Seested v. Applegate

• Decision Date: 17 February 1930
• Docket Number: No. 16788.,16788.
• Citation: 26 S.W.2d 796
• Parties: SEESTED et al. v. APPLEGATE et al.
• Court: Missouri Court of Appeals

26 S.W.2d 796

SEESTED et al. v. APPLEGATE et al.

No. 16788.

Kansas City Court of Appeals. Missouri.

February 17, 1930.

Rehearing Denied April 7, 1930.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be officially published."

Action by Henry Seested and others against William Everett Applegate and another. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Downey & Downey, Frank E. Tyler, Watson, Gage & Ess, and Maurice J. O'Sullivan, all of Kansas City, for appellants.

Chas. A. McNeese and Ernest D. Martin, both of Kansas City, for respondents.

ARNOLD, J.

This is an action in equity whereby plaintiffs attempt to enjoin defendants from obstructing a driveway which it is alleged was laid out, constructed, and designed for joint use of the owners of lots 6 and 7 Dyer place, an addition to Kansas City, Mo.

It is learned from the record that Dyer place is an addition one block in length, lying on the west side of Tracy avenue and extending from Sixty-Third street north to Sixty-Second street in Kansas City, Mo. It appears that Henry Seested platted the block, built bungalows thereon, and sold them to purchasers. Plaintiffs Clara Dae Moore and Roy Moore, her husband, own lot 6 of said addition, and defendants William E. and Lydia M. Applegate are the purchasers and owners of lot 7 which adjoins lot 6 on the south thereof. Henry Seested was the common source of title, and, prior to the sale of said lots to the above-named plaintiffs and defendants, Seested designed a driveway which is a concrete strip driveway between the houses constructed on lots 6 and 7, and erected a single garage building on the rear of the lots to accommodate two cars. The said driveway leads into and furnishes an entrance to each unit of said garage.

This being an equity case, as required by law, we have read the entire record, and shall here determine the case de novo. It appears from the evidence that at the time the houses were built it was Seested's intention to locate the driveway half on each of lots 6 and 7. After the houses were built and the garage erected, it was learned the garage was more on lot 7 than on lot 6, and it was therefore moved so that the center of the garage was at the center of the driveway. The houses were offered for sale, and both were shown to defendants as prospective buyers. Mr. Seested testified he explained to defendants that the center of the driveway (which had been fully constructed), was about two feet more on lot 7 than on lot 6, and quoted the price of lot 7 at $50 less than lot 6 because of the location of the driveway. Defendants purchased lot 7 on September 27, 1924, and accepted a warranty deed therefor. On June 1, 1925, Seested sold lot 6 to plaintiff Clara Dae Moore, then Clara Dae Babcock. The Moores entered into possession of the property, and the driveway was actually used jointly by the respective owners of said lots, until about the time this suit was filed, about July, 1926. Along about this time defendants had their lot surveyed, when it was ascertained that all of said driveway, with the exception of about two and one-fourth inches, was on lot 7. Defendants then constructed some kind of a barrier and obstructed the driveway so as to deprive the Moores of the use thereof. The survey was introduced in evidence and also the deeds from Seested to the parties were introduced. The deed to Mrs. Babcock (now Mrs. Moore) dated June 1, 1925, contains the following:

"All of Lot Six (6) Dyer Place, an addition in Kansas City, Missouri, according to the recorded plat thereof, subject to driveway easement now of record."

There is no other reference in this deed to the driveway easement. But in the deed from Seested to defendants, dated September 27, 1924, we find the following reference to the driveway:

"The parties and their respective successors in title shall be entitled to use the driveway in common and the expense of constructing and maintenance of said driveway shall always be equally borne by the parties hereto, their respective successors in title, and assigns. Should the land hereby subject to this easement ever cease to be used as a driveway, then in such a case, the full right and title shall revert to the present owners or their respective successors in title.

"The driveway herein referred to is located partly on the south five feet of Lot Six (6) Dyer Place, and partly on Lot Seven (7) Dyer Place, on the north five feet thereof."

Plaintiffs brought this suit to establish their right to the "perpetual use of said driveway in common with the defendants."

Defendants file a motion to dismiss the appeal, on the following grounds: That plaintiffs have failed to include in their abstract presented here all of the evidence introduced at the trial, and the abstract therefore is not complete, as is required in equity cases. It is urged in the motion to dismiss the appeal that certain necessary pleadings are not included in the abstract of the record, namely: (1) The return to the order of the court to show cause; (2) the amended answer of respondents; (3) the actual and proper motion to dissolve the temporary injunction. But by a timely supplemental abstract the respondents have supplied the deficiencies of which they complain, and therefore we may not act affirmatively on the motion. It is therefore overruled.

Passing now to a consideration of the cause on its merits, it is noted that, after the discrepancy in the location of the driveway was discovered, Seested offered to convey to defendants eighteen inches off the north side of lot 8 which joins lot 7 on the south (which said lot 8, at that time, was owned by Seested), as a sort of remuneration for the excess land taken from the north side of the driveway, and that defendants refused this offer. There was testimony to the effect that between the house on lot 6 and the south line of lot 5, immediately to the north, there was a space of nine feet five inches upon which a driveway could be constructed. There was also testimony by which it was attempted to be shown this was impractical because of coal and fruit cellars, water pipes, etc. But in our opinion it was fairly shown that such a driveway on the north side of the house on lot 6 could be constructed without material damage to that property; so that any question of necessity for the driveway in controversy disappears from the case.

It is urged by defendants that Seested is not a necessary party to this action. We think this position is correct, as the testimony shows he had parted with all his right, title, and interest in lots 6 and 7; and any question as to his rights in the matter at issue is strictly moot. Therefore his offer to deed a strip of land on the north of lot 8 to defendants is out of the case.

The petition alleges transfer of title to the lots to plaintiffs Moore and defendants by Seested; that defendants accepted the deed to lot 7, with the easement as above indicated; that Seested retained ownership, possession, and enjoyment of lot 6, including the constant, peaceable, and uninterrupted use of the driveway in common with defendants for all appropriate purposes, until June 1, 1925, when he conveyed same to Clara Dae Moore by deed "subject to driveway easement now of record"; that Clara Dae Moore entered into possession thereof and enjoyed the uninterrupted use and enjoyment in common with defendants of said driveway until the date of filing the petition herein, except that the use of said driveway is now interrupted and interfered with as thereinafter stated; that, at the time defendants purchased said lot 7, the said driveway had been constructed as now located, and was open to inspection and view of defendants, and was inspected by defendants at that time; that plaintiffs since June 1, 1925, have openly, publicly,...