Tamko Asphalt Products, Inc. v. Arch Associates

• Citation: 830 S.W.2d 434
• Decision Date: 04 February 1992
• Docket Number: No. 59780,59780
• Parties: TAMKO ASPHALT PRODUCTS, INC., Plaintiff-Appellant, v. ARCH ASSOCIATES, a/k/a Arch Associates Limited Partnership, Herbert M. Katzenberg and Susan B. Katzenberg, Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 434

830 S.W.2d 434

TAMKO ASPHALT PRODUCTS, INC., Plaintiff-Appellant, v. ARCH ASSOCIATES, a/k/a Arch Associates Limited Partnership, Herbert M. Katzenberg and Susan B. Katzenberg,

Defendants-Respondents.

No. 59780.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 4, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

May 19, 1992.

Application to Transfer Denied June 30, 1992.

Thompson & Mitchell, James W. Erwin, St. Louis, for plaintiff-appellant.

Bryan, Cave, McPheeters & McRoberts, Gerard T. Carmody, Elizabeth C. Carver, St. Louis, for defendants-respondents.

PUDLOWSKI, Presiding Judge.

This appeal is from a judgment of the Circuit Court of St. Louis County in which appellant Tamko Asphalt Products, Inc. ("Tamko") brought an action to quiet title and for injunctive relief alleging that it had a prescriptive easement to use a road crossing property owned by respondents Arch Associates, Herbert M. Katzenberg and Susan B. Katzenberg. Respondents counterclaimed for damages for trespass, declaratory judgment and an injunction. The Circuit Court entered judgment against Tamko on all issues, enjoined Tamko from using the road, and awarded respondents $22,000.00 in actual damages and $100,000.00 in punitive damages.

We affirm the judgment of the trial court on all issues except the award of actual damages which we remand to the trial court with directions to enter an award of $7,000 in lieu of $22,000.

We adopt the trial court's findings of fact and supplement it by the record where necessary: Tamko owns property located at 425 North Highway Drive in Fenton, Missouri, which it uses as a distribution facility for its roofing products. Respondent Arch Associates Limited Partnership ("Arch") is a Maryland limited partnership, whose general partners are respondents Herbert M. Katzenberg and Susan B. Katzenberg, both of whom reside in Baltimore, Maryland.

The rear gate of Tamko's property opens onto Overmyer Drive, a private road, the eastern portion of which crosses over the southern edge of property owned by C & W Investors ("C & W") directly to the north of the 425 North Highway Drive site ("C & W's portion of Overmyer Drive", referred to as "Parcel 5"); and the western portion of which crosses over the southern edge of property owned by Arch at 2001-2093 Hitzert Court, to the northwest of the 425 North Highway Drive site ("Arch's portion of Overmyer Drive", or "Parcel 4").

Until 1968, both the Arch and C & W sites were owned by D.H. Overmyer. In 1966, in anticipation of the construction of warehouses on the C & W site, D.H. Overmyer granted an easement over the Arch property (Parcel 4) in favor of the owners of the C & W site (Parcel 5), which permitted the latter to use Arch's portion of Overmyer Drive for ingress and egress to their property (the "1966 Easement Agreement"). The 1966 Easement Agreement runs in favor of the owners of the C & W site and their successors and assigns, and runs with and is appurtenant to the C & W site.

Holekamp Lumber Company ("Holekamp") purchased the Tamko site in the early 1960's. Holekamp leased warehouse space from the owners of the C & W site through at least the middle to late 1970's. Holekamp accessed the warehouse space either by Overmyer Drive (pursuant to the 1966 Easement Agreement) or through the back gate of its own property. Holekamp sold the lumberyard to Marian Industries in 1978 and Marian later sold the property to Rimar Building Properties. Tamko purchased the property from Rimar which had ceased operations at the site in July 1982 when it went into bankruptcy.

Prior to purchasing the Rimar site, Tamko's President, J.P. Humphreys, directed John Harness, the real estate agent who had listed the Rimar site, to investigate whether the property had access over Overmyer Drive to the rear gate. Harness testified that he went to "the St. Louis County Records" but found no written easement that "granted rights over Overmyer Drive for access to the back gate".

Harness then called and wrote Herbert Katzenberg to determine whether Katzenberg would grant such an easement to Tamko and, if so, the amount of consideration he would require. Katzenberg responded to Harness's inquiry by letter dated February 4, 1983, stating that he was willing to grant an easement, subject to the rights of the owners and lessees of C & W's property, for $15,000 for five years with a refund of $7,500 if the easement were terminated after that period. Humphreys found Arch's proposal to be "absurd" and "facetious" and therefore declined to respond to it.

Thereafter, Tamko purchased the Rimar property in April 1983 for $640,000 with "some risk" because the easement issue was still unresolved. Immediately upon closing on the property, Tamko chained and padlocked the back gate with railroad ties and dirt. The only use made by Tamko of Overmyer Drive until September 1984 was for weekly "security checks" made by Wayne Owens, Tamko's plant manager. Despite barricading the back gate, Tamko sought by virtue of these "security checks" to challenge the owner of the road by asserting a claim of ownership by a presumptive easement.

In September 1984, Tamko elected to reopen its back gate because the City of Fenton began ticketing Tamko's trucks parked on North Highway Drive. After the reopening, Tamko's trucks arriving after business hours would cross Hitzert Court to Overmyer Drive and park next to Tamko's back gate until it was opened for business the next morning. This use of Arch's portion of Overmyer Drive went unnoticed by the respondents.

In early 1987, a representative of Turley Martin, C & W's property management firm, noticed for the first time that trucks belonging to or servicing Tamko were using C & W's portion of Overmyer Drive. Turley Martin's representative, authorized by Judge Munnell, general partner of C & W, notified Tamko that further use by Tamko of C & W's portion of Overmyer Drive was prohibited unless Tamko paid a fee for the use and shared in maintenance of the road. During the course of negotiations with Turley Martin, Tamko never asserted that it had the right to use Overmyer Drive or any portion of it by virtue of an easement. Rather, when Turley Martin threatened "to close off (the) rear access", Tamko acquiesced in Turley Martin's demand and consented by letter agreement dated July 16, 1987 to pay an annual fee of $1,000 and to share in the maintenance of the road ("1987 letter agreement"). Appended to the agreement was a legal description and a drawing of the portion of Overmyer Drive in question. Tamko paid $1,000 in 1989 and 1990 in renewal of the 1987 letter agreement with Turley Martin. By letter dated April 30, 1990, Judge Munnell, as general partner of C & W, terminated the letter agreement.

On December 6, 1989, respondent Susan Katzenberg, general partner of Arch in charge of the day-to-day management of the Arch property, observed for the first time a tractor trailer marked "Tamko" turning onto Overmyer Drive from Hitzert Court and proceeding to Tamko's back gate. Upon her return to Baltimore, Maryland office the next day, Ms. Katzenberg directed Arch's counsel to demand that Tamko cease using Arch's property for any purpose and that Tamko compensate Arch for any prior trespasses. Despite Arch's counsel's letter of demand and notice dated December 7, 1989, Tamko continued to use Arch's portion of Overmyer Drive at least through the date of the trial at the direction of David Humphreys, general counsel and vice-president of Tamko.

After Ms. Katzenberg saw the trespassing truck the parties began negotiations to resolve the situation. Tamko proceeded to file its petition on December 29, 1989. Arch filed its counterclaim on April 5, 1990. On January 10, 1991, the Circuit Court entered judgment in favor of respondents and against Tamko on all issues. The Court enjoined Tamko from further use of the road, and awarded respondents $22,000 in actual damages and $100,000 in punitive damages. Tamko moved on January 25, 1991 to alter or amend the judgment, which motion was denied February 13, 1991. This appeal follows.

Our standard of review in this court tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the Circuit Court is presumed to be correct and must be affirmed unless this court finds that there is no evidence to support it, that it is against the weight of the evidence, or that it erroneously declares or applies the law. Id., at 32. See also, Wojtkowski v. Shelter Ins. Companies, 702 S.W.2d 74, 76-77 (Mo. banc 1985). In reviewing the judgment, this court should accept as true the evidence and inferences favorable to the prevailing party and disregard any contradictory testimony. St. Louis County, Mo. v. Oakville Development, 676 S.W.2d 919, 921 (Mo.App.1984).

The principal question presented by this appeal is whether Holekamp Lumber's (Tamko's predecessor in interest) use of Overmyer Drive for direct access from Hitzert Court to its rear gate between 1966 and 1976 was adverse or permissive. Before we address this issue, we note that to establish a prescriptive easement, a party must prove that its use of the property was open, continuous, uninterrupted, visible, adverse and under a claim of right of which the property owner had actual or constructive notice for a ten year period. Bridle Trail Ass'n v. O'Shanick, 290 S.W.2d 401, 405 (Mo.App.1956); Tate v. State, 675 S.W.2d 89 (Mo.App.1984). In addition, the law does not favor the creation of prescriptive easements and therefor Tamko has the burden of proving each of the elements by clear and convincing evidence. Gill Grain Co. v. Poos, 707 S.W.2d 434, 437 (Mo.App.1986); Meinhardt v. Lauders, 575 S.W.2d 213, 216 (Mo.App.1978).

Tamko argues that the trial court erred in holding that Holekamp's use of Arch's portion of Overmyer Drive was permissive, because the 1966 Easement Agreement "granted the right to use Overmyer Drive to...