Stotzenberger v. Perkins

• Decision Date: 16 March 1933
• Docket Number: 30404
• Citation: 58 S.W.2d 983,332 Mo. 391
• Parties: Andrew Stotzenberger v. William Perkins, Appellant
• Court: Missouri Supreme Court

58 S.W.2d 983

332 Mo. 391

Andrew Stotzenberger v. William Perkins, Appellant

No. 30404

Supreme Court of Missouri

March 16, 1933

Appeal from Cooper Circuit Court; Hon. W. S. Stillwell Judge.

Affirmed (upon condition).

Irwin & Bushman and Harry L. Buchanan for appellant.

(1) The word "therefrom" means literally "from this," or "from that." Webster's New International Dictionary; Century Dictionary. The word "therefrom," "refers in shorter terms" to before mentioned designations. Clark v. People, 224 Ill. 557; Hales v. Raines, 146 Mo.App. 242. (a) Where land is conveyed, excepting from it a roadway, the fee to such strip does not pass from the grantor. Mun v Worrall, 53 N.Y. 44; Dickman v. Madison Power & Light Co., 136 N.E. 794, 304 Ill. 470; Stearns v Mullen, 70 Mass. 151; Towne v. Salentine, 92 Wis. 404; Reynolds v. Gaertner, 117 Mich. 532; Zinc Co. v. Franklinite Co., 13 N.J.Eq. 323; Delano v. Leudinhas, 127 P. 197, 66 Wash. 474; Lins v. Seefeld, 126 Wis. 615; Mayor of New York City v. Railway Co., 23 N.Y.S. 562; Rushton v. Hallett, 8 Utah, 277, 30 P. 1014. (b) Where the words designating the use the strip is to be put to, or has been put to, are descriptive only the fee does not pass. Rushton v. Hallett, 8 Utah, 277; Mun v. Worrall, 53 N.Y. 46. (c) The contemporaneous and later interpretation of a deed put upon it by the parties themselves, is the best criterion as to what was meant by the deed, where the language is doubtful or ambiguous. Stone v. Clark, 35 Am. Dec. 373; St. Louis Gas Light Co. v. St. Louis, 46 Mo. 128; St. Louis v. Laclede Gas Light Co., 155 Mo. 2; Williams v. Railway Co., 153 Mo. 34. (d) A clause containing a reservation following the description in a deed is more to be construed as pointing out the particular land intended to be conveyed than to state the nature of the title grantor intends to pass. Grooms v. Morrison, 249 Mo. 545; 1 Strouds Judicial Dictionary (2 Ed.) p. 52; 2 Lewis Sutherland Statutory Construction (2 Ed.) p. 811, sec. 420. (e) Where two clauses in the same deed are repugnant, the first should be sustained and the latter rejected. 18 C. J. 268. Also the more important clause should be held to govern the meaning of the lesser clause. 18 C. J. 258. (f) No easement of necessity across the appellant's fee to the strip of land in question is impliedly granted respondent under the evidence and circumstances of this case. Cooper v. Maupin, 6 Mo. 624; Field v. Mark, 125 Mo. 502; Jones on Easements, p. 27; Kirkham v. Sharp, 29 Am. Dec. 57; Ball v. Allen. 216 Mass. 469; Anno. Cases 1917A, 1251. (2) An easement is presumed to be exclusive where participation in the use of it by the owner of the soil would lessen its value in the least degree. Bird v. Smith, 34 Am. Dec. 487. (a) The uses the respondent seeks to put this strip to transcend his rights as the owner of the soil, even if the same is only the reservation of an easement. Herman v. Roberts, 7 L. R. A. 228. (b) Whether or not an easement is exclusive depends upon the nature of the occasion, the uses shown and the terms of the agreement whereby it is created, but such matters should be construed most favorably to the grantee of the reservation (grantor in the deed) because exclusive enjoyment is more beneficial than mere participation, especially in a way which the grantee of the reservation is to repair. Kirkham v. Sharp, 29 Am. Dec. 60. (3) The respondent did not prove a common source of title, but relied upon title by adverse possession which he did not prove. (a) A common source of title, title running back to the government, or title by adverse possession, is a prerequisite to proof of title. Akins v. Adams, 256 Mo. 2; Harvey v. Anderson, 129 Mo. 206. (b) In order to acquire title by adverse possession under Sec. 850, Revised Statutes 1929, the possession must be open, notorious, actual, exclusive, continuous, visible and adverse, and the evidence must so show it to be that kind of possession before the same will ripen into title. Railway Co. v. Dillard, 43 S.W.2d 1037; Eaton v. Curtis, 4 S.W.2d 822; Baber v. Henderson, 156 Mo. 566. Section 856, R. S. 1929, does not apply in this case, because the evidence is insufficient to bring the case within the scope of this section. Fairbanks v. Long, 91 Mo. 633; Mansfield v. Pollock, 74 Mo. 186; Rothrock v. Lumber Co., 80 Mo.App. 510; Keaton v. Hamilton, 264 Mo. 579; Brannock v. McHenry, 252 Mo. 1; Lewis v. Barnes, 199 S.W. 213; Davis v. Dawson, 273 Mo. 499; Charles v. Morrow, 99 Mo. 638. (4) No substantial damages can be recovered by one for an injury to his property rights, without evidence furnishing a basis for a money estimate. Sheedy v. Brick works, 25 Mo.App. 527; Burdall v. Johnson, 122 Mo.App. 123; Cravens v. Hunter, 87 Mo.App. 465; Mackel v. Rose, 15 Mo.App. 397. (a) If the damages are uncertain or have not been admitted, the burden is on the plaintiff to establish the amount thereof. 17 C. J. 1024. (b) Although the law presumes damages from the infringement of a legal right, the amount so presumed is only nominal, hence where a legal wrong is established, but there is no evidence of actual damages, nominal damages are properly awarded. 17 C. J. 720, 721.

Pendleton & Martin for respondent.

(1) "The rule, applicable to deeds, of construction against the grantor and in favor of the grantee applies to reservations and exceptions expressed in a doubtful manner." 18 C. J. 345, sec. 347; Billings v. Baggs, 14 Me. 68. A deed to a tract constituting a part of a larger tract with the exception of a "roadway" definitely described and located, conveys the fee to the land included in the roadway, and creates only an easement appurtenant to the remaining part of the grantor's land. McElwaney v. Diarmid, 131 Ga. 97; Bolio v. Marvin, 130 Mich. 82. An "exception" in a deed is a part of the thing granted, and must be in use at the time of the grant. A "reservation" is some new thing created by the terms of the grant, as an easement of right of way. They are often used interchangeably. Carlson v. Minnesota Land etc., Co., 113 Minn. 361. The technical meaning of the terms "reservation" and "exception" will give way to the evident intent, though the wrong technical term be used, since they are frequently used interchangeably. Riefler & Sons v. Wayne Storage Water Power Co., 232 Pa. 282; Martin v. Cook, 102 Mich. 267; White v. Railway Co., 156 Mass. 181. "Where a deed of land reserves a road through the land conveyed in order to be able to reach a highway from other land of the grantor, it will be presumed in the absence of a clear indication in the deed to the contrary, that he reserved merely the use of the road and not the fee therein." Redemptorists v. Wenig, 79 Md. 348; Kister v. Reiser, 98 Pa. St. 1. (2) The deeds in evidence conclusively show that Bernard Young was the common source of title. Respondent was not required to go back of that common source to deraign title. Gordon v. Million, 248 Mo. 155. (3) Where land conveyed is entirely inclosed by lands of the grantor and others, the grantee is entitled by implication to a right of way over the lands of the grantor as a way of necessity. Tiffany Real Property, p. 714, sec. 317; Zimmerman v. Cockey, 118 Md. 491; Higbee Fishing Club v. Atlantic City Electric Co., 79 N. J. App. 326, 78 N.J.Eq. 434; Sweeney v. Vallette, 90 R. I. App. 1078, 37 R. I. 51; Williams v. Kuykendall, 151 S.W. 629; Gwinn v. Gwinn, 77 W.Va. 281. "The location of a way of necessity in first instance may be made by the grantor; if he fails to do so the grantee may select the site." M.-K.-T. Railroad Co. v. Cunningham, 273 S.W. 697. "The owner of land subject only to an easement may use his property for any purpose he may deem proper, so long as the use does not interfere with the proper enjoyment of the easement." Tacoma Safety Deposit Co. v. Chicago, 247 Ill. 192. "Where a landowner grants a passway to enable the grantee to pass over his lands to reach the grantee's lands, the grantor does not thereby cease to have any rights in the passway, but has a free right to the use, subject to the rights of the grantee to use for the purpose granted." Rice v. Ford, 120 S.W. 288; Duncan v. Goldthwait, 216 Mass. 402.

OPINION

Hays, J.

This is a suit for injunction. Plaintiff prevailed in the circuit court and the case is here on defendant's appeal. The parties are adjoining proprietors of agricultural lands. The controversy grew out of conflicting claims with regard to a parcel of land described in the record as a roadway. The plaintiff owns the west one-half of the northwest quarter of section thirteen (13); the defendant owns an eighty-acre tract adjoining that tract on the north and described as the south one-half of the southwest quarter of section twelve (12); all being in township forty-seven (47), range nineteen (19) in Cooper County. The roadway in question has its northern terminus on the division line between the respective properties and its southern terminus at the southeast corner of plaintiff's entire tract and there connects with a public road lying adjacent to [SEE ILLUSTRATION IN ORIGINAL] plaintiff's south boundary line and running east and west. The plat printed herewith will aid in understanding the situation.

The plaintiff formerly owned all the lands above described. He conveyed the whole by warranty deed dated September 9, 1915 to one B. J. Young, who thereafter by warranty deed of September 17, 1921, duly recorded, reconveyed to the plaintiff the eighty acres situate in section 13 and first hereinabove described. In this deed there appears in the description, after the designation of the west one-half of the northwest quarter of section 13, and the township and range, the following clause: "except therefrom a roadway twenty feet in width over and across said...