Pitzman v. Boyce
| Decision Date | 02 July 1892 |
| Citation | 19 S.W. 1104,111 Mo. 387 |
| Parties | Pitzman, Appellant, v. Boyce et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Petition for injunction in order to prevent the defendants from removing certain sewer pipes and connections whereby plaintiff was enabled to drain his premises by arranging his pipes, so as to effect that purpose by means of a sinkhole on the defendant Boyce's lot. The other defendants are agents of said defendant, and employed by her to do the work of removal. Facts as follows:
Plaintiff is the owner of a lot of ground, two hundred and eighty-two feet in front on the east line of Compton avenue, extending eastwardly three hundred and sixty-six feet, and bounded north by Geyer avenue. Immediately east of plaintiff's lot the defendant owns a lot fronting one hundred and thirty-two feet on the south line of Geyer avenue, and extending southwardly beyond the south line of plaintiff's lot. The lot of the defendant, Mary E. Boyce constituted part of the estate of her mother, Octavia Boyce and was allotted to her in the partition of Mrs. Boyce's estate in 1879. On this lot of the defendant there is what is called a sinkhole which serves as a natural drain by means of an open subterraneous passage supposed to connect with the Mississippi river.
In 1868, the plaintiff commenced the erection of a stable in the rear of his lot, and finished it in 1869. Upon its completion he cut an open drain or ditch from the stable to the sinkhole on Mrs. Boyce's lot, for the purpose of draining his stable and the surface water into the same. In 1870, he erected his dwelling-house on his lot, and when this was completed he laid sewer pipe so as to drain both the house and stable, and carried these pipes over Mrs. Boyce's lot to the mouth of the cave. The sewer pipe was laid beneath the surface of the ground, or was covered slightly by heaping ground around and over it, but after a short time parts of the pipe were exposed so as to be visible to anyone going on the land.
Later in 1870, plaintiff joined with some of his neighbors who had erected houses in the neighborhood and put down a more substantial sewer, and at the same time constructed a stone inclosure around the cave in Mrs. Boyce's lot. This structure was made twelve or fifteen feet high above the surface of the ground, and it was plainly visible from that time forward until the spring of 1889, at which time it was three or four feet above the ground. It appears that this inclosure or chimney, as it is termed by the witnesses, was built so as to prevent the cave or opening from being filled or choked up, and that by the natural washing of the earth around it and from other causes the depression was gradually filled up around the chimney until only three or four feet remained visible, and these were finally filled up and a cover put over the chimney, so as to keep the cave and subterraneous passage below open.
In 1877, the plaintiff and others who were then using this drain raised the inlet of the sewer so used, and straightened the line of pipe, and at a considerable expense, of nearly $ 400 or $ 500, made a sewer system of the drain theretofore used, so that quite a number of houses were connected with it. And the inlet was again raised some time in 1880 or later.
Whatever was done on the premises of Mrs. Boyce, and after the partition of the lot of Miss Boyce, was done openly, and in such manner that anyone could see the acts; and the use of the drain or sewer and cave or inlet on the servient lot was such that anyone could see it or by any attention could learn of it without difficulty; and there is some evidence that this use was known to the city officials in the sewer and health departments. Neither the plaintiff nor any of the other house-owners who made use of this sewer and inlet or cave ever asked anyone's consent for this use; and until the summer of 1889 no one seems to have objected thereto. Mrs. Boyce resided not far from these premises.
Mrs. Boyce knew that the chimney had been built on her lot, and also the purpose thereof. Some time in 1874 or 1875, Mr. Pitzman informed her in a conversation at her house about their use of her property, and that they were all draining into her property, and she answered, "I hope you won't injure it." There is also evidence tending to prove that Miss Boyce, the defendant, through her agent, Mr. Carpenter, who had charge of the property, had actual notice of the use being made of her property by the plaintiff and others early in 1879. Although Mr. Carpenter never was the agent of Miss Boyce alone, he had charge of all the property as agent for all the heirs and acted as one of the commissioners in the partitioning of the estate. Mr. Pitzman was also one of the commissioners, and he seems to have pointed out the tower or chimney around the inlet when they were on the property in June or July, 1879. The commissioners did not consider the existence of this chimney and the fact that the surrounding houses were drained into this property as affecting its value.
In the summer of 1889, the defendants being about to sever the sewer connections and pipe running into the chimney around the cave on the property of Miss Boyce, plaintiff procured a temporary injunction to restrain her from disturbing the same, and on trial of the case the facts developed were substantially as above set forth. It also appeared in evidence that plaintiff's property has no connection with the sewer system of the city, and that until recently it was practically impossible to make any such sewer connection, and that to make such connection to-day would entail an expense of about $ 5,000 on plaintiff.
By reason of these facts, plaintiff claims to have acquired a right by prescription to continue the discharge of his sewage into the cave and subterraneous passage in defendant's land; defendants deny such right and claim that the temporary injunction should be dissolved.
The circuit court took the view contended for by defendant Boyce, dissolved the temporary injunction, dismissed the petition, and plaintiff appeals.
Affirmed.
Fred Wislizenus for appellant.
(1) Plaintiff had acquired an easement through adverse user. First. There arises a presumption that the user was adverse when it was continuous, open and notorious. Mebane v. Patrick, 1 Jones (N. C.) 23. Second. The evidence in the case shows that the user was in fact adverse. (2) If plaintiff's use was not adverse it was under license, and defendant's conduct in permitting plaintiff to improve his own property, and also to expend money on defendant's property, estops defendant from revoking the license, at least without tendering compensation. Allen v. Mansfield, 82 Mo. 688; Baker v. Railroad, 57 Mo. 265; Gibson v. Mech. Ass'n, 33 Mo.App. 178; House v. Montgomery, 19 Mo.App. 170; Fuhr v. Dean, 26 Mo. 116; Cook v. Pridgen, 45 Ga. 331; Campbell v. Railroad, 110 Ind. 492; Raritan Co. v. Vegt, 21 N.J.Eq. 463, 475; Ameriscoggan Bridge v. Bragg, 11 N.H. 102; Railroad v. McLanahan, 59 Pa. St. 23; Rhodes v. Otis, 33 Ala. 578; Wilson v. Chalpant, 15 Ohio 252; Russell v. Hubbard, 59 Ill. 335; Thompson v. McElarney, 82 Pa. St. 174; Renick v. Kern, 14 S. & R. 271; Addison v. Hack, 2 Gill, 223; Hodgson v. Jeffries, 52 Ind. 334.
E. T. Farish for respondents.
(1) Where it appears that the enjoyment of the right or the easement claimed, during any part of the time it is said to have been gained by user, was by permission of the owner of the land, the idea of its being adverse and as of right, and, therefore, an easement, is negatived. Washburn on Easements [3 Ed.] 40, 160; Blacke v. Everette, 1 Allen, 248; Carbery v. Willis, 7 Allen, 368; Colvin v. Burnett, 17 Wend. 568; Parker v. Foot, 19 Wend. 309; Hammefin v. Blake, 109 Mass. 297; Portmore v. Bann, 3 Dowl. & R. 145; Crippen v. Moores, 49 N.Y. 63; Marshall v. Trumbell, 28 Conn. 183; McGregor v. Wait, 10 Gray, 72; Cleveland v. Way, 97 Mass. 409; Partridge v. Scott, 3 M. & W. 320; House v. Montgomery, 19 Mo.App. 170. (2) There is nothing in the evidence to indicate the assertion of an independent or adverse right.
The correctness of the view taken by the lower court is now to be examined.
The question first to be determined in this case is whether the use was really adverse to the owner, or was it merely permissive in its character. If permissive in its inception, then such permissive character being stamped on the use at the outset will continue of the same nature, and no adverse user can arise until a distinct and positive assertion of a right hostile to the owner, and brought home to him, can transform a subordinate and friendly holding into one of an opposite nature, and exclusive and independent in its character. Budd v. Collins, 69 Mo. 129; Estes v. Long, 71 Mo. 605; Wilson v. Lerche, 90 Mo. 473, 2 S.W. 799; Wilkerson v. Thompson, 82 Mo. 317. It is true that the cases just cited relate to adverse possession in the ordinary way; but the principle is the same in either case.
Though the statute of limitations has no reference to easements, yet, where a party has enjoyed an easement for such length of time as to confer title to land from the true owner to a disseizor, this adverse enjoyment will in law establish the right to the easement as against the owner of the serviente state. Wood on Nuisances, sec. 704; House v. Montgomery, 19 Mo.App. 170; State v. Walters, 69 Mo. 463; State v. Wells, 70 Mo. 635; State v. Proctor, 90 Mo. 334, 2 S.W. 472.
And such adverse user for the statutory period will give origin to the rebuttable legal presumption of a grant, even though the use in its inception was a trespass. Wood on Nuisances, secs. 704, 705.
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