Peters v. Worth

• Decision Date: 28 June 1901
• Citation: 64 S.W. 490,164 Mo. 431
• Court: Missouri Supreme Court
• Parties: PETERS v. WORTH et al.<SMALL><SUP>1</SUP></SMALL>

64 S.W. 490

164 Mo. 431

PETERS v. WORTH et al.¹

Supreme Court of Missouri, Division No. 2.

June 28, 1901.

EASEMENTS — CONVEYANCES — APPURTENANCES — APPEALS — JURISDICTION.

1. Where, in a suit to restrain the obstruction of a stairway, plaintiff claims the use of it as an easement appurtenant to realty conveyed to him, the claim involves the title to realty, giving the supreme court jurisdiction of the appeal.

2. A deed to realty with the appurtenances, will not pass an easement of a stairway which was not erected when the conveyance was made, nor referred to therein.

3. A writing pertaining to the use of a stairway on defendant's land, abutting realty conveyed by him to plaintiff before the stairway was erected, was lost. By plaintiff's recollection of the agreement he was to have the use of the stairway as long as the building stood; but the other parties, who made the agreement for defendant, stated that plaintiff was to have the use of the stairway only so long as the parties to it agreed. Held, that the burden on plaintiff, in a suit to restrain the removal of the stairway, of showing an irrevocable license to use the stairway as long as the building stood, was not sustained.

Appeal from circuit court, Jasper county; J. D. Perkins, Judge.

Bill by Louis F. Peters against Gertrude Worth and another. From a decree in favor of complainant, defendants appeal. Reversed.

Cunningham & Dolan, for appellants. Clark & Craycroft and J. W. McAntire, for respondent.

GANTT, J.

A perpetual injunction was granted by the circuit court of Jasper county, enjoining and restraining defendants, their heirs and assigns, and all persons claiming by, through, or under them, or either of them, from closing up or obstructing a certain stairway between the three-story building belonging to Gertrude Worth on the corner of Fourth and Main streets in the city of Joplin, Mo., and a certain three-story building belonging to plaintiff, Louis F. Peters, immediately in the rear of Mrs. Worth's building and facing on Fourth street, in said city. From that decree Mrs. Worth and her husband appeal.

Prior to September 10, 1892, Mrs. Worth, then Mrs. Berz, was the owner in fee simple of lot No. 1 in the original town of Murphysburg, now in the city of Joplin, Jasper county, Mo. Prior to that date there was a three-story business building on the west part of said lot, being the corner of Fourth and Main streets, and she had a stairway running up from Fourth street to the second and third stories of said building at its east end. On the east 47 feet of said lot she had erected three one-story brick buildings facing on Fourth street; a space of about 6 feet being between her said three-story building and these one-story buildings on the east end of the lot. Some time in the latter part of August, according to plaintiff's story, Mrs. Berz had directed him as her general business agent to have these one-story buildings elevated to two-story buildings, and the work had commenced; but the second stories were not completed when, on September 10, 1892, Mrs. Berz gave him the three unfinished buildings. He says she had orally instructed him to have a stairway built on her vacant 6 feet between her three-story building, on the corner of Main, and the west end or side of his three buildings; but that stairway was not built, only a rough "horse" or platform temporarily erected. After the plaintiff obtained his deed to the lot and buildings, a hotel company urged him to make them three stories high, and agreed to take a lease on them. He then employed workmen and proceeded to run them up three stories high. After finishing his buildings he had a stairway built in the vacant 6 feet to accommodate his building, and also to enter the rear end of Mrs. Berz's building. He was at the time agent and manager of Mrs. Berz's affairs, handled her money, and signed her name. Mrs. Berz went to Baltimore and Virginia in November, before the buildings were completed, and remained five or six months. When she came home she was dissatisfied with the arrangement, and soon after discharged plaintiff as her agent, and appointed Dr. Balsley. It then appeared that Peters, who had been her clerk, held her note for $2,450, with interest past due for three or four years. She disputed this note, and, finding they were unable to agree, Balsley, acting for defendant Mrs. Berz and Peters, the plaintiff agreed upon Mr. Beirig to assist in adjusting their difficulty. They finally agreed that plaintiff should take her notes for $2,000; one note for $1,000, payable in a year, without interest, and the other $1,000 to bear interest. Plaintiff was to deliver up the $2,450 note and give Mrs. Berz a release of all demands. At this juncture plaintiff demanded that Mrs. Berz convey him 2 feet and 10 inches off of the east end of the 6-foot alley and stairway, and presented a deed which his attorney had prepared for that purpose; but Mrs. Berz refused to execute the deed. After further parleying a writing was drawn up giving plaintiff certain rights in said stairway. This writing was given to plaintiff, and at the trial it was lost. The principal difficulty in reaching a correct conclusion in this case arises out of the loss of this instrument.

The evidence is exceedingly unsatisfactory. Plaintiff testifies that the writing granted him the undisturbed right of way over this stairway to his second and third stories for himself and his tenants, so long as the building might stand. He could not, however, recall anything else in that writing. Balsley and Beirig conducted the settlement for Mrs. Berz, and Balsley wrote the instrument. Balsley says: "He [plaintiff] was to use the stairs so long as they agreed; he to keep up one-half of the repairs." He says, further, that plaintiff took the agreement to his lawyer, and when he came back it was interlined in pencil, and after Beirig looked at the interlineation it was so small he and Beirig...