Sands v. Kansas City

• Decision Date: 18 February 1918
• Citation: 202 S.W. 294,199 Mo.App. 13
• Parties: EDITH SANDS, Respondent, v. KANSAS CITY, Defendant, THOMAS H. BROUGHAM, Appellant
• Court: Kansas Court of Appeals

202 S.W. 294

199 Mo.App. 13

EDITH SANDS, Respondent, v. KANSAS CITY, Defendant, THOMAS H. BROUGHAM, Appellant

Court of Appeals of Missouri, Kansas City

February 18, 1918

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED.

Judgment affirmed.

Harding Murphy & Harris and M. M. Bogie for appellant.

G. B Silverman and J. F. O'Sullivan, for respondent.

OPINION

BLAND, J.

This was an action for personal injuries against the defendant Thomas H. Brougham, and Kansas City, Missouri. There was a verdict in favor of the city but against defendant Brougham in the sum of three thousand ($ 3000) dollars, and the latter has appealed.

The petition alleged that on the 9th day of October, 1915, the defendant Brougham was the owner of premises in Kansas City, Missouri, known as 1414 Washington Street; that under the sidewalk in front of said premises said defendant maintained a cellarway or coal hole; that the same had a covered opening in the sidewalk above into which plaintiff fell by reason of the cover giving way while she was walking along and over said sidewalk; that the sidewalk at the place where said opening existed was rotton, decayed and badly out of repair; that by the exercise of ordinary care said defendant could have discovered such defective condition and by due care could have had time to remedy the same after the discovery and before the accident. Defendant Brougham filed an answer alleging that plaintiff and her husband rented the premises known as 1414 Washington Street, in Kansas City, Missouri, together with the cellarway or coal hole; that they were said defendant's tenants at the time of the alleged injury to plaintiff, and that it was the duty of plaintiff or her husband to have kept it in repair.

This defendant urges that his demurrer to the evidence should have been sustained. On the part of plaintiff the evidence shows that the house known as 1414 Washington Street in Kansas City, Missouri, consisted of two stories and a basement, and that plaintiff rented of defendant Brougham the first floor and basement. Plaintiff testified that she rented nothing but the first floor and basement; that nothing was said in reference to any coal cellarway by anyone at the time she rented the premises; that prior to her injury she knew nothing of the presence of the coal cellarway or the cover on the coal hole; that the coal cellarway and cover were not in a position where she could have anticipated their presence, or would ordinarily have discovered them. The coal cellarway did not connect directly with the basement; it had a doorway but the door itself was gone, connecting it with an area way made primarily for the purpose of allowing a basement stairway, which was constructed from the sidewalk to the basement door on the outside of the house. The opening into the coal cellarway opened into this area way and the area way was connected to the street by the stairway and to the basement by the basement door. The entrance to the coal cellarway was about three steps from the basement door.

Plaintiff rented these premises on July 2, 1915, but did not take possession until July 6th of that year. She had occupied this and another portion of the premises for nearly a year prior to her injury. She testified that she seldom went out into the area way in front of the basement or used the stairs to the street as the stairs were "rickety," and she was afraid to use them. She stated, however, that she had been out into this area way and had seen a dark space which she found out after the accident to be an entrance to the coal cellarway, but there was nothing in the dark space to indicate to her that there was an opening that ran under the sidewalk where she fell.

On the part of this defendant, his agent testified that when plaintiff rented the premises nothing was said in reference to the coal cellarway but that he understood that the coal cellarway went with the basement and that plaintiff rented it along with the premises actually mentioned. In connection with this defendant's contention that his demurrer to the evidence should have been sustained, he urges that while the coal cellarway was not mentioned at the time the premises were rented that it constituted an appurtenance to the premises, and for that reason although the coal cellarway was not mentioned it was covered in the rental. That plaintiff's husband having rented the coal cellarway, it was his duty to keep the same, together with the coal hole opening and cover, in repair and not the duty of this defendant. And in connection with this point defendant points out that no one but this tenant had any right to the use of the basement and the area way into which the coal cellarway opened, and that plaintiff had the right to the exclusive use of the coal cellarway if she had known it was there and had desired to use it.

As to what constitutes an appurtenance is not always easily ascertainable. The rule in relation to what is included as appurtenances, not mentioned in the leasing of premises, is stated in Barrett v. Bell, 82 Mo. 110, 114:

"In a well considered case in the court of appeals of New York it was said 'Easements exist as appurtenant to a grant of lands, and as arising by implication, only by reason of a necessity to the full enjoyment of the property granted. Nothing passes by implication, or as incident or appurtenant to the lands granted, except such rights, privileges and easements as are directly necessary to the proper enjoyment of the granted estate. Upon the grant of a mill, every right necessary to the full and free enjoyment of the mill, passes as incident to the grant; and the necessity measures the extent and duration of the right. . . . When the necessity ceases, the rights resulting from it cease. A mere convenience is not sufficient to create or convey a right or easement, or impose burthens on lands other than those granted, as incident to the grant. In all cases, the question of necessity controls.' [Ogden v. Jennings, 62 N.Y. 526, 531, and case cited, 531, 532.] . . .

As the evidence in this case does not show the use of the kettle was a 'necessity' this fact deprives such use of the chief attributes of an appurtenance. 'It was a matter of ease and convenience only,' which having arisen by mere consent of the parties, could be destroyed by withdrawing that consent at any time. [Grant v. Chase, supra; Johnson v Jordon, 2 Met. 234.]" [See also Mulrooney v. Obear, 171 Mo. 613,...