Sultzman v. Branham

• Decision Date: 21 January 1908
• Citation: 108 S.W. 1074,128 Mo. App. 696
• Parties: SULTZMAN v. BRANHAM et al.
• Court: Missouri Court of Appeals

108 S.W. 1074

128 Mo. App. 696

SULTZMAN v. BRANHAM et al.

St. Louis Court of Appeals. Missouri.

January 21, 1908.

1. EASEMENTS — OBSTRUCTION — INJUNCTION.

Where a private alley is left open for the use of adjacent proprietors by agreement, an obstruction of the alley will be prevented by injunction.

2. LANDLORD AND TENANT — LEASE OF WAY — CONSTRUCTION.

A purchaser of lots procured as a part of the transaction a lease from the vendor of a three-foot alleyway for a rear outlet from the lots. The lease stipulated that the vendor leased to the purchaser for a specified consideration for 99 years a strip described, and bound the vendor to maintain a cistern and closet "on said premises," and to lease the same for 99 years to the purchaser, who agreed to pay a part of all necessary repairs the cistern and closet might require during the period. Held, that the vendor could not obstruct the way by the construction of a closet within its limits.

Appeal from Hannibal Court of Common Pleas; David H. Eby, Judge.

Action by Nettie Sultzman against Thomas H. Branham and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Chas. E. Reudlen, for appellants. Thomas H. Bacon, for respondent.

GOODE, J.

This is a suit in equity to enjoin the obstruction of a private way over which the plaintiff claims easement of egress and ingress. Plaintiff and the defendant Branham own and occupy in person and by tenants contiguous properties in the city of Hannibal, Mo. Plaintiff holds her property under and by virtue of deeds executed to her grantors by Branham, who was the common source of title. The passageway in dispute was created by a lease executed by Branham to John B. Shepherd June 12, 1876. The lease was subsequently assigned to the plaintiff. It is necessary to copy it, as both plaintiff's cause of action and the defenses of the defendants is founded upon it: "This lease made and entered into this 12th day of June, 1876, by and between Thomas H. Branham and Columbia E. Branham, his wife, parties of the first part, of the city of Hannibal, Marion county, Missouri, and John B. Shepherd, of the county of Marion and state of Missouri, party of the second part, witnesseth: That said parties of the first part for and in consideration of the sum of ten (10) dollars to them paid by the party of the second part, the receipt of which is hereby acknowledged and the further consideration hereinafter named, have this day leased unto the said party of the second part for the period or term of ninety-nine (99) years from this date the right of way over the following described part of lot number seven (7) in block number twelve (12), in the city of Hannibal, county of Marion and state of Missouri, to-wit: Begin on the south line of said lot number seven (7), forty-one and eleven-twelfths, (41 11/12) feet east from the southwest corner of said lot number seven (7), thence north parallel with the east line of Third street, fifty-five (55) feet and six (6) inches to the south line of an alley; thence west with the south line of said alley three (3) feet; thence south parallel with the east line of Third street, fifty-five (55) feet and six (6) inches to the south line of said lot number seven (7); thence east on the south line of said lot, three (3) feet to the beginning; the said parties of the first part also hereby agree to maintain a cistern and privy (or water-closet) on said premises and they hereby agree to lease to the said party of the second part and assigns for the period or term of ninety-nine (99) years from the date hereof, the use of said privy and the use of the water in said cistern for and during the period of ninety-nine (99) years and as a further consideration the party of the second part hereby binds himself to pay one-fourth of all necessary repairs the said cistern and privy may require during the period of ninety-nine (99) years. In testimony whereof, the said parties have hereto set their hands and seals, the day and year first above written. [Signed] Thomas H. Branham. [Seal.] [Signed] Columbia E. Branham. [Seal.] [Signed] Jno. B. Shepherd. [Seal.]" Third street in the city of Hannibal runs north and south and Broadway east and west. Branham's property faces west on Third street, and appears to be divided into three lots, all improved, of which the south one is occupied by defendant Masterson as Branham's tenant. Masterson conducts a saloon in the building. Branham is personally in possession of the two lots north of the one occupied by his tenant, Masterson. Immediately north of Branham's lot and running east and west, so as to intersect Third street, is a private alley 10 feet wide, which connects on the east with a public alley, running north and south, 16 feet wide. Running parallel to said private alley and south of both Branham's and the Sultzman's property is Broadway, which intersects Third street at right angles. Mrs. Sultzman's...