State ex rel. Appel v. Hughes

• Decision Date: 06 July 1943
• Docket Number: 38383
• Citation: 173 S.W.2d 45,351 Mo. 488
• Parties: State of Missouri at the Relation of Victor R. Appel and Bessie W. Appel, his wife, Relators, v. William C. Hughes, Edward J. McCullen, and Lyon Anderson, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

173 S.W.2d 45

351 Mo. 488

State of Missouri at the Relation of Victor R. Appel and Bessie W. Appel, his wife, Relators, v. William C. Hughes, Edward J. McCullen, and Lyon Anderson, Judges of the St. Louis Court of Appeals

No. 38383

Supreme Court of Missouri

July 6, 1943

Rehearing Denied July 20, 1943.

Opinion and record of Court of Appeals quashed in part.

Cobbs Logan, Roos & Armstrong for relators.

(1) On certiorari the Supreme Court will determine whether the opinion of the Court of Appeals (a) runs counter to the decisions of the Supreme Court on the general principals of law, or (b) announces a ruling contrary to that of the Supreme Court under a like or similar state of facts, or where the facts are analogous. State ex rel. v Reynolds, 287 Mo. 169; State ex rel. v. Reynolds, 289 Mo. 506; State ex rel. v. Allen, 294 Mo. 214; State ex rel. v. Trimble, 250 S.W. 384. (2) In establishing a conflict between the opinion of the Court of Appeals and the decisions of the Supreme Court, relator is not required to point out "grey mule cases" as to the facts. It is sufficient that on a given state of facts the holding of the appellate court contravenes well established holdings in law or equity announced by the Supreme Court on similar facts. State ex rel. v. Ellison, 271 Mo. l. c. 474, 196 S.W. 1088. (3) And the Supreme Court is not confined, after taking jurisdiction, to points in conflict set forth in the petition for certiorari, but will consider all conflicts, whether suggested by relator or not, the purpose of certiorari being to secure uniformity in opinion and harmony in the law. State ex rel. Vulgamotte v. Trimble, 300 Mo. l. c. 101, 253 S.W. 1014; State ex rel. Insurance Co. v. Allen, 313 Mo. l. c. 405. (4) The Supreme Court, on certiorari to review the decisions of a Court of Appeals, has the right to determine whether the language of a written instrument is unambiguous for the purpose of deciding whether the Court of Appeals' opinion violates controlling decisions of the Supreme Court. State ex rel. Metropolitan Life Insurance Co. v. Allen, 85 S.W.2d 469; State ex rel. Mutual Life Ins. Co. of New York v. Shain, 126 S.W.2d 181. (5) A man cannot have an easement on his own property, and when an easement and the fee are owned by the same person, the two merge and become one, and the easement is merged into the fee. Bales v. Butts, 274 S.W. 679; Gardner v. Maffitt, 74 S.W.2d 604. (6) Where the seller of land, in his deed, reserves unto himself a right-of-way to be used only as a walk for pedestrians, applies only to him, and the purchaser of the land is vested with full dominion and use thereof so long as he does not interfere with a reasonable enjoyment of the easement. Stotzenberger v. Perkins, 58 S.W.2d 983; Campbell v. Kuhlmann, 39 Mo.App. 628; Schroer v. Brooks, 224 S.W. 53. (7) Where the seller of land, in his deed, reserves unto himself a right-of-way to be used only as a walk for pedestrians, the purchaser of the fee, upon which said easement was imposed, could, under said reservation, use said easement as a private roadway for automobiles. Schroer v. Brooks, 224 S.W. 53.

Luther Ely Smith, Luther Ely Smith, Jr., Victor R. Harris and Harold C. Hanke for respondents.

(1) The burden is on relators to establish conflict. State ex rel. Gatewood v. Trimble, 333 Mo. 297, 62 S.W.2d 756; Gresham on Certiorari, p. 98. (2) Before there can be conflict with a controlling decision it must be shown that the Supreme Court has ruled the law applicable to the same or substantially similar facts. Gresham on Certiorari, pp. 106-7. (3) While grey mule cases are not required, yet it is necessary that the ultimate facts raise the same legal question. State ex rel. Schaffer v. Allen, 253 S.W. 768; Gresham on Certiorari, pp. 108-109. (4) Instruments mentioned in the opinion as a basis of the decision may be referred to upon certiorari as fully as if included in extenso in the record. State ex rel. Talbott v. Shain, 334 Mo. 617, 66 S.W.2d 826; State ex rel. Kinealy v. Hostetter, 340 Mo. 965, 104 S.W.2d 303; Gresham on Certiorari, pp. 93-4. (5) Rulings, statements, dicta, arguments, collateral matters, comments or inconsistencies in the opinion of the Court of Appeals not necessary to the decision of the case, do not constitute conflicts and are not ground for quashal. State ex rel. Terminal R. Assn. v. Hughes, 169 S.W.2d 328; Gresham on Certiorari, p. 125. (6) Where the Supreme Court has never passed upon the instrument construed by the Court of Appeals in the same or substantially similar form, the ruling of the Court of Appeals will not be disturbed. Gresham on Certiorari, p. 116; State ex rel. State Highway Comm. v. Shain, 340 Mo. 802, 102 S.W.2d 666; State ex rel. Security Mut. Life Ins. Co. v. Allen, 305 Mo. 607, 267 S.W. 379. (7) Decisions of Courts of Appeals may not be urged as the basis of conflict. State ex rel. Massman Const. Co. v. Shain, 344 Mo. 1002, 120 S.W.2d 941; Gresham on Certiorari, pp. 131-2. (8) Relators' cases do not establish conflict. Bales v. Butts, 309 Mo. 142, 274 S.W. 679; Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604; Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983; Schroer v. Brooks, 224 S.W. 53, 204 Mo.App. 567; Campbell v. Kuhlmann, 39 Mo.App. 628. (9) Whether respondents construed the clause in the Ackerman-to-Hopkins deed reserving to the grantees, their heirs and assigns, the benefits of the 10-foot walk to be used for pedestrians, correctly or not, is immaterial. (10) A fair reading of the entire opinion conclusively shows that respondents correctly ruled the case; that respondents recognized Hopkins owned the fee; that the language employed in discussing the Ackerman-Hopkins deed reservation, that it should "Inure as well to the grantees, their heirs and assigns," while not necessary to the decision of the case, was a reasonable attempt to interpret the intent of the parties. Gresham on Certiorari, p. 87. (11) The facts as found by the majority opinion of the Court of Appeals and not those in the dissenting opinion are taken as true for the purpose of determining whether there is conflict. Gresham on Certiorari, p. 87; State ex rel. Wahl v. Reynolds, 272 Mo. 588, 199 S.W. 978.

Dalton, C. Bradley and Van Osdol, CC., dissent.

OPINION

DALTON

This cause having been reassigned, we adopt without quotation marks a statement of facts and issues prepared by one of our associates.

This cause is in certiorari to quash the record and opinion of the St. Louis Court of Appeals in Gerber v. Appel et al. (Mo App.), 164 S.W.2d 225. In such proceeding we look to the opinion only for the facts. State ex rel. Massman Construction Co. v. Shain et al., 344 Mo. 1003, 130 S.W.2d 491. Pleadings and documents referred to in the court of appeals opinion may be considered. State ex rel. Brotherhood of Locomotive Firemen and Enginemen v. Shain et al., 343 Mo. 666, 123 S.W.2d 1.

The facts as appear in the opinion of the court of appeals are these: September 26, 1925, Leopold Ackerman owned a tract of land in Landue, St. Louis County, fronting 698.22 feet on the north side of Clayton Road and extending north 727 feet to the right of way of a street railway. On September 26, 1925, Ackerman and wife conveyed the east portion of the tract to Edward J. Hopkins and wife. The portion conveyed to Hopkins and wife fronted 257.07 feet on Clayton Road, and the east 178.92 feet thereof extended north 727 feet to the street railway right of way, but the west 78.15 feet extended north only 353.84 feet. The Ackerman deed to Hopkins reserved a walkway 10 feet in width along the west line of the land conveyed, which reservation follows:

"Reserving, however, unto the said Leopold Ackerman, one of the parties of the first part herein (being the owner of the contiguous land west of the property herein conveyed for a distance of 353.84 feet from Clayton Road) a right of way ten feet in width, over the property herein conveyed, running southwardly from the south line of right of way of the Clayton Division of the United Railways Company along the west line of property herein conveyed to the north line of Summit tract, thence westwardly along the north line of Summit tract 78.15 feet; thence southwardly along the west line of property herein conveyed 353.84 feet to the north line of the Clayton Road, which right of way shall be used only as a walk for pedestrians.

"The easement herein reserved shall run with the land, and shall inure to the benefit and use of the said Leopold Ackerman as owner of the contiguous land hereinabove mentioned, his heirs and assigns, as well as to the benefit and use of the grantees herein, their heirs and assigns."

May 8 1926, Ackerman and wife conveyed to Fredrick A. Gerber the parcel of the land lying immediately west of the Hopkins parcel, and fronting 441.15 feet on the north side of Clayton Road, and extending north 353.84 feet. The east line of the Gerber parcel coincides with the west line of the walkway reserved in the Ackerman deed to Hopkins. There is a dwelling house on the Gerber parcel, which house, prior to the conveyance to Gerber, was occupied by Ackerman, and thereafter by Gerber: The dwelling fronts toward and is 126 feet north of Clayton Road, and is 38 feet west of the reserved walkway. There is a garage back of (north of) the dwelling, and there is a driveway east of the dwelling leading from the garage to Clayton Road. It is 8 feet from the west line of the reserved 10 foot walkway on the Hopkins parcel to the driveway on the Gerber parcel. There is a woven wire fence, erected by Gerber, on the west line of the reserved walkway, which is the east line of Gerber's parcel. The fence extends north from Clayton Road, and there is a gate in the fence 230 feet north of Clayton Road and...