*1 direction incorrect statement and we rule that instructions these cannot properly prejudicially be held erroneous. assigns rulings
Plaintiff also error on on evidence as follows: Overruling plaintiff’s motion the cross-examination to strike Corbett; refusing permit of defendants’ witness counsel-for plaintiff to a textbook in cross-examination of expert use defendants’ witness, exception Wilson. As to the latter there is no record any ruling, former, ruling. plain and in fact no final As length, Corbett, tiff’s counsel cross-examined defendants’ witness at concerning testimony his method in plaintiff used unsafe dynamite cap, finally asking ques placing tying without “Q. being tion: it happen You never saw accident while was ’’?way handled that The witness that he had and answered on further told where occurred: The continued thus: questioning “Q. it examination you No, very present happened? Were A. I when was Q. close, though. Then, you you what know about the method —did No, ? being see the me; loaded that A. I that told person hole seen Q. actually by hearsay? I didn’t see"it. You know that by hearsay; I exactly it; A. know that that is I didn’t see it. Mr. jury Stout: I ask that stricken and the be out instructed disregard Objection it. The Court: will overruled. Motion be ruling will be which overruled. To Court coun- plaintiff, sel, duly excepted.” Clearly spec- then and there there no was ification as how much of this cross-examination was be says refusing stricken. Plaintiff now error “in was to strike objection by appellant hearsay testimony upon out of defendants’ witness that another accident had resulted of the same use loading appellant method of hole as he drilled was when was using injured.” It is ground obvious that no such was stated to trial Moreover, plaintiff’s brought court. who counsel out answer that, accident, saw have this witness such an he could seen it with- seeing being plaintiff out loaded the accident. the hole before While might have upon been entitled some action a proper court request, ruling may complain. this record shows of which he no judgment All affirmed. concur. Appel State of Missouri at the Relation R. Victor Bessie wife, Relators, C. Appel, William Edward Hughes, Lyon Judges J. St. Louis McCullen, Anderson, Appeals. 38383. 173 W. Court of 45. No. July 6, One,
Division Denied, Rehearing July 20, 1943.
Cobbs, Logan, Armstrong Boos & for relators. *3 Ely Smith, Ely Smith, Jr., Victor B. Harris
Luther Luther respondents. Harold Hanhe for G.
DALTON, having reassigned, adopt C. This cause been we quotation without marks a prepared statement of facts and issues one of our associates.
This cause quash opinion is in certiorari to the record and of Appeals (Mo. the St. Louis of Appel Court Gerber v. et al. App.), (2d) 164 W. 225. proceeding we look the such to only for the facts. ex rel. State Massman Construction Co. v. Shain al., 1003, (2d) Pleadings et 344 Mo. 130 491. and documents . to of appeals opinion referred in the court be considered. State ex Enginemen Brotherhood of Locomotive and rel. Firemen Shain 666, 123 S. al., 343 Mo. appear facts the of the court of
The a September 1925, Leopold Ackerman of- 26, these: owned tract County, fronting on Ladne, St. Louis 698.22 the north land in feet extending Clayton and north 727 feet to the side of Road railway. September 26, way 1925, On Ackerman and of of street conveyed portion Plopkins of the tract Edward J. the wife east conveyed Hopkins and wife fronted 257.07 portion and wife. The 178.92 feet thereof extended north Clayton Road, and east feet on railway right way, but the 78.15 feet west 727 feet the street 492 Hopkins deed to Ackerman only 353.84 feet. north extended land line of along the west walkway 10 in width feet
reserved conveyed, which reservation follows: Ackerman, Leopold “Reserving, however, unto the said contig- (being the owner herein parties of the first a distance conveyed for herein property of the uous land west width, way ten feet right of Clayton Road) a 353.84 from feet southwardly from running conveyed, property herein over the Railways south line Company along the west of the Clayton Division line of property [46] herein of the United conveyed westwardly north along the tract, thence to the north line of Summit southwardly along the west feet; thence tract 78.15 line of Summit line of the north conveyed to the 353.84 feet property herein line of walk for be used Clayton Road, which shall pedestrians. and shall land, run with the shall reserved “The easement herein owner Leopold Ackerman
inure and use of the said to the benefit assigns, mentioned, heirs contiguous land hereinabove herein, their heirs grantees use of to the as well as benefit assigns.” A. Gerber conveyed to Fredrick May wife 1926, Ackerman and Hopkins parcel, immediately lying west parcel the land Road, and Clayton north side fronting 441.15 on feet parcel line of Gerber The east extending 353.84 feet. north in the Ackerman reserved west line coincides with-the parcel, the Gerber dwelling house on There Hopkins. deed to is by occupied conveyance Gerber, was house, prior which dwelling toward fronts Gerber. The Ackerman, thereafter Clayton 38 west of Road, and is feet north of and is feet of)' garage (north walkway. back of There is reserved leading dwelling from driveway east of dwelling, and there line of feet the west garage Clayton Road. driveway parcel Hopkins on the foot reserved fence, woven wire erected is a parcel. Gerber There walkway, which is the east reserved line of the Gerber, on west Clayton north from fence extends parcel. The line of Gerber’s Clayton north of gate in the fence feet Road, and there is dwelling. north Gerber’s and 104 feet Road a plat.-of of record their put and wife Hopkins March Whitfield Lane. The sub- to be known as parcel for a subdivision unnumbered not numbered. The and one had 5 numbered division lo#ts *5 plat for Whitfield parcel. of the lot was the southeast along roadway 20 feet in width easement for provided Lane Clayton from for 230 feet north Hopkins parcel line of west roadway the northeast and easement curved to Road, then the and railway the street distance south of point short at a terminated way. appears thus roadway that the west 10 feet of the easement of Lane, Whitfield for 230 (to gate) feet north from Clayton Road was, speak, superimposed so upon to 10 foot walkway reserved in the Hopkins. Ackerman deed to It was stated' on the Whitfield Lane plat roadway subdivision foot provided roadway thereon was forever be a to “for common use and benefit of the owners of the lots this subdivision.”
April 15, 1940, Hopkins conveyed and wife Whitfield Lane sub- division, except the lot, unnumbered to Appel Victor R. wife. and This deed “subject over the west feet ten property said to be pedestrians used as reserved” in Hopkins. Ackerman deed to August 12, 1940, conveyed Appel and wife I-I. William Ilusmann wife, (adjacent Gerber) lot 1 of Whitfield subdivision Lane “subject building lines, easements, conditions, restrictions, and ' limitations now of record.” n October, 1940, Appel “began and Husmann to cut down the twenty trees” and roadway” “to construct foot north from Clayton Road. The west ten of this was on roadway, stated, feet the 10 foot walkway Ilopldns. reserved the Ackerman deed to sought Gerber injunction enjoin them, “defendants and each agents their servants, subcontractors, contractors and from constructing proposed twenty roadway any roadway foot upon said portion same, ten-foot easement or or in interfering enjoyment otherwise use and of said damages walkway by by plaintiff, .to to assess said cutting walkway.” reason of the down of the on said trees A temporary restraining made, trial, uppn order was but temporary He order was dissolved and Gerber’s bill dismissed. appealed Appeals and that court the St. Louis Court of reversed judgment and remanded cause with directions to enter injunction judgment “granting perpetual in favor of Gerber say prayed petition”, opinion and it is this relators controlling decisions of this court. certain conflicts say appeals the court of conflicts Relators 679; ux., 309 Mo. Gardner with Bales et ux. v. Butts 604; Stotzenberger v. al., (2d) 74 S. W. v. Maffitt et 335 Mo. (2d) 391, 58 W. 983 Perkins, 332 Mo. S. . (cid:127) respective court of stated the In the as follows parties in the Gerber case contentions [164 : l. c. 227] n Ackerman (Gerber) “Plaintiff contends deed strip of land feet in width wife reserves ten Hopkins wife to pedestrians, and that the easement as walk be used each of the land on side of and use of the owners benefit inures to roadway a vehicular on said the construction and that strip, *6 strip contends that the would violate tlie reservation. Defendant against any strip purpose inhibition for the use of reserved the only, other pedestrians applies than as walk for Ackerman grantees, right not to grantees the and that the vested strip to such use of the interfere with the as does not reasonable enjoyment easement, a ve- strip the the the use of roadway enjoyment hicular would the reasonable not interfere with of the easement.” stating
After respective goes the court of contentions the say on to language : “The of the reser- [164 227-228] is unambiguous. meaning vation quite provides Its is clear. the walkway easement reserved shall inure to and use the benefit both grantees. necessarily Ackerman being so, and the This that the against any purpose inhibition the use the follows for other than pedestrians words, walk applies to both. In other for since the easement both, inhibition and use for benefit necessarily against both, so that neither can use the purpose other than as a pedestrians. walk for
“It grantees is true that would have had the to use strip the reserved express as a in provision without an reservation effect, provided such use did not interfere with walkway by its use aas Ackerman, but such case in Ackerman, to use strip been para- would have right. mount However, any event, construing in reservation, in ignore we parties the fact undertook, express terms, cannot that the in grantees save strip walkway.” to use the as a (Italics ours.)
Kelators construe appeals, especially of the court of part we have holding person that the same at the italicized,tas same time have easement interest and a fee title same land. If the ruling so holds then such conflicts with the ruling in Bales, Gardner, Stotzenberger and the cases, supra. Bales ux., et ux. v. Butt's supra, mandatory was to obtain a in- junction to restore water connection severed the defendants. Andrews, April One 8, 1895, since owned occupied, until October lying immediately a five acre tract south of Duncan street Missouri, Joseph, upon St. which tract houses, there were two part on the north of the tract and one on part. the south A water ran pipe east and street, west Duncan and Andrews, years, had a water pipe on the connecting tract pipe extending Duncan street and serving south the house part north serving the tract and also the house on the part. south October 16, conveyed Andrews part south of the tract n plaintiffs Bales, and March 25, 1921, conveyed he the north part of the tract to defendants Butts. Butts, they Defendants after possession came into part of the north tract, severed pipe water connection to the Bales house on the south tract, sought mandatory injunction the Bales as stated. laying alleged Butts “that pipe
Plaintiffs ever since the of said the house on property occupied by plaintiffs said now has' been connected with pipe supply through said water and received its water *7 same; property became, that the north thereof and at all times after laying pipe is, subj'ect the was, said and now to and easement right, in property by favor of the plaintiffs owned now purpose of pipe running through said water connecting same and property by with plaintiffs; now owned plaintiffs that when purchased said real from and Andrews wife it was estate understanding they agreement and should have the free use of said pipe through water from said Duncan property street by now owned supplying defendants for property water to the so purchased by they the plaintiffs, purchase and that did so said from said Andrews wife. . plaintiffs . . That have to have water pipe said remain unobstructed; unmolested and there practicable is no other or to feasible receive a water supply at their property thereto, or extend a pipe water and that the means [48] obtaining water is through said pipe; de- wantonly deprived plaintiffs fendants severed connection ’’ water. case, granted The in court, asked, trial the Bales the relief appealed. defendants S. W. l. c. The recites [274 682] deed from plaintiffs Andrews no reference to to “makes water pipe controversy, (Bales) in nor respondents ' to receive through water water . . pipe. said . and wife Andrews’ conveyed 1921, by warranty land April -2, their on defendants deed, and the no pipe, latter contained reference to the water nor any by respondents any person.” claimed other the course of the the court said [274 681]: “Respondents impressed claim that land defendants’ easement in their perpetual favor for maintenance of water connecting dwelling pipe Joseph, their house with a water main in St. ' hand, appellants that, Mo. On the other it contended by on the by record, plaintiffs facts disclosed entitled maintain not Turning evidence, to the we Frank action. find that Andrews and wife were the owners and the common source title of the real by conveyed plaintiffs them to and defendants estate as described evidence; that while the owners of all land, in said and about years trial, the date said and wife before Andrews constructed controversy, pipe ground beneath the water surface from by south, plaintiffs -lands street over the owned Duncan defend- Andrews and From wife constructed said water pipe ants. the time they 16, 1920, agreement when executed written up to October respondents, there was convey part impressed of same to no easement belonged every of same land, on as the whole and ^said owner, belonged the same long Andrews and wife. as these ‘So lots upon the lot, of servitude could be no in favor one there ’ land. Scott other; over own for a an easement man cannot have Beutel, (64 Va.) 1.” Grat. supra, al., Relators, brief, analyze Maffitt et Gardner v. in an old subdivision about as follows: Maffitt who owned lot lot said Louis, that each street, contended south side Pine St. over the enjoyed and restrictions certain easements subdivision filed at the time plat lots, other virtue certificate originally opened in subdivision 1895. The subdivision was Rex held that Realty Company. the Rex court laid out Realty until sold Company could not have easements created not it could because, being property fee, lots, the owner of grant an easement. to itself lesser estate such as J., Sec. quoted p.
In the Gardner case the court C. a tract long as c. : “So n. as follows 606] [74 and servient ownership, in one there can be no dominant remains *8 rearrange and the owner portions, tenements as between different any possible of quality servitude.” W. say court, in on S. case, And the Gardner went to [74 Bernheimer, 472, 140 N. Y. S. (2d) c. : “Hill v. 78 Misc. l. 607] tract an owns entire thereunder, effect, that one who cited in holds redistributing the by distributing or adjoining parcels land, of or until severance portions, of no easement burdens the various creates Mayor of and Council To Packer v. of title like effect is occurs. in Hence, City 406, 407, 3 661. of 129 A. N. J. Misc. Woodbury, certificate notwithstanding plat with the instance, the recorded cannot be said building thereon, it line restriction indorsed as to until a or restriction grant of there was effective such the Rex than person other of occurred. Until some severance title to acquired title subdivision, Realty Company, owner the entire of right perfect had a thereof, the whole owner some party fairly agreed upon between it and any manner convey in conveyance made.” was to whom first injunction restrain Perkins, supra, Stotzenberger v. The defendant roadway land. plaintiff’s across obstruction fee acquired he adjoining land purchased when he claimed that the fee and that he owned roadway. contended plaintiff in the Defendant obstructed the an easement. had that defendant held that the defend- so. It was to continue to do and threatened road ruling court said right. the' case the In only an easement ant had : c. 1. 987] [58 under estate, has, the defendant dominant the owner “As right put and maintain deed, interpretation our right thereon and the passage roadway strip a condition passage portions proper free on all of as he thinks such or necessary repairs, purpose make or for connected with the enjoyment [49] his estate; bnt the plaintiff as owner the servient L., obligation repair. estate is under no maintain or 9 R. Sec. C. hand, right plaintiff On the other there full remains dominion strip except and use so far as a limitation thereof enjoyment is essential easement.” to the reasonable of the dominant (American Ed.), 280, Goddard on it stated: Easements is any right grantee “The existence of an easement does not confer that the owner of the should not use land servient tenement his any way enjoyment easement; which inconsistent with is not his prevent granting person neither can it to a the landowner third grantee another easement or if it not does hinder the first having enjoyment also, Campbell full his easement.” See 628; al. Kuhlmann, App. App. v. Schroer Mo. Brooks, 204 Mo. ruling Campbell l. c. 57. The in the case stated in the headnote as follows: grant
“The implication only of an carries with it; necessary enjoyment such incidents as are reasonable therefore, grant of a which is not exclusive its reasonably terms, enjoyed being exclusive, and which can be without grantor assigns leaves in the of user in common grantee.” by respondents It is conceded cannot have an easement time; interest and fee land at it is title in the same the same person, conceded that where such in the same the ease- interests vest merged interest in the title. But that the ment fee it is contended hold the court of does not otherwise. respondents’ brief that holds that is stated abridged rights owner of the dominant (Hopkins) “the servient (Gerber) in a ten foot” reserved in the Ackerman owner *9 “by twenty roadway starting top deed to build a foot vehicular on walkway. completely of and over said ten foot” And it further opinion “may employed brief 'the have respondents’ stated in that necessary determinátion the decided. expressions not to the of issue” a argument respondents amounts contention that held that roadway upon west 10 of 20 the feet the foot the construction walkway was an unreasonable with 10 foot Gerber’s interference walkway rights 10 easement in the foot reserved in the Ackerman Hopkins, complained and that the of are mere deed to statements obiter. course, portion respondents’ opinion, if the Criticised of
Of necessary to a determination of the decided not issues supra, basis, decision, for the then not be not the this court would and was quashing the on certiorari. ex rel. in State authorized 793, et 345 Mo. al., (2d) 355, al. v. Smith 135 W. Brigance et S. 498 (2d) Shain, v. 66 W. 358; rel. Talbott Mo.
l. State ex c. involving rulings in proceedings conflicts 826, 828. “Certiorari inconsistencies, if nonconsequential with dictum not concerned They the arguendo opinion. do not in an rise any, appearing of St. ruling.” E. E. Ass’n dignity ex rel. Terminal State Hughes al., Appeals, Judges of Louis Court of St. Louis Mo. decision presented While for we that the issue concede
n wasGerber’s by interference right injunction prevent relief easement,” enjoyment walkway with the use and “ten his foot hardly question be a respondents while “there can state that roadway vehicular that the execution of purpose the to construct a abridge strip walkway would the ground reserved for plaintiff (appellant), easement,” respondents found for while “with directions judgment the cause remanded reversed judgment (granting perpetual plaintiff to enter in favor of necessarily injunction follow prayed petition),” as does not his basis, not for respondents primary that if not, basis, as did directly granted, in conflict the relief of law announce conclusions controlling court. decisions this Definitely, grantee Hopkins, court that Appel, held Gerber, Ackerman, had grantee the fee and that owned right way purpose foot for sole úselas walkway that reserva- pedestrians. Further, for the court held against use of the tion in the Ackerman deed was an “inhibition any way purpose pedestrians”; than a walk for other as grantee “necessarily” against Hopkins inhibition and his applied fee, limited Appel; Appel', was restricted and the owner of the holder “reservation” to the same use of the any theory upon easement. The court’s not rest decision does alone unreasonable for a walkway interference (owned by Gerber), (by the owner of the clearly fee) appears [50] grantees would following true that statement: “It walkway strip without have had the the reserved as a use effect, provided such express provision reservation to that walkway Ackerman, but use did not interfere with its use as strip case the of Ackerman to use the such (Italics ours.) The paramount right.” would have been the de- (grantee cision, therefore, upon holding Appel squarely rests fee, subject Hopkins ease- and the owner of purpose than ment) had “the other no use (and grantee, pedestrians,” as a walk for Ackerman right. Gerber) paramount had no grantor grantees both the and the
The' court held that further *10 wit, walkway “the inured right, the same easement” which had grantees.” and the This “to the benefit and use of both Ackerman
499 by words, is evidenced the further statement: “In other since easement is both, necessarily and use inhibition is for benefit against both, that so neither can for purpose use other than a pedestrians.” (Italics as walk ours.) Respondents, there- for fore, person ruled that the same at same time had land, grantee interest and fee title in the same and that the holder the fee by was much use as limited in the of the fee “reservation” as the one favor the easement whose was reserved. ruling, respondents so have announced a conclusion of law in conflict controlling court, with the latest decisions of supra. this suggested respondents been has that have ruled the case upon the theory that the reservation the deed created an ease- grantor in the walkway ment for a provisions that of the deed further express amounted to an conveyed, restriction on fee so owner (subject reserved) the fee to the easement restricted of the terms deed to use no other purpose walkway. than words, In other that in effect the court undertook to construe the terms de- of the deed and to termine parties the intention of it, did determine and in so doing controlling contravened no of the decisions court. The cause was not ruled on theory. Respondents such purpose admit that the enjoin interfering the action was to plaintiff’s defendants from with walkway suggestion easement. There plaintiff sought is no enforce restrictions the use real Respondents estate. concede language unambiguous meaning clear, and its resfirvation and hold plaintiff has They an easement. further hold that de- fendant Appel, fee, the owner (the has an same easement) created reservation in same same deed and the same real estate.
We are not concerned controversy, with the merits nor with plaintiff whether Gerber or is not l'elief. entitled to Hoyt State ex rel. Shain, v. 338 Mo. S. W. (14-16). question We are concerned of whether respondents have law our announced in conflict with conclusions controlling Appeals latest decisions. “Courts of courts last resort, and, acting within their and not in violation jurisdiction decisions, litigated of our judgment determine issues their dictates great freedom as this court. State ex rel. v. Ellison, 151, 156, Mo. 274, 275(2).” State ex rel. Hoyt Shain, supra. It is not (by contended that we have prior decision) determined roadway (under whether the construction of vehicular the facts shown) strip ground on a reserved for would be interference with the easement, question unreasonable respondents. i s Having respondents reached the conclusion that have, in opinion, portion of their criticised announced conclusion of law *11 court, it contrary controlling latest decisions of to the follows made respondents and the record portion said of said Bradley and quashed. It is so ordered. thereto should be pursuant GC., Osdol, Van dissent. C., adopted foregoing opinion by Dalton,
PEE CUEIAM: The judges All concur. court. Ap- Corporation, Lines, Inc., James S. O’Brien Vandalia Bus pellant. (2d) 76. 38285. 173 S. W. No. July One,
Division Rehearing Denied, July 20, 1943. appellant. G. Jaeckel Dearing Marsalek c& and J.
Moser,