Oliver v. Wilhite

• Decision Date: 04 May 1931
• Docket Number: No. 17167.,17167.
• Citation: 41 S.W.2d 825
• Parties: OLIVER v. WILHITE et al.
• Court: Missouri Court of Appeals

41 S.W.2d 825

OLIVER v. WILHITE et al.

No. 17167.

Kansas City Court of Appeals. Missouri.

May 4, 1931.

Appeal from Circuit Court, Cole County; R. A. Breuer, Special Judge.

"Not to be officially published."

Suit by K. Z. Oliver against Sarah Wilhite and others. Judgment for plaintiff, and defendants appeal. On plaintiff's motion to transfer cause to the Supreme Court.

Motion sustained, and the cause transferred to the Supreme Court.

D. W. Peters, of Jefferson City, for appellants.

Irwin & Bushman, of Jefferson City, for respondent.

ARNOLD, J.

This is a suit in equity whereby plaintiff sought by injunction to restrain defendants from closing a driveway lying partly on the land of plaintiff and partly on land of defendants, and which plaintiff had been using as a driveway for a period of more than six years, pursuant to an alleged oral agreement with the father of defendants.

Plaintiff and defendants own adjoining lots in the 600 block, facing Madison street in Jefferson City, Cole county, Missouri, on each of which is located a dwelling house, and between the two houses is a strip of vacant ground. Plaintiff did not purchase the land from defendants nor from any one under whom they hold. Plaintiff claims that between six and seven years prior to the institution of this action, he and the father of defendants, who then owned the land occupied by defendants, entered into an oral agreement for plaintiff to construct a driveway from Madison street, between their respective houses, to a point in the rear of their lots where plaintiff afterwards constructed a garage joining one built by defendants' father. Plaintiff alleges he furnished the material and labor for the construction of the driveway and incurred expenses in building his garage which is located at a point where it would be of no use to him if he could not use the driveway. Plaintiff further alleges George Wilhite, with whom he made the agreement about the driveway, has since died, and that his heirs, at the time this petition was filed, were constructing a fence which operated to shut him off from the use of such driveway; and that by reason of the facts stated he had acquired an easement over the land of defendants, and sought a restraining order to prevent the injury they were about to do him.

The restraining order was issued, conditioned upon the execution of a proper bond, which thereafter was presented and approved on October 1, 1930, and served on the same day. Defendants were granted a change of venue from the regular judge of the circuit court and the judge of the Thirty-Fourth judicial circuit was called to try the case. Defendants interposed a general demurrer which was overruled, and thereafter defendants refused to plead further. After the demurrer was overruled and over objections of defendants, plaintiff introduced evidence in support of his petition. The court found the issues for plaintiff and ordered the temporary injunction made permanent, and from this order defendants effected a timely appeal to this court.

We are confronted with a motion by plaintiff to transfer this cause to the Supreme Court, on the ground that the action involves title to real estate. Const. Amend. 1884, § 5. In support of this motion plaintiff suggests the action is to restrain defendants from obstructing a driveway over which plaintiff claims an easement by reason of "usage and money and labor expended thereon, and by reason of a contract for such easement."

We have examined the citations of contesting parties and are of the opinion the jurisdiction of this appeal lies in the Supreme Court. It is apparent the granting or...