Prudential Ins. Co. of America v. Kelley

• Court: Kansas Court of Appeals
• Writing for the Court: SHAIN, P. J.
• Citation: Prudential Ins. Co. of America v. Kelley, 233 Mo.App. 362, 120 S.W.2d 65 (Kan. App. 1938)
• Decision Date: 27 June 1938
• Parties: THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, RESPONDENT, v. JOHN W. KELLEY AND MARY KELLEY, APPELLANTS

120 S.W.2d 65

233 Mo.App. 362

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, RESPONDENT, v. JOHN W. KELLEY AND MARY KELLEY, APPELLANTS

Court of Appeals of Missouri, Kansas City

June 27, 1938

Appeal from Jackson Circuit Court.--Hon. Ben Terte, Judge.

Judgment affirmed.

J. K Owens for appellants.

(1) The judgment of the court is against the law and the evidence for the following reasons: (a) That the judgment of the court in holding that the deed created an easement upon that part of the driveway from the sidewalk to the building line, is against the law and the evidence. (b) That that part of the judgment holding that plaintiff acquired an easement over the driveway by prescription is against the law and the evidence for the reason that it was shown that the possession was not adverse, that it was not under claim of right, but was by permission. Seested et al. v. Applegate et al., 46 S.W.2d 796, l. c. 797; Ashbaugh v. Ashbaugh, 201 S.W. 72, l. c. 74; McMahill v. Schowengerdt, 183 S.W. 605, l. c. 606; Anthony v. Building Co., 188 Mo. 706; Courtner v. Putnam, 30 S.W.2d 126, l. c. 131; Stevenson v. Black, 168 Mo. 549, l. c. 561; McWilliams v. Samuel et al., 123 Mo. 659, l. c. 662; Field v. Marks, 125 Mo. 502, l. c. 516. (2) The court erred in holding that plaintiff had the right to maintain a suit for injunction when it, together with its tenants, had violated the right to the use of said easement, which by its own acts rendered the use of the easement improper. 19 Corpus Juris, pages 993, 950; Skraintka v. Oertel, 14 Mo.App. 474; Primm v. White, 162 Mo.App. 594, l. c. 606.

Wilkinson, Byrum & Gough, W. F. Wilkinson and W. Raleigh Gough for respondent.

(1) The location of the driveway by its construction, the subsequent creation of the easement by the deed to Lot 6, and the reservation of easement in the deed to Lot 5, together with the user of the driveway for thirteen years without protest or objection, operated to create and establish an easement over the driveway to the extent and in the manner alleged in plaintiff's petition. (a) The word "between," as used in these deeds, does not mean the driveway was located one-half on one lot and one-half on the other. Webster's International Dictionary; 7 C. J. 1146; Dunn v. English, 23 N.J. L. 126. (b) The deeds are to be construed beneficially in favor of the grantee of the easement and so as to give effect to the language used; if there is any ambiguity, parol evidence is admissible to explain the meaning of the language employed. Dunn v. English, 23 N.J. L. 126; Bernero v. McFarland Real Estate Co., 134 Mo.App. 290, 114 S.W. 531. (c) The deeds in this case, when taken into consideration with the circumstances of the parties at the time of their execution, and the practical construction of said deeds by the parties in making use of the driveway, were sufficient to create the easement alleged in plaintiff's petition. 19 C. J. 972-973; Geishman v. Trish, 163 Mo.App. 308, 143 S.W. 876; George v. Cox, 114 Mass. 382; Bannon v. Angier (Mass.), 2 Allen 128; Davis v. Watson, 89 Mo.App. 15; Riddle v. Jones, 199 Ky. 767; Alabama Corn Mills Co. v. Mobile Docks Co., 200 Ala. 126, 75 So. 574; Fulcher v. Dierks Lumber Co., 164 Ark. 261, 261 S.W. 645; Gerrish v. Shattuck, 128 Mass. 571; O'Brien v. Schayer, 124 Mass. 211; Peabody v. Chandler, 40 N.Y.S. 1028; Morris v. Blunt, 40 Utah 243, 161 P. 1127; Eureka Land Co. v. Watts, 119 Va. 506, 89 S.E. 986; Litchfield v. Boogher, 238 Mo. 472, 142 S.W. 302; McDonald v. Quick, 139 Mo. 498, 4 S.W. 208; City of Chicago v. Borden, 190 Ill. 430, 60 N.E. 915. (2) The trial court's finding and decree that plaintiff had acquired an easement by prescription is sustained by the evidence. (a) Appellants have abandoned the claim that there was no user for the statutory period. Shaw v. Sanitary Street Flushing Mach. Co. (Mo.), 213 S.W. 83; Thornbrugh v. Hall (Mo.), 263 S.W. 146; Zahm v. Royal Union Fraternal Union of St. Louis, 154 Mo.App. 70, 133 S.W. 374. (b) The evidence was sufficient to sustain the trial court's finding that there had been a continuous and uninterrupted user. 19 C. J. 881, et seq.; Sanford v. Kern, 223 Mo. 616, 122 S.W. 1051. (c) The user by plaintiff and its predecessors in title was not permissive, but was adverse and under claim of ownership. Novinger v. Shoop (Mo.), 201 S.W. 64; Graham v. Olson, 116 Mo.App. 272; 19 C. J. 890, et seq.; Gerstner v. Payne, 160 Mo.App. 289, 142 S.W. 794; Faulkner v. Hook, 300 Mo. 135, 254 S.W. 48; Meryl Realty & Inv. Co. v. Schumacher (Mo.), 264 S.W. 368; Schroer v. Brooks, 224 S.W. 53. (3) The evidence as to alleged misconduct on the part of plaintiff's tenants, etc., was insufficient to require the denial of injunctive relief. (a) This being a suit in equity, although heard de novo in the appellate court, great deference will be given to the findings of the trial chancellor, due to his superior opportunity to judge of the credibility of witnesses. Net Realty & Inv. Co. v. Dubinsky (Mo. App.), 94 S.W.2d 1108; Batson v. Peters (Mo.), 89 S.W.2d 46; McKinney v. Hutson, 336 Mo. 867, 81 S.W.2d 377. (b) The evidence was insufficient to show a real "burden" upon the easement. (c) Appellants did not raise such objections with respondent before proceeding to block the driveway. (d) Appellants, by reason of their own misconduct, cannot raise this defense. Greisinger v. Kleinhardt (Mo.), 9 S.W.2d 978; 19 C. J. 955; Primm v. White, 162 Mo.App. 595.

OPINION

SHAIN, P. J.

This is an appeal from the judgment of the Circuit Court of Jackson County, Missouri. The suit is for a mandatory injunction to compel the removal of certain obstructions to a common driveway between lots Nos. 5 and 6, Ellison Park (House Nos. 4237 and 4239 Mercier Street, respectively), in Kansas City, and to prohibit defendants from further obstructing such driveway. Judgment below was for plaintiff, and defendants have appealed.

We are confronted at the outset with a motion to dismiss the appeal. Reasons assigned being: (1) Failure to comply with our rule 16, as to clear and concise statement; (2) Failure to include in abstract all of the evidence, to-wit, twelve deeds introduced in evidence are not set out as required by our rule 14; (3) Failure to index the exhibits (deeds) or the pages as to where offers of deeds are shown, in violation of our rule 30.

There is merit in each of the above specifications. However, this court having regard for the interest of litigants, takes upon itself extra labor, and if we can cull from statements sufficient knowledge of the questions we are asked to review, we are not prone to dismiss appeal. In the present case we conclude not to dismiss the appeal on respondent's first specification.

As to specifications Nos. 2 and 3, the parts of the deeds going to the issues can be fairly gleaned from the record, and due to that fact and to the fact that the trial court has made of record such a clear and comprehensive finding of facts, we conclude to waive any of the defects pointed out in both specifications Nos. 2 and 3.

It appears from the evidence before us that one Margaret C. Clark, as a straw man holder of title for one James O. Wade, became the owner of lots Nos. 5 and 6, aforesaid, in the year of 1922. Thereafter the aforesaid parties made improvements of said lots Nos. 5 and 6 by erecting a duplex residence on lot No. 6 and a single residence on lot No. 5. It is further shown that said parties erected three garages in the rear of aforesaid property; one being on lot No. 5 and two upon lot No. 6. It is further shown that said parties constructed a driveway to the aforesaid three garages. It appears that said driveway at its entrance from the street was constructed at an angle from its beginning on the street and said driveway at its beginning was entirely constructed upon lot No. 5, angling therefrom for some distance until the driveway was constructed so that part was on lot No. 5 and part on lot No. 6, so as to give access to the three garages erected in the rear, as aforesaid.

It appears that on the 2nd of December, 1922, lot No. 6 was conveyed by Margaret C. Clark to J. J. Wermelskirchen and wife, and this deed, among other things, contained the following:

"Also an easement herewith granted for use of driveway between Lots 5 and 6 of Ellison Park, said easement carrying with it the privilege of each party as the owners of said Lots 5 and 6 to use all that portion of driveway in rear of said Lots 5 and 6 for the mutual convenience of each party thereto."

It further appears that on June 11, 1923, lot No. 5 was conveyed by Margaret C. Clark to Lucille Lenahan. The deed among other things, contained the following:

"Subject to an easement for the mutual use of the driveway between Lots 5 and 6, Ellison Park."

It further appears that by conveyance from Mr. Wermelskirchen and wife, title to lot No. 6 became vested in the respondent herein, plaintiff below.

It further appears that by conveyance from Lucille Lenahan to Mary Simpson, and from Mary Simpson to A. M. Schenck, and from A. M. Schenck to appellants, defendants below, they become vested in title to lot No. 5.

As before stated, the judgment in the circuit court was for plaintiff, respondent herein.

We have carefully read the record in this case and conclude that the findings of fact of the trial court are fully substantiated by the evidence and that the conclusions of law made by the trial court, all shown in the record, are in conformity with the laws of the State of Missouri, and we copy same in this opinion as follows:

". . . and the court doth further find That the plaintiff is the owner of lot 6, Ellison Park, an addition in and to Kansas City, Jackson County, Missouri, and that the defendants are the owners...