Oliver v. Wilhite

• Citation: 45 S.W.2d 1083
• Decision Date: 20 January 1932
• Docket Number: No. 31341.,31341.
• Parties: K.Z. OLIVER v. SARAH WILHITE, ARTHUR WILHITE and BELLE HULL, Appellants.
• Court: Missouri Supreme Court

45 S.W.2d 1083

K.Z. OLIVER v. SARAH WILHITE, ARTHUR WILHITE and BELLE HULL, Appellants.

No. 31341.

Supreme Court of Missouri, Division One.

January 20, 1932.

Transferred from Kansas City Court of Appeals.

RETRANSFERRED TO KANSAS CITY COURT OF APPEALS.

D.W. Peters for appellants.

Irwin & Bushman for respondent.

RAGLAND, J.

This is a suit in equity wherein the plaintiff seeks injunctive relief only. The petition after particularly describing certain premises owned by plaintiff and then certain others owned by defendants proceeds as follows:

"That the last described property was formerly owned by George Wilhite, now deceased, and that Arthur Wilhite, Sarah Wilhite and Belle Hull 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 defendant, 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...