Polich v. Hermann
| Decision Date | 19 April 1949 |
| Docket Number | 27507 |
| Parties | POLICH et al. v. HERMANN et al |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
A. U Simmons and Edwin Rader, both of Clayton, for appellants.
Vernon C. Oetting and Ernest L. Keathley, both of St. Louis, for respondents.
McCULLEN
This suit in equity was brought by respondents as plaintiffs to enjoin and restrain defendants from obstructing a driveway easement over the south 7 1/2 feet of defendants' property adjoining the south line thereof. Said easement and an easement over the north 7 1/2 feet of plaintiffs' property adjoining the north line thereof together constitute a driveway 15 feet wide from north to south between the two properties. Lengthwise, the driveway begins at Graham Street on the west and extends eastwardly between the dwelling houses of the respective parties parallel with the rear or north line of plaintiffs' house and the side or south line of defendants' house and ends at the eastern line of their respective properties. There is no dispute as to the ownership of the two pieces of property. After a trial the court rendered a judgment, also called decree, for plaintiffs and defendants duly appealed.
Plaintiffs' property fronts on the north side of Wade Avenue at the intersection of Wade Avenue and Graham Street in the City of St. Louis. It is known as 6215 Wade Avenue. Defendants' property fronts on the east side of Graham Street immediately north of plaintiffs' property. It is known as 1404 Graham Street. Wade Avenue runs east and west. Graham Street runs north and south. The north or rear line of plaintiffs' property and the south or side line of defendants' property constitute the middle line of said driveway between the two properties.
It is conceded by the parties that the northern 7 1/2 feet of plaintiffs' property is subject to an easement of record in favor of defendants for driveway purposes and that there is a similar easement of record in favor of plaintiffs as to the southern 7 1/2 feet of defendants' property.
Plaintiffs alleged in their petition that defendants encroached upon and appropriated a portion of plaintiffs' property by refusing to comply with the easement over the 7 1/2 feet of defendants' property, and that defendants also appropriated to their own use the northern 7 1/2 feet of plaintiffs' property. Plaintiffs prayed for an injunction and for $ 500.00 damages against defendants.
Defendants filed an answer and cross-bill in which they admitted the ownership of the properties and the existence of the mutual easements as stated in plaintiffs' petition, and alleged that plaintiffs were guilty of appropriating defendants' property and encroaching thereon in a manner similar to the manner charged in plaintiffs' petition against defendants. Defendants also prayed for an injunction against plaintiffs, permanently enjoining plaintiffs from encroaching upon and appropriating to their use any part of defendants' property, and particularly the southern 7 1/2 feet thereof. Defendants also prayed $ 500.00 damages against plaintiffs.
Plaintiffs answered defendants' cross-bill with a general denial and later filed a 'Supplemental Bill For Injunction' and alleged therein that since the filing of the original suit defendants had placed certain rock, dirt and gravel upon the easement in such form and manner as to cause surface water to accumulate in large quantities and be discharged in abnormally large quantities upon plaintiffs' property and that defendants refused to remove said rock, dirt and gravel or to cease and desist from said wrongful accumulation; that said surface drainage water so accumulated has overflowed and still overflows into the basement of plaintiffs' dwelling house carrying with it dirt and debris. In said supplemental bill plaintiffs again prayed for injunctive relief and for $ 500 damages against defendants. Defendants filed a 'Supplemental Answer' in which they moved the court to dismiss plaintiffs' supplemental bill on the ground that the supplemental relief asked for by plaintiffs was separate and distinct from plaintiffs' original bill for injunction and that there were, therefore, two distinct petitions praying for relief against defendants.
It appears that the cause came on for hearing in the Circuit Court at which time the parties and their respective counsel entered into a written agreement in which the parties mutually promised to do certain things and to refrain from doing certain things in order that the controversy might be amicably settled and the suit be dismissed instead of being tried at that time. The cause was continued on the docket of the court, but thereafter plaintiffs filed their supplemental bill above referred to, and the cause was tried by the Circuit Court resulting in a judgment for plaintiffs. Later said judgment was set aside by the court, and defendants' motion for a new trial was sustained. Thereafter the cause finally came on for trial and resulted in the judgment and decree from which this appeal was taken. The agreement above referred to was introduced in evidence by plaintiffs in the last trial as their Exhibit No. 5.
The important parts of the agreement referred to in the evidence, after describing the parties and the respective properties, as well as the mutual easements on the driveway parts thereof, and stating that controversies had arisen as to the respective rights, duties and liabilities of the parties in relation to the easements, then provided that each party shall 'forthwith cease and desist from any encroachment upon, or appropriation of' the property of the other party and shall remove any and all obstructions on the driveway easements. The agreement further provided that the driveway 'shall be surfaced with crushed rock, where needed, in order that automobiles, and motor trucks may have ingress and egress over and upon the said Easements, and that proper drainage will be provided to insure that the surface water will drain away from the center line of the said Easements.' The agreement further provided: 'that each of the parties hereto shall construct and surface their respective property subject to said Easements heretofore mentioned, at their respective costs.'
It was further provided in the agreement that all the promises and undertakings of the parties 'shall be finished and completed not later than July 18, 1945.' The agreement went on and provided: 'should either of the parties hereto fail and refuse to finish and complete the promises and undertakings embraced in this agreement,' then said promises and undertakings 'shall be incorporated in and made a part of a decree to be entered by the Circuit Court of the City of St. Louis, State of Missouri, in a certain cause now pending in Division Number 3 of said court, being cause Number 84008, in which Ivan Polich and Mary Polich, parties of the first part herein, are plaintiffs, and Gus Hermann and Mary Hermann, parties of the second part herein, are defendants.'
The cause referred to in the above agreement is the cause now before us on appeal. The agreement further provided that upon the completion by the parties of all the promises and undertakings embraced therein, the cause pending in the Circuit Court should be dismissed and the costs thereof borne 50% by each party.
The agreement was signed by Ivan Polich and Mary Polich as parties of the first part and Gus Hermann and Mary Hermann as parties of the second part. It was also signed by the counsel of the respective parties.
This being an equity case, the applicable rule is that although we should give due deference to the ruling and finding of the trial judg, it is nevertheless our duty to review all the evidence and finally reach our own conclusions on both the facts and the law. Connell et al. v. Jersey Realty & Investment Co., 352 Mo. 1122, 180 S.W.2d 49; Shaw v. Butler, Mo.Supp., 78 S.W.2d 420; State ex rel. Wallach et al. v. Raeder et al., Mo.App., 196 S.W.2d 19.
Only three witnesses testified at the trial, namely, plaintiff, Ivan Polich, and defendants, Gus Hermann and Mary Hermann. Plaintiff, Ivan Polich, testified that when he moved to his property in 1942, which was about five years before the last trial in the Circuit Court, the driveway was not sloped either way; that it was level straight across; that about two years before the last trial defendants had placed three loads of dirt on their side, the north side, of the driveway to raise it up; that after that dirt was put on the north side of the driveway, it was seven or eight inches higher than it was at the line midway between the two side lines of the driveway, which the witness referred to as the 'center line'; that this caused surface water to drain toward the house of plaintiffs and run into their basement.
Said plaintiff further testified that the sewer drain at the southeastern corner of defendants' house was not low enough to permit surface water and drippings from the eaves of defendants' house to flow into such drain; that the mouth of such drain was about four inches above the ground and that the water coming through the downspout on defendants' house at that point collects on that part of the driveway, increasing the flow of the surface water, which is further increased by the materials placed on their side of the driveway by defendants, thereby causing a slope toward plaintiffs' side of the driveway; that this condition caused the water to flow onto plaintiffs' property and into their basement; that rock and dirt were allowed by defendants to accumulate on their side of the driveway, and that defendants had also allowed a heavy growth of weeds to accumulate thereon, and that during heavy rains this debris washed down upon plaintiffs...
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