Opinion
June 27, 1938.
1. — Appeal and Error. Court of Appeals is not prone to dismiss appeal for failure to comply with rule 16, as to clear and concise statement, where court can cull from statement sufficient knowledge of questions to be reviewed.
2. — Appeal and Error. Court of Appeals would waive defects in failing to include all evidence in abstract, and failure to index exhibits on pages where offers of such evidence (deeds) are shown, where parts of deeds going to issues can be fairly gleaned from record, and where trial court made a clear and comprehensive finding of facts.
3. — Easements. Construction of driveway by the owner of adjoining lots so that entrance was entirely on one lot, and other portions were partly on each lot, and grant and reservation of easement for use of common driveway by occupants of both lots in deeds conveying the lots, and uninterrupted use of same for more than ten years created common easement and right of way between lots to be used by occupants of each lot for ingress and egress to garages on back of lots, and one occupant could not obstruct driveway in such manner as to prohibit use thereof by occupant of other lot.
Appeal from Jackson Circuit Court. — Hon. Ben Terte, Judge.
AFFIRMED.
J.K. Owens for appellants.
(1) The judgment of the court is against the law and the evidence, for the following reasons: (a) That the judgment of the court in holding that the deed created an easement upon that part of the driveway from the sidewalk to the building line, is against the law and the evidence. (b) That that part of the judgment holding that plaintiff acquired an easement over the driveway by prescription is against the law and the evidence, for the reason that it was shown that the possession was not adverse, that it was not under claim of right, but was by permission. Seested et al. v. Applegate et al., 46 S.W.2d 796, l.c. 797; Ashbaugh v. Ashbaugh, 201 S.W. 72, l.c. 74; McMahill v. Schowengerdt, 183 S.W. 605, l.c. 606; Anthony v. Building Co., 188 Mo. 706; Courtner v. Putnam, 30 S.W.2d 126, l.c. 131; Stevenson v. Black, 168 Mo. 549, l.c. 561; McWilliams v. Samuel et al., 123 Mo. 659, l.c. 662; Field v. Marks, 125 Mo. 502, l.c. 516. (2) The court erred in holding that plaintiff had the right to maintain a suit for injunction when it, together with its tenants, had violated the right to the use of said easement, which by its own acts rendered the use of the easement improper. 19 Corpus Juris, pages 993, 950; Skraintka v. Oertel, 14 Mo. App. 474; Primm v. White, 162 Mo. App. 594, l.c. 606.
Wilkinson, Byrum Gough, W.F. Wilkinson and W. Raleigh Gough for respondent.
(1) The location of the driveway by its construction, the subsequent creation of the easement by the deed to Lot 6, and the reservation of easement in the deed to Lot 5, together with the user of the driveway for thirteen years without protest or objection, operated to create and establish an easement over the driveway to the extent and in the manner alleged in plaintiff's petition. (a) The word "between," as used in these deeds, does not mean the driveway was located one-half on one lot and one-half on the other. Webster's International Dictionary; 7 C.J. 1146; Dunn v. English, 23 N.J.L. 126. (b) The deeds are to be construed beneficially in favor of the grantee of the easement and so as to give effect to the language used; if there is any ambiguity, parol evidence is admissible to explain the meaning of the language employed. Dunn v. English, 23 N.J.L. 126; Bernero v. McFarland Real Estate Co., 134 Mo. App. 290, 114 S.W. 531. (c) The deeds in this case, when taken into consideration with the circumstances of the parties at the time of their execution, and the practical construction of said deeds by the parties in making use of the driveway, were sufficient to create the easement alleged in plaintiff's petition. 19 C.J. 972-973; Geishman v. Trish, 163 Mo. App. 308, 143 S.W. 876; George v. Cox, 114 Mass. 382; Bannon v. Angier (Mass.), 2 Allen 128: Davis v. Watson, 89 Mo. App. 15; Riddle v. Jones, 199 Ky. 767; Alabama Corn Mills Co. v. Mobile Docks Co., 200 Ala. 126, 75 So. 574; Fulcher v. Dierks Lumber Co., 164 Ark. 261, 261 S.W. 645; Gerrish v. Shattuck, 128 Mass. 571; O'Brien v. Schayer, 124 Mass. 211; Peabody v. Chandler, 40 N.Y.S. 1028; Morris v. Blunt, 40 Utah, 243, 161 P. 1127; Eureka Land Co. v. Watts, 119 Va. 506, 89 S.E. 986; Litchfield v. Boogher, 238 Mo. 472, 142 S.W. 302; McDonald v. Quick, 139 Mo. 498, 4 S.W. 208; City of Chicago v. Borden, 190 Ill. 430, 60 N.H. 915. (2) The trial court's finding and decree that plaintiff had acquired an easement by prescription is sustained by the evidence. (a) Appellants have abandoned the claim that there was no user for the statutory period. Shaw v. Sanitary Street Flushing Mach. Co. (Mo.) 213 S.W. 83; Thornbrugh v. Hall (Mo.) 263 S.W. 146; Zahm v. Royal Union Fraternal Union of St. Louis, 154 Mo. App. 70, 133 S.W. 374. (b) The evidence was sufficient to sustain the trial court's finding that there had been a continuous and uninterrupted user. 19 C.J. 881. et seq.: Sanford v. Kern, 223 Mo. 616, 122 S.W. 1051. (c) The user by plaintiff and its predecessors in title was not permissive, but was adverse and under claim of ownership. Novinger v. Shoop (Mo.), 201 S.W. 64; Graham v. Olson, 116 Mo. App. 272; 19 C.J. 890, et seq.; Gerstner v. Payne, 160 Mo. App. 289, 142 S.W. 794; Faulkner v. Hook, 300 Mo. 135, 254 S.W. 48; Meryl Realty Inv. Co. v. Schumacher (Mo.), 264 S.W. 368; Schroer v. Brooks, 224 S.W. 53. (3) The evidence as to alleged misconduct on the part of plaintiff's tenants, etc., was insufficient to require the denial of injunctive relief. (a) This being a suit in equity, although heard de novo in the appellate court, great deference will be given to the findings of the trial chancellor, due to his superior opportunity to judge of the credibility of witnesses. Net Realty Inv. Co. v. Dubinsky (Mo. App.). 94 S.W.2d 1108; Batson v. Peters (Mo.), 89 S.W.2d 46; McKinney v. Hutson, 336 Mo. 867, 81 S.W.2d 377. (b) The evidence was insufficient to show a real "burden" upon the easement. (c) Appellants did not raise such objections with respondent before proceeding to block the driveway. (d) Appellants, by reason of their own misconduct, cannot raise this defense. Greisinger v. Kleinhardt (Mo.), 9 S.W.2d 978; 19 C.J. 955; Primm v. White, 162 Mo. App. 595.
This is an appeal from the judgment of the Circuit Court of Jackson County, Missouri. The suit is for a mandatory injunction to compel the removal of certain obstructions to a common driveway between lots Nos. 5 and 6. Ellison Park (House Nos. 4237 and 4239 Mercier Street, respectively), in Kansas City, and to prohibit defendants from further obstructing such driveway. Judgment below was for plaintiff and defendants have appealed.
We are confronted at the outset with a motion to dismiss the appeal. Reasons assigned being: (1) Failure to comply with our rule 16, as to clear and concise statement; (2) Failure to include in abstract all of the evidence, to-wit, twelve deeds introduced in evidence are not set out as required by our rule 14; (3) Failure to index the exhibits (deeds) or the pages as to where offers of deeds are shown, in violation of our rule 30.
There is merit in each of the above specifications. However, this court having regard for the interest of litigants, takes upon itself extra labor, and if we can cull from statements sufficient knowledge of the questions we are asked to review, we are not prone to dismiss appeal. In the present case we conclude not to dismiss the appeal on respondent's first specification.
As to specifications Nos. 2 and 3, the parts of the deeds going to the issues can be fairly gleaned from the record, and due to that fact and to the fact that the trial court has made of record such a clear and comprehensive finding of facts, we conclude to waive any of the defects pointed out in both specifications Nos. 2 and 3.
It appears from the evidence before us that one Margaret C. Clark, as a straw man holder of title for one James O. Wade, became the owner of lots Nos. 5 and 6, aforesaid, in the year of 1922. Thereafter the aforesaid parties made improvements of said lots Nos. 5 and 6 by erecting a duplex residence on lot No. 6 and a single residence on lot No. 5. It is further shown that said parties erected three garages in the rear of aforesaid property; one being on lot No. 5 and two upon lot No. 6. It is further shown that said parties constructed a driveway to the aforesaid three garages. It appears that said driveway at its entrance from the street was constructed at an angle from its beginning on the street and said driveway at its beginning was entirely constructed upon lot No. 5, angling therefrom for some distance until the driveway was constructed so that part was on lot No. 5 and part on lot No. 6, so as to give access to the three garages erected in the rear, as aforesaid.
It appears that on the 2nd of December, 1922, lot No. 6 was conveyed by Margaret C. Clark to J.J. Wermelskirchen and wife, and this deed, among other things, contained the following:
"Also an easement herewith granted for use of driveway between Lots 5 and 6 of Ellison Park, said easement carrying with it the privilege of each party as the owners of said Lots 5 and 6 to use all that portion of driveway in rear of said Lots 5 and 6 for the mutual convenience of each party thereto."
It further appears that on June 11, 1923, lot No. 5 was conveyed by Margaret C. Clark to Lucille Lenahan. The deed among other things, contained the following:
"Subject to an easement for the mutual use of the driveway between Lots 5 and 6, Ellison Park."
It further appears that by conveyance from Mr. Wermelskirchen and wife, title to lot No. 6 became vested in the respondent herein, plaintiff below.
It further appears that by conveyance from Lucille Lenahan to Mary Simpson, and from Mary Simpson to A.M. Schenck, and from A.M. Schenck to appellants, defendants below, they become vested in title to lot No. 5.
As before stated, the judgment in the circuit court was for plaintiff, respondent herein.
We have carefully read the record in this case and conclude that the findings of fact of the trial court are fully substantiated by the evidence and that the conclusions of law made by the trial court, all shown in the record, are in conformity with the laws of the State of Missouri, and we copy same in this opinion as follows:
". . . and the court doth further find: That the plaintiff is the owner of lot 6, Ellison Park, an addition in and to Kansas City, Jackson County, Missouri, and that the defendants are the owners as tenants by the entirety of lot 5, Ellison Park, an addition in and to Kansas City, Jackson County, Missouri: that between said lots there exists, and has existed for a number of years, a concrete driveway leading from Mercier Street to the rear of said lots where are located garages serving plaintiff's and defendants' properties, and that said driveway has for more than ten years before the filing of the petition herein, been used by the respective owners of said properties as a means of ingress and egress between said garages and said Mercier Street.
"The court further finds that the improvements on both of said properties were constructed by one James O. Wade and the said James O. Wade at the time of the construction of said improvements laid out, designed and constructed said driveway over the area described in plaintiff's petition and more fully defined and described in the plat annexed to plaintiff's petition, identified as Exhibit `A.' which is hereby made a part hereof by reference; that the said James O. Wade located and constructed said driveway for the purpose of affording a common driveway between said properties; that at said time the said James O. Wade was the owner of the full equitable title to both of said properties, the legal title thereto being at that time held by one Margaret C. Clark, who held the legal title to said properties as a straw party for the said James O. Wade.
"The court further finds that on December 2, 1922, the said Margaret C. Clark, being then the legal owner of both of said lots, conveyed said lot 6, by warranty deed, to one J.J. Wermelskirchen, and by said deed of conveyance also conveyed to said grantee an easement for the use and enjoyment of said driveway as a common driveway between said lots, as the same had theretofore been located, established and constructed by said James O. Wade, as hereinbefore found by the court.
"The court further finds that thereafter, on the 11th day of June, 1923, the said Margaret C. Clark, being then the owner of the legal title to said lot 5, conveyed the same, by warranty deed to one Lucile Lenahan, and by said deed of conveyance reserved for the benefit of the owner of said lot 6 the said easement theretofore created for the common driveway between said properties.
"The court finds that by reason of the location, establishment and construction of said driveway by the said James O. Wade, as hereinbefore found by the court, and by reason of the grant and reservation of said easement by the deeds of conveyance hereinbefore referred to, there was created, for the mutual use, benefit and enjoyment of the respective owners of said lots 5 and 6. Ellison Park, a common easement and right of way between said properties as the same has hereinbefore been described, and that each of said several owners became entitled to use and enjoy said easement and driveway for the purpose of ingress and egress between said garages and said Mercier Street and for all other reasonable purposes connected therewith.
"The court further finds that by reason of successive conveyances from the said Wermelskirchen and the said Lenahan, the plaintiff and the defendants have respectively became seized and possessed of the title to the said two lots of land and have become seized and possessed of said easement and driveway.
"The court further finds that the plaintiff is entitled to said easement and driveway by reason of the continued and uninterrupted, adverse use and enjoyment of said easement and driveway by plaintiff and its predecessors in title for a period of more than ten years immediately prior to the filing of this suit and prior to the obstruction of the driveway by defendants as hereinafter found by the court.
"The court further finds that in the month of July, 1936, the defendants, without warrant or justification, attempted to obstruct, and did obstruct and prevent, the use by plaintiff and its tenants, and those holding under them of said driveway, by the construction of posts and a wire fence along the property line between said lots 5 and 6, thus preventing the use of said driveway by plaintiff, its tenants and those holding under them.
"The court finds that the said obstruction of the driveway by the defendants was unwarranted and unjustified and that by reason thereof plaintiff and its tenants were greatly injured but that the injury and damage to plaintiff may not be readily and accurately ascertained, and that unless the defendants be enjoined from further maintaining said obstruction plaintiff will be irreparably damaged and that plaintiff has no plain, adequate and complete remedy at law.
"WHEREFORE, it is by the court ordered, adjudged and decreed that the defendants, and each of them, be, and they hereby are, commanded immediately to remove the said obstructions placed upon said driveway, to-wit, said wooden posts and said wire fence erected upon said driveway; and it is further ordered, adjudged and decreed by the court that the defendants, their agents and servants, each of them be and they hereby are, perpetually enjoined and restrained from maintaining said objections upon said driveway and from erecting or constructing and maintaining any other obstructions to said driveway as the same has heretofore been defined and described by the court. "It is further ordered, adjudged and decreed by the court that the plaintiff have and recover of and from the defendants its costs herein and that execution issue therefor.
"(Signed) Ben Terte, "Judge."
We conclude that the above findings and conclusions by the trial court are in harmony with the evidence and the law. [Litchfield v. Boogher, 238 Mo. 472, 142 S.W. 302; Sanford v. Kern, 223 Mo. 616, 122 S.W. 1051; Batson v. Peters (Mo.), 89 S.W.2d 46; Greisinger v. Kleinhardt (Mo.), 9 S.W.2d 978.]
Judgment affirmed. All concur.