125 Mo. 502 | Mo. | 1894
Plaintiff, by his action, seeks to have removed certain alleged obstructions from parts of lot 1, block 45, first addition to Lexington, being a strip of five feet in width, extending from Laurel street west about forty feet, and also a strip about ten feet wide, extending from the alley through said block north about sixty feet, claiming that the said strips constitute private ways or alleys, and that the same had been obstructed by the defendants. The allegations of the petition are traversed by the answer, and absolute ownership of the parts of said lot claimed as alleys is alleged to be in the defendants, and, further, that defendants and those under whom they claim title have been in the open, continuous, peaceable and adverse possession as such owners for more than ten years next before the beginning of the suit. These allegations are put in issue by the reply.
Block 45 was divided into regular lots, twenty in number, six being on each side of an alley twenty feet wide, running east and west through the said block, Main street being on the north and Laurel street in the. east of the said block, and.lot. number 1 being the east and north lot in the tier of lots, having the said Main street on the north, Laurel street on the east and the public alley on the south. See plat.
Samuel Wilson died seized of record of the thirty-six feet, three inches, fronting on Main street, adjoining the Morrison-Wentworth Bank building and running back, the east twenty feet, eighty feet, and the west sixteen feet three inches, one hundred and forty feet to the alley in the center of the block and a strip five feet in width and twenty feet long lying between the Mitchell property and Morrison-Wentworth Bank building. His estate was duly partitioned and all of the last above described tracts or parcels were assigned to his widow, Mrs. Jane H. Wilson, in fee.
In March, 1887, she conveyed all this land to William and David Smith, by warranty deed. .In the succeeding April, David and William Smith conveyed the east half of the front on Main street to S. Gk Wentworth and William Morrison by warranty deed, and included the five feet between the bank and the Mitchell sixty feet on Laurel street, and a strip eight feet wide back to the alley and adjoining the Mitchell lots on the west, with right to passage in the stairway leading up to the building in the rear and reserving the right to use, occupancy and right of ingress and egress over the passway of five feet in the rear of the bank, and the continuation of said line to west line of said property conveyed. In October, 1887, Wentworth and Morrison conveyed the last described tracts by the same description by warranty deed to Ed Mark, reserving a right of way over the strip of five’ feet.
In 1891 the defendants Ed. and Herman Mark bought the west half of the lots fronting on Main street and adjoining the last described tract and all the remainder of the Samuel Wilson tract. Defendants
After the purchase by Caroline Mitchell, as before said, she sold off of the north end of lot 2 a strip twenty feet on Laurel street running back forty feet. On this ground Klug erected a two story brick building running back about twenty-five feet, leaving a small yard in the rear, which was fenced, having two gates, one to the north opening into what is claimed as the five foot alley; one to the south, opening into the lot between this building and the blacksmith shop, out of which there was another gate opening onto Laurel street. Klug, if he desired a side entrance, instead of leaving one out of his own property, covered the entire frontage with his building, the lower part of which was used as a shop, with a stairway running to the second story, which was used as a residence.
Shortly after the purchase of the first tract (20x40) by Caroline Mitchell, her husband, John A. Mitchell, built a brick blacksmith shop covering its entire dimensions, and with a door in the rear opening upon the ten foot strip in controversy, which was used by the blacksmith as a way in and out of his shop for horses, which were forbidden by city ordinance from being led on the sidewalk to - enter at the front. The building was erected, and this use of the strip was made, with the knowledge and consent of Samuel Wilson, who also about that time built, conjointly with Mitchell, a double brick privy west of the blacksmith shop, and just beyond the ten foot strip, on the west side of lot 2, then .also owned by Wilson. Wilson and Mithell together marked off the side of this privy, and one part of it was used in connection with the shop until it was torn down in 1887 by the Smith Brothers. Plaintiff claims this .as an act of Wilson marking the width of the alley at the south end, and dedicating it to public use. At the north
All of the deeds from Samuel Wilson were by metes and bounds, describing the property as so many feet on certain streets, running' back to designated monuments (stakes) and contained no reference whatever to any private alleys or rights of way.
The evidence on both sides tends to show that the entrance on Laurel street to the five foot strip was generally open and the adjoining proprietors and tenants, and the public generally, passed through it at will as they desired. On the part of plaintiff it is in evidence that a swinging gate was maintained at the west end of this strip to keep out boys and dogs. After defendants purchased the two storerooms, and a saloon in one of them was closed out, they put a permanent gate with a lock across this west entrance to the five feet. This is one of the obstructions plaintiff seeks to remove. They then ran a fence across the south end of the ten foot alley and built a coal house and privy on the ten foot strip and obstructed it with a pile of brick and rubbish.
Thereupon plaintiff served defendants with the following notice or demand dated twenty-first of July, 1892; Lexington, Missouri signed by Richard Field:
Caroline Mitchell, John A. Mitchell, Francis Klug and Samuel Wilson have all been dead for a number of years.
I. The plaintiff in this case is the regular judge of the circuit court of Lafayette county, and, therefore, incompetent to sit in the case. Accordingly, when the case was reached, we find this record of the proceedings on the seventeenth day of the September term, 1892:
“Now at this day the Honorable Richard Field, regular judge of this court being a party to this action, by agreement of parties, the Honorable Charles W. Sloan, judge of the Seventh judicial circuit, is selected to try this cause. And the parties in person, and by their attorneys, appearing, this cause is now taken up and submitted to the court for final hearing and trial without a jury, and the evidence being partly heard
No objection or exception was made or saved to the selection of Judge Sloan until the point was made in the motion in arrest. It is now contended that his selection was without authority of law and his acts as judge in the cause null and void.
It is provided by section 3322 that whenever the judge of any circuit shall, for any cause, be unable to hold a term, or part of a term, of court in any county in his circuit, he may request the judge of another circuit to hold it for him, who shall in such case possess all the powers of the judge of the circuit, and section 3323 further provides, that whenever the judge, if in attendance, for any reason, can not properly preside iii any cause in his court, and the parties fail to agree upon an attorney of the court, an election shall be held to select one of the attorneys of the court then in attendance to hold the court.
The contention now is that, as the parties had not agreed upon an attorney of the court, an election was absolutely essential and that section 3322 does not apply and the judge has no power to call in another judge. We do not think section 3322 has any such restricted meaning. The language could hardly be more comprehensive. If “for any cause” he shall be unable to hold the term or part of it, he may call in another judge. Being a party to the suit, he was rendered unable by the law to try the cause or hold that part of the term devoted to the trial of this cause. He could have called in another judge without consulting the other side, but when, as the record shows, he consulted their wishes and they with him agreed upon Judge Sloan, the point is without merit either in ethics or law.
In this case there is no such recital. Samuel Wilson conveyed each of these three twenty-foot lots facing on Laurel street by metes and bounds but makes no reference to any alley on the west. It must, then, in the outset be conceded that plaintiff’s right to this strip as an alley does not arise out of an express grant, or by necessary implication from the recitals in the deeds under which he claims.
Nor do we think plaintiff cap seriously claim that he is entitled to this alley as a way of necessity, which is itself an implication from the grant. That it would be a great convenience to these lots of plaintiff to have an alley in the rear is apparent, but it can hardly be said to be a necessity. Certainly it is not a necessity to the blacksmith shop. This twenty feet has a street in front and alley along its whole southern side, and the other two lots abut on the east on Laurel street. It is not enough that this alley would be even a great convenience; in the situation of this property it is not in the legal sense a way of necessity. Carbrey v. Willis, 7 Allen, 364; Nichols v. Luce, 24 Pick. 102; Grant v. Chase, 17 Mass. 443; Parsons v. Johnson, 68 N. Y. 62; Whalley v. Tompson, 1 B. & P. 373; Warren v. Blake, 54 Me. 276; Francies's Appeal, 96 Pa. St. 200. So that, if plaintiff is entitled to a private way over these strips, it must flow from an exclusive
Both the character of this property and its location must be taken into consideration in reaching a correct conclusion in this matter. When Samuel Wilson sold, there was no alley in the rear. He owned sixteen feet and three inches in width in the rear of these lots, but he owned two storerooms fronting on Main street to which this sixteen feet three inches was valuable as a way of approach and for outhouses. That it was tised for this is not to be questioned; nor do we doubt that he permitted Mr. Mitchell and Mr. Klug to use it along with his tenants in connection with their business. That Mitchell shod horses on the ten feet next to the alley is clearly established, but it seems to us equally as well established that there was a fence along this alley, with a gate in it. This fence was sometimes up and sometimes down and the gate was off and on, but most clearly the use of this cul cle sac fell far short of establishing a public alley therein. The fact that Samuel YVilson permitted his vendees and the public generally to pass over this land in the rear of his stores, in connection with the use of it by himself and his tenants, does not, in our opinion, make out a case of intent on his part to dedicate to public use. The fences and gates he erected across both pieces and his exercise of ownership in other ways rebut such an assumption. The use by the public was not such as to indicate an abandonment of the strip exclusively to the use of the community, and, when user alone, disconnected with any act of the owner showing an intent to dedicate, is relied on as evidence of a dedication of a right of way to the public, it must continue the length of time necessary to bar an action to recover possession of' land, and it must be adverse.
We are disposed to concede much to the judgment
The great number of witnesses precludes our giving even a synopsis of the testimony, but we have gone carefully through the abstract, which is conceded to be fair, and from the evidence we think the court erred in granting the injunction, and in holding that the facts entitled plaintiff to an easement over these strips as appurtenant to his lots, and the judgment is accordingly reversed.
