usage on the money and labor expended thereon and by reason, of the contract aforesaid acquired an easement in, over and along said driveway as it was then constructed by this plaintiff and the said George Wilhite during his lifetime.

"Plaintiff for his cause of action says that the defendants, each of them and their agents, servants and employees, are now erecting a post and wire fence along and upon said driveway so that the same cannot be used by this plaintiff in accordance with the terms of his said agreement with the said George Wilhite and that by reason of said fence so erected as aforesaid he is now and will continue to be unable to reach his said garage with his automobile; that he erected his said garage at great expense to himself at the place and in the manner it was erected because of his said agreement with the said George Wilhite and in reliance thereon and that unless he is permitted to use said driveway at the place and in the condition it was previous to being molested by the defendants he will suffer irreparable injury, for which he has no adequate remedy at law.

"Wherefore, the premises considered, plaintiff prays a mandatory order of this court directing the defendants and each of them, their agents, servants and employees, to remove the obstruction which they have now placed and are about to place in and along and upon said driveway, and for the order of this court enjoining and restraining the defendants and each of them, their agents, servants and employees, from longer detaining said obstruction in said driveway, and to show cause why they should not be permanently and perpetually enjoined and restrained from maintaining said obstruction in said driveway, and upon final hearing the plaintiff prays that the defendants and each of them, their agents, servants and employees, be enjoined from interfering with, obstructing said driveway by placing posts, wire or other obstructions whatsoever in said driveway so as to impede, hinder and obstruct the free and open enjoyment and use thereof by this plaintiff as a driveway; and for such other orders, judgments and decrees as to the court may seem meet and proper in the premises."

The temporary restraining order issued in the case was the following:

"It is, therefore, ordered, adjudged and decreed that the defendants and each of them, their agents, servants and employees, be and they are hereby required to forthwith remove from the driveway between the premises owned by the plaintiff and the premises owned by the defendants in the City of Jefferson, Cole County, Missouri, any and all posts, wire and other obstructions therein placed by the defendants, their agents, servants and employees, and hereafter refrain and desist from continuing said obstruction of said driveway until the further order of the court, and fail not at your peril."

Defendants filed timely demurrer to the petition partly on the grounds (1) that the petition shows upon its face that the plaintiff is not entitled to injunctive relief as prayed for or any relief, and (2) because the petition shows that the agreement claimed to have been entered into was oral and could not ripen into an easement, regardless of the lapse of time and the money spent by plaintiff in the construction of the driveway. The demurrer was overruled and the defendants declined to plead further. The court heard evidence offered by the plaintiff and at the conclusion thereof ordered and adjudged that the temporary injunction theretofore issued be made permanent. From that judgment defendants duly appealed and assign as error the ruling of the court on the demurrer for the reasons contained in it as heretofore set out, and insist in brief and argument that the right sought to be enforced is an easement over the land of defendants and that such an easement cannot be created by a verbal agreement and can arise only by...