472 S.W.2d 378 | Mo. | 1971
This is an action to enjoin the obstruction of an easement. The easement was supposedly one for a joint driveway and passageway. The trial court decreed a permanent and mandatory injunction, and ordered that the obstructions be removed. Both the record and the briefs are inadequate for a satisfactory determination of the appeal. A stipulation of facts was received in evidence, but it is insufficient in several particulars.
The following facts are shown. Defendants are the owners of three lots fronting on the south line of Enright Avenue in St. Louis; plaintiff was “on and prior to the 11th day of September 1968,” the owner of three lots fronting on the north line of Delmar Boulevard; on November 3, 1928, Martha B. Turner, the then owner of defendants’ property, “created an easement for ingress and egress” as a driveway and passageway over the west ten feet of one
The record does not include plaintiff’s deed or otherwise show when it acquired its property, hence it does not show whether plaintiff was a necessary party to the suit seeking to cancel the easement; it does not show any of the proceedings in that suit, petition, order of publication, affidavit of publication or the judgment; hence, there could be only a presumption of the validity and effect of the order or judgment as to anyone. The easement itself, though recorded, was never introduced in evidence; no plat was offered to show the relative positions of the properties or what the easement really consisted of. A forfeiture of the charter of the corporate defendant in the suit to cancel is vaguely referred to, but nothing is shown in evidence; such a forfeiture, and its date, might affect the proceedings. No real facts are shown as to the user of the easement at any period, and such as were shown were stricken.
We are left to piece together from scattered statements what the appellants’ contentions are. Their brief is seriously defective under our rules. In this equity case, however, we consider it, especially in view of the determination we have made. The contentions seem to be: that the easement was only a mutual contract or agreement between the original parties for their own personal and mutual use; that it expired long ago, and that there is no “privity of contract” between plaintiff and the original grantor or her heirs (and we note that this is seemingly inconsistent with the stipulation, and generally with the law, Dalton v. Johnson, Mo., 320 S.W.2d 569; 28 C.J.S. Easements, § 46, p. 708); that plaintiff was guilty of laches in waiting two or three years after the sign was erected before taking any action; that the easement had been cancelled in the prior action already referred to; and that the easement had been abandoned by plaintiff, and public user permitted, contrary to its terms.
In its petition plaintiff prayed for a mandatory injunction but did not seek an
We have had a serious doubt of our jurisdiction, that is to say, whether title to real estate is involved in a jurisdictional sense. Our authorities on the matter of jurisdiction in easement cases are a little hard to reconcile. We have held that ordinarily an action to enjoin the obstruction of an easement does not directly affect the title to real estate in the jurisdictional sense, even though it becomes necessary for the court to find whether or not an easement exists; and that, in the latter instances, such findings are merely incidental or collateral to the granting or refusal of injunctive relief. Smith v. Santarelli, 355 Mo. 1047, 199 S.W.2d 411; Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721; St. Louis-San Francisco Ry. Co. v. Silver King Oil & Gas Co., Mo., 117 S.W. 2d 225; Georg v. Koenig, Mo., 370 S.W.2d 356; Bridle Trail Ass’n v. O’Shanick, Mo.App., 290 S.W.2d 401; Miller v. Berry, Mo.App., 270 S.W.2d 666; Burnett v. Sladek, Mo.App., 251 S.W.2d 397; Bushman Investment Co. v. McCaughey, Mo., 467 S. W.2d 865; Kansas City Power & Light Co. v. Riss, Mo., 312 S.W.2d 846. But it is further held that where the establishment or cancellation of an easement is in issue, and the existence or validity of the easement is adjudicated, title to real estate is directly involved in the jurisdictional sense, for the free and unlimited fee interest of one party is directly affected. Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894; Davis v. Lea, 293 Mo. 660, 239 S.W. 823; Billings v. Paine, Mo., 319 S.W.2d 653; Pendleton v. Gundaker, Mo.App., 370 S. W.2d 720; Dalton v. Johnson, Mo., 320 S. W.2d 569; Washington University Law Quarterly, 1964, Easements, p. 568 et seq.
Here, although plaintiff sought no adjudication of the existence of the easement, the answer did, in a backhanded way, raise an issue of its continued existence and asked for an adjudication accordingly. The Court accepted the issue and found that the easement was existing and valid. Under the group of cases last cited we have concluded that we have jurisdiction, but we hope that in future cases such issues will be more clearly and intelligently defined. Respondent’s motion to transfer is overruled.
We have further determined that the evidence was and is insufficient to support the decree for plaintiff, due to various omissions. The easement itself should have been in evidence, despite the stipulation. The proceedings in the suit to cancel the easement (petition, order and service by publication and decree) should have been shown; plaintiff’s deed, or at least the date of its acquisition of the property, should have been shown in order to determine whether it was a necessary party to the cancellation suit. While an action to
For the foregoing reasons the judgment is reversed. In the exercise of our discretion, however, the case is remanded in order that the parties may more effectively develop the evidence at another trial. They should be permitted to amend the pleadings if they desire to do so.
It is so ordered.
PER CURIAM:
The foregoing opinion by HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.