White v. St. Louis Post Offices Corp.

Decision Date12 December 1941
Docket Number37642
Citation156 S.W.2d 695,348 Mo. 961
PartiesJohn J. White, Mathilda White, his wife, Appellants, v. St. Louis Post Offices Corporation, a Corporation
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis; Hon. John J Wolfe, Judge.

Affirmed in part, and reversed and remanded in part.

Johnson & McNatt for appellant.

(1) The respondent failed to assume the burden of proof of adverse possession and its essential elements. Swope v Ward, 185 Mo. 316, 84 S.W. 895; St. Louis-San Francisco Ry. Co. v. Dillard, 43 S.W.2d 1034, 328 Mo 1154; Welsh v. Brown, 96 S.W.2d 345; Bell v. Barrett, 76 S.W.2d 394; Hilgert v. Werner, 145 S.W.2d 359. (a) Effective adverse possession must have essential elements of hostile claim of right, actual, open, notorious, exclusive, and continuous possession. Welsh v. Brown, 339 Mo. 235, 96 S.W.2d 345; Edie v. Coleman, 141 S.W.2d 238; Hilgert v. Werner, 145 S.W.2d 359. (b) Prescriptive easement subject to same strict requirements as prescriptive title to land. Schroer v. Brooks, 224 S.W. 53, 204 Mo.App. 567; Seested v. Applegate, 26 S.W.2d 796; Riggs v. Springfield, 126 S.W.2d 1144. (2) Respondent's use and possession of the property in question was pursuant to and subordinate to the record easement, and in absence of actual notice to appellants of respondent's adverse claim such excessive and increased use could never ripen into prescriptive rights no matter how long continued, but such excessive and increased use was permissive and subject to pleasure of appellants, the owners of the servient estate. 2 C. J., secs. 226, 230, 317; Seested v. Applegate, 26 S.W.2d 796; Swope v. Ward, 185 Mo. 316, 84 S.W. 895; 19 C. J., secs. 53, 54, pp. 887-889; Downing v. Dinwiddie, 132 Mo. 92, 33 S.W. 470; Kansas City v. Scarritt, 169 Mo. 471, 69 S.W. 283; Anthony v. Kennard Bldg. Co., 188 Mo. 704, 87 S.W. 921; Boland v. Byrne, 145 S.W.2d 755; Burnside v. Doolittle, 24 S.W.2d 1011; Sachs v. Toquet, 121 Conn. 60, 183 A. 22, 103 A. L. R. 677; Lundokken v. Paulson, 272 N.W. 453, 110 A. L. R. 910; Kavanaugh v. St. Louis Traction Co., 105 S.W. 278, 127 Mo.App. 265. (3) Respondent's injurious misuse of the easement entitled appellants to a judgment and their damage. Kavanaugh v. St. Louis Traction Co., 105 S.W. 278; Hyre v. Becker, 18 S.W.2d 137; 19 C. J., sec. 247, p. 989; Downing v. Dinwiddie, 132 Mo. 92, 33 S.W. 470.

D. Calhoun Jones for respondent.

(1) The intentions of the parties and the accompanying circumstances are what determine whether one holds land adversely. (a) One taking land with the intention of using it for his own purposes, regardless of whether or not he knows in whom legal title to such land may be vested, holds it adversely. Edie v. Coleman, 141 S.W.2d 238; Brown v. Wilson, 131 S.W.2d 848; 80 A. L. R. 156-159; 1 R. C. L. 731. (b) There need not be, in order to establish title by adverse possession, an absolute claim of right in words or a declaration that the use is adverse, or an admission on the part of the landowner that he has knowledge of the adverse use and claim of right. All of these things may be inferred. Jones on Easements, secs. 161, 164; Phelps v. Crites, 187 S.W. 3. One of two owners of adjoining properties acquires an easement by prescription over his neighbor's property to the extent that he has been utilizing, for a sufficient number of years, spaces within the lines of his neighbor's paper title. Sorkin v. Sentman, 29 A. 722; Grace Methodist Episcopal Church v. Dobbins, 25 A. 1120; Tirjon v. Matern, 164 A. 77; Sanford v. Kern, 122 S.W. 1051. (c) The visible indicia of possession is notice, and notice is the equivalent of knowledge of all that would be learned by reasonable inquiry; and whether one inquires or not, he is charged with all the knowledge which he might thus acquire, and he cannot claim to be ignorant of what he could learn by inquiry and investigation. Langford v. Welton, 48 S.W.2d 860; Boyce v. Mo. Pac. Ry. Co., 68 S.W. 920; Johnson v. Moore, 143 S.W.2d 254. (d) Where the existence, at one time, of a state of things of continuing nature is shown, there arises the presumption that such a state continues to exist until the contrary is shown. McDaniels v. Cuthburt, 270 S.W. 353; Miller v. Rosenberger, 46 S.W. 167; Wilson v. Spring, 38 Ark. 181. (2) Knowledge of an agent, obtained in the business of his principal and while acting within the scope of his apparent authority, is notice to the principal. Donham v. Hahn, 30 S.W. 134; State ex rel. Ins. Co. v. Allen, 262 S.W. 43. (3) It is for the trier of the facts to determine whether or not a case of adverse possession has been made. (a) Appellate courts will not disturb a judgment supported by evidence, and will defer to the trial court's judgment even in an equitable action. Welsh v. Brown, 96 S.W.2d l. c. 348; Hess v. Hessel, 102 S.W.2d 729; Bratschi v. Loesch, 51 S.W.2d 69.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION
DALTON

Action for $ 5,000 actual and $ 5,000 punitive damages for wrongful, malicious and continuous trespass on real estate. By a cross action defendant alleged that it was the absolute owner of an easement over that part of plaintiffs' described real estate which was occupied by a certain platform, canopy, iron grate and two coal chutes, and it prayed an adjudication of defendant's rights. Both causes of action were submitted to the court in one hearing and the court found for defendant on each cause. Plaintiffs have appealed. For convenience we shall continue to refer to the parties as plaintiffs and defendant.

Plaintiffs and defendant are the owners of adjoining tracts of real estate abutting on Enright avenue in University City, St. Louis County. Each tract is 30 feet wide and 100 feet deep, extending to an alley. Plaintiffs' tract is described as the east 30 feet of lot 2 in block F in Delmar Garden subdivision. Plaintiffs' one story brick building, containing an east and west store, covers the south (front) 60 feet of plaintiffs' lot. Defendant's tract is described as the west 30 feet of said lot 2 and is entirely covered by a one story brick building. The Audrey Realty Company is the common source of title. When it conveyed the property, now owned by plaintiffs, the deed, dated October 14, 1925, contained the following reservations: "The north 40 feet of the above property having a width on the alley from east to west of 30 feet shall be subject to a perpetual easement as a passageway to rear or side doors, and as a driveway for trucks and vehicles for the joint use and benefit of the present and future owners, lessees and tenants occupying any part of said lot 2, and it is agreed that neither the grantee herein nor his heirs or assigns shall ever obstruct said easement, so as to prevent access to the west 30 feet of said lot 2 nor build any fence across said easement or any building thereon."

The platform, canopy, iron grate and coal chutes referred to in the cross action occupy space within the area subject to the easement reserved, supra. They extend out from the east side of defendant's building and encroach upon plaintiffs' property.

Plaintiffs acquired their property in November, 1925. Plaintiff, John J. White, inspected the property prior to purchasing it and he saw no platform, canopy or coal chutes on the areaway in the rear of the building. The areaway was then being paved with concrete. The building on defendant's premises had been constructed, but it was unoccupied at the time. There was a coal chute on the alley side of defendant's building. Plaintiffs made no inspection of the property from the time it was purchased in 1925, until late in 1936 when they discovered the presence of the platform, canopy, iron grating and coal chutes in the areaway. In the meantime everything was left to agents and they didn't advise plaintiffs of these encroachments on the premises. Plaintiff, John J. White, testified: "I would say the first time I discovered the platform and canopy . . . was about the latter part of 1936. . . . The day I was out there I observed there were four or five trucks in the back of my premises. They were mail trucks or cars. The University City branch of the St. Louis Post Office occupied the building west of mine." Plaintiffs had other evidence which tended to show that the encroachments, supra, were not in existence at the time they purchased the property, but plaintiffs offered no evidence to show when the encroachments were actually constructed, or by whom. The encroachments depreciated the rental value of plaintiffs' property $ 20 per month because they interfered with access to the rear door of plaintiffs' west store.

It was admitted that defendant purchased its property from the Audrey Realty Company in October, 1927, but whether the deed contained any specific grant of the easement which had been reserved over plaintiffs' property or whether it contained any reference to the encroachments does not appear. The deed was not offered in evidence.

No officer, agent or employee of defendant testified at the trial, but defendant's witness Arthur G. Lane, assistant superintendent of mails in the University City branch of the St. Louis post office, testified that the building now owned by defendant was started about October, 1924, and was completed and occupied by the post office department on February 8, 1925; that the outside of the building (with reference to all encroachments upon what is now plaintiffs' property) was in exactly the same condition from February 8, 1925, to July 12, 1939 (the date of the trial). The witness said that the plans for the building were dated September 15, 1924, and were prepared with reference to access to and use of the areaway on the property now owned by plaintiffs; that a representative of the Audrey...

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    ...have no place in the disposition of this cause. See for illustration Bell v. Barrett, Mo., 76 S.W.2d 394; White v. St. Louis Post Offices Corp., 348 Mo. 961, 156 S.W.2d 695, and Hamburg Realty Co. v. Walker, Mo., 327 S.W.2d 155. While the plaintiff relies on adverse possession and hence a t......
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