Opinion
May 21, 1951.
1. — Appeal and Error. Suit to enjoin maintenance of a structure in what was alleged to be an alley was an equity case and must be decided de novo on appeal.
2. — Appeal and Error. While the decision of trial court in an equity case should be accorded due deference on appeal, appellate court must render such a decree as it thinks should have been rendered in trial court.
3. — Municipal Corporations. Where city voluntarily withdrew as a party to suit to enjoin maintenance of a structure in what was alleged to be an alley, owners of other lots abutting on alley were not entitled to an injunction on ground that structure constituted a cloud upon city's title to alley.
4. — Equity — Municipal Corporations. Landowners, who had encroached upon abutting alley as platted so that alley as used encroached some eight feet upon defendant's lot on opposite side of alley, were not entitled to an injunction restraining defendant from further encroachment on alley as used and requiring him to remove foundation for building erected at rear of lot as platted partly on land used as alley, since such use by defendant of his land did not result in irreparable injury to owners of land on opposite side of alley and they did not come into court with clean hands.
5. — Municipal Corporations. Under doctrine of "relative inconvenience of comparative injury", defendant should not be required to remove concrete foundation built at rear of his lot as platted, though it encroached some eight feet upon alley as used due to encroachment upon alley as platted by owners of land on opposite side of alley, where alley could be restored to its platted course with but trivial inconvenience and expense to owners of land on the opposite side thereof.
6. — Injunction. The granting of an injunction rests in sound discretion of court and under "relative inconvenience or comparative injury" doctrine, where injury to plaintiff is trivial compared with injury to defendant, equity in sound exercise of such discretion will refuse to grant an injunction.
Appeal from Circuit Court of Stoddard County. — Hon. James V. Billings, Judge.
REVERSED AND REMANDED WITH DIRECTIONS.
Blanton Blanton, R. Kip Briney, William A. Settles for Appellant.
I. The respondents, Ada Duke and Emma Rebert, were not entitled to injunctive relief against the appellant for the alleged obstruction where title to the property allegedly obstructed is in question. These respondents, having first failed to have the question of title determined, were not entitled to this injunctive relief. Real Estate Inv. Co. v. Winn, 110 S.W.2d 550, 233 Mo. App. 26; Bowzer v. State Highway Commission, 170 S.W.2d 399, 402 (S.C. Div. 1); St. Louis Smelting Co. v. Hoban, 209 S.W. 119, 357 Mo. 436; 43 C.J.S., Injunction, Paragraph 55, page 515; 28 Amer. Juris., Injunction, Paragraph 132; cf. Echelkamp v. Schrader, 45 Mo. 505. II. As both respondents, Ada Duke and Emma Rebert, have themselves obstructed the alley, as platted and dedicated, on the east side thereof, they are in no position to complain in a court of equity against an alleged obstruction of an alley as allegedly used, but where, in fact, the alleged obstruction was built upon the lot, as platted. Plaintiffs below, respondents here, therefore do not come into Court with clean hands, and are not entitled to equitable relief. Wainscott v. Strode, 237 S.W. 196 (K.C. App.), Syl. 2; Rose v. Houser, 206 S.W.2d 571, l.c. 576, 577, Syl. 3 and 4 (K.C. App.); Union Electric Land Co. v. Graffenreid, 78 S.W.2d 571, 572, Syl. 4, 229 Mo. App. 625; Nebraska Telephone Co. 68 Neb. 772, 95 N.W. 18; Bullard v. Esper, 72 F. Supp. 548 (D.C. Texas); 21 C.J., pages 185, 186 Paragraph 168. And this maxim is enforced, even though not raised by counsel, on Court's own motion. Frank Adams Co. v. Westinghouse Co., 146 F. (2) 165 (C.C.A.Mo.); Creamer v. Bivert, 113 S.W. 1118, l.c. 1122, 214 Mo. 473; Leeper v. Kurth, 163 S.W.2d 1031, 349 Mo. 938. III. The City, having withdrawn from this case, after having been one of the original parties-plaintiff, makes no claim to title to the property upon which the appellant has erected his foundation. Even if it had claimed title to the property, the evidence was insufficient to show that the parcel of land upon which the appellant has erected his foundation was ever claimed by the City to have been obtained by adverse possession. The most that the evidence in this case shows was that such use as was made, if any, of the rectangle in controversy, was permissive and not hostile or adverse. Mere permissive use conveys no title by prescription. Anson v. Tietze, 190 S.W.2d 193 (S.C.Div. 2), Syl. 3, 14, 354 Mo. 552; Kelsey v. City of Shrewsbury, 71 S.W.2d 730, 335 Mo. 78; Courtner v. Putnam, 30 S.W.2d 126, 325 Mo. 927; Owens v. Thomas, 98 S.W.2d 561, 339 Mo. 532. And mere use over a long period of years does not constitute a dedication or give the public title by adverse possession. Mulik v. Jorganian, 37 S.W.2d 963, 326 Mo. 106; Kelsey v. City of Shrewsbury, 71 S.W.2d 730, 335 Mo. 78; Connell v. Jersey Realty Co., 190 S.W.2d 49, 352 Mo. 1122. And burden was upon the respondents to establish that such use was adverse. Anson v. Tietze, 190 S.W.2d 193, 198, 199, Syl. 12, 13, 15, 16, 17, 354 Mo. 552; Burnside v. Doolittle, 24 S.W.2d 1011, 1016, Syl. 5 and 6, 324 Mo. 722, 731; 39 C.J.S., Highways, Paragraphs 9, 11, page 928, Paragraph 23, page 942. IV. Where there has been an actual dedication of the alley, the respondents could obtain no additional rights by prescription, as the rights of the public are confined to the strip, or alley, as actually dedicated. California Special Rd. Dist. v. Bueker, 282 S.W. 71, l.c. 73, 221 Mo. App. 435; Brown v. City of Carthage, 30 S.W. 312, 128 Mo. 30; Hamilton v. Garrett, 62 Tex. 602; North Beach v. North Chesapeake Co., 191 A. 71, 172 Md. 101; Township of Meridian v. Palmer, 273 N.W. 277, 279 Mich. 586; 26 C.J.S. 137, Paragraph 51, Notes 51, 52. V. Even if the evidence showed that the public had certain rights in some of the alley beyond the dedicated boundaries of said alley, there was no evidence offered in this case to support the decree for the reason that there was no proof of adverse user of the rectangle of land described in the decree. The only right that respondents, Ada Duke and Emma Rebert, would have in the alley as a result of adverse user for the statutory period is limited to the traveled or used portion of the alley. There was no evidence to show that the portion of the appellant's lot, as platted, upon which he has erected his foundation, was ever traveled upon, or to what extent it was used, if it was ever used. City of Higginsville ex rel. v. Alton R. Co., 171 S.W.2d 795, 805, Syl. 23, 237 Mo. App. 1204; Hall v. Flag Special Rd. Dist., 296 S.W. 164, 165, Syl. 2 (Spfd. App); Eckerle v. Perry, 297 S.W. 424 (Spfld. App.); Roth v. Hoffman, 111 S.W.2d 988, 992 Syl. 4, 234 Mo. App. 114. VI. If the respondents feel aggrieved by the erection of the foundation by the appellant upon his lot, as platted, the remedy lies in their own hands. All they have to do to have a full 16 feet alley, the entire length of the block, is for them and others similarly situated to move their fences and outbuildings back to the true east line of the alley, as platted. They have not and cannot acquire title to that portion of the platted alley they occupy by adverse possession against the City. Bell v. Walkley, 27 S.W.2d 456, Brown v. City of Carthage, 30 S.W. 312, 128 Mo. 10; Caruthersville v. Huffman, 171 S.W. 323, 262 Mo. 367; Otterville v. Bente, 144 S.W. 822, 240 Mo. 291; Pacific v. Ryan, 28 S.W.2d 652, 654, 325 Mo. 373. And failure of the City to grade or otherwise improve the alley does not constitute abandonment of the alley, nor authorize the abutting owners to take possession of the alley, as platted, nor any portion thereof. Marshall v. City of Springfield, 221 S.W. 17; Robinson v. Korns, 157 S.W. 792, 790, 793, 250 Mo. 663.
Cope Ponder, C.A. Powell for Respondents.
I. Since in this case the title and right to possession to the land which has been used as an alley for more than sixty years is only incidentally involved and since the facts in the case relative to the title and the right to possession are clear, equitable relief by injunction should be granted. St. Louis Smelting Refining Co. v. Hoban, 357 Mo. 456, 209 S.W.2d 199 L.C. 124. II. Since the alley described in the petition has been used by the public openly, visibly, uninterruptedly, and continuously, for more than ten years, and in fact for more than sixty years, without objection from anyone and with the knowledge of all the persons interested, the title to the same and the right to use the same as an alley has become vested in the public by virtue of the Statute of Limitations, and the Respondents, having an especial interest in the alley because it affords access to the rear of their property, have the right to maintain this action to prevent the alley from being obstructed by the Appellant. Sec. 1002 Mo. R.S.A.; Longworth, et al., v. Sedevic, 165 Mo. 221 L.C. 230-1; 65 S.W. 260; Smith v. Santarilli, et al., 207 S.W.2d 543 (Mo. App.) III. Such use by the public is presumed to have been adverse since there is no evidence that it was not adverse. The burden is on the Appellant to prove that the use by the public was not adverse. Smith v. Santarilli, et al., 207 SW (2) 543 (Mo. App.) IV. Since the landowners on the west side of the alley set their fences and buildings back on the west line of the alley as used many years ago and permitted the public to use the portion east of that line as an alley, and the public accepted and used the same as an alley, there is an inference of intent to dedicate the same as an alley and it became a public right-of-way. Gilleland v. Rutt, 63 S.W.2d 199 (Mo. App.); Borchers v. Brewer, 271 Mo., L.C. 143, 196 S.W. 10, L.C. 12. V. Although the alley as used has been worked some by the City, the public has the right to continue to use it since it has been in continuous use for more than ten years, even though no public money or labor were expended thereon, since Sec. 8485 Mo. R.S.A. is a special statute of limitations applicable to public roads outside of incorporated cities and does not apply to streets or alleys in cities. Sec. 8485 Mo. R.S.A.; Laclede-Christy Clay Products Co., v. City of St. Louis, 246 Mo. 446, 151 S.W. 460; Odom et al. v. Hook, et al., 177 W (2) 165 (Mo. App). VI. A. Section 1002 Mo. R.S.A., the ten year Statute of Limitations respecting actions for recovery of lands, applies to all actions, whether legal or equitable. Sec. 1102 Mo. R.S.A., Note 7; Branner v. Klaber, 330 Mo. 306, 49 S.W.2d 169, L.C. 177. B. The title of the public acquired by adverse possession is a legal title, good either for the purpose of offense or defense, and it is not necessary to specifically plead the statute. Sec. 1002 Mo. R.S.A.; Laslede Land Improvement Co., v. Epright, 165 Mo. 210, l.c. 217-8, 177 S.W. 386. VII. Although it has been held that since an abutting owner owns the fee to the center of a street or alley he may bring an action of ejectment against one who permanently obstructs the half of the street his property abuts (Thomas v. Hunt, 134 Mo. 392, 35 S.W. 581), there is no case which holds such action lies in his favor as to an obstruction on the other side of the street. The Respondents in the case at bar have no right to maintain an action of ejectment against the Appellant for the reason the obstruction erected by the Appellant is on the half of the alley adjacent to his property. The Respondents do not have the title nor right of possession thereof subject to the easement of the public. Secs. 1529 et seq. Mo. R.S.A. VIII. Since the buildings belonging to the respondents were erected by their grantors many years ago and have continued to exist in the alley as platted and on the east side of the alley as used, whereas, the concrete foundation erected by the appellant just before this suit was brought and on which foundation he plans to erect a building is only in that portion of the alley as used and not in any portion of the alley as platted, entirely separate matters are involved and the maxim of clean hands on the part of the respondents is not involved. That maxim applies only to conditions related to the subject of litigation. The maxim would apply if Mattie Malone, whose property is on the same side of the alley as appellant's and who recently erected some steps extending into the alley as used, were a party plaintiff. Williams v. Beaty 139 Mo. App. 167 l.c. 174, 122 S.W. 323; Moore v. Carter 356 Mo. 351, 201 S.W.2d 923; McClure v. Wilson, 185 S.W.2d 878, l.c. 883, 238 Mo. App. 824; Rudd v. Kettinger, 217 S.W.2d 651, 309 Ky. 315; 21 C.J., p. 189, Sec. 175.
From the issuance of an injunction, defendant has appealed.
The petition was filed in Butler County and went to Stoddard County on change of venue. As filed, it contained three counts, the first prayed for an injunction, restraining and mandatory; the second count was to quiet title and the third count was ejectment. In the first count, when originally filed, the City of Poplar Bluff, F.A. Pearce, Mote Cone, Ada Duke, C.M. Bagby, Lewis H. Mills, Jr., and Emma Rebert sought to enjoin the defendant from maintaining a structure in what was alleged to be an alley in the City of Poplar Bluff.
In the second count, the City of Poplar Bluff, alone, sought to quiet title to part of what was alleged to be an alley of that City.
In the third count, the City of Poplar Bluff, alone, sought to eject defendant from the same piece of ground described in the second count and to collect damages in the sum of $1000.00 for unlawfully withholding the same and for $100.00 per month rent from the date of the judgment prayed for until possession was delivered to plaintiff.
This petition was filed October 22d 1947. On October 24, 1947, two days later, Lewis H. Mills, Jr., filed his motion asking the court to remove his name from the list of parties plaintiff and that motion was granted. On the 10th day of June, 1949, the City of Poplar Bluff filed a motion asking the court to dismiss it as a party plaintiff and on June 20th, that motion was sustained. At the close of the evidence at the trial, the court dismissed the cause as to plaintiffs, F.A. Pearce, C.M. Bagby and Mote Cone.
On the 20th day of June, 1949, the court also sustained defendant's motion to dismiss counts 2 and 3 of the petition and overruled a motion to dismiss count 1.
The case went to trial in Stoddard County on the 30th day of July, 1949 and on the 7th day of October, 1949, the court rendered a decree restraining the defendant from further encroachment on said alley and commanding him to remove a foundation he had built on the land in controversy. From this decree, defendant appealed. From the foregoing statement, it will be seen that the cause is now before us on count 1 of the petition, only, and with two plaintiffs still in the case, to-wit: Ada Duke and Emma Rebert.
The evidence showed that in 1872, Kitchen and Bartlett's Addition to the town of Poplar Bluff, Butler County, Missouri was duly platted, filed and recorded. This addition, which contained approximately 30 city blocks, was four blocks wide and in some places 8½ blocks long. The block in controversy here is Twenty One, which is near the center of this addition. Bartlett Street runs east and west to the north of Block 21 and Almond Streets runs east and west to the south of it. Running north and south on the west is B Street and north and south on the east of it is C Street. On the original plat, an alley runs north and south through the center of Block 21 and north and south through all the other blocks in the addition, making a uniform alley way system. The alley as platted in Block 21 continues straight north through 4½ blocks from Block 21 and south through 3½ blocks. Block 21 contains 12 lots, six on each side of the alley, which is 16 feet wide. The lots were each 142 feet long, east and west and 50 feet wide, north and south. The defendant owned Lot 7, which was the southernmost lot on the west side of the alley. He bought it in 1944 and his deed called for "Lot No. Seven (7) in Block No. Twenty-One (21) of Kitchen and Bartlett's Addition to the original town, now City of Poplar Bluff, Missouri, as platted and recorded in the office of the Recorder of Deeds of Butler County, Missouri."
It seems from the evidence that for many years the alley had not been used as platted. While it started in at the north end as platted, it veered gradually to the west until at the south end of Block 21, which was the southeast corner of defendant's Lot No. 7, it had encroached upon his lot 8.4 feet. After the defendant purchased Lot 7, he had it surveyed and found that the alley, as used, was on that 8.4 feet of the east end of his lot. He consulted the City Attorney and the Street and Alley Committee of the City Council and was told to go ahead and build on his property. He erected a concrete foundation for a building on the east end of Lot 7 of the approximate size of 30 by 70 feet. He dug the footings for the foundation 30 inches deep. He talked to his neighbor, who owned Lot 6 across the alley, (one Lee Payton) and his neighbor moved a building and fence back to the platted east line of the alley and built a concrete curb along it which left the full 16 foot alley between the curb and the east end of defendant's foundation.
Plaintiff Emma Rebert owns Lot 1 of Block 21, of Kitchen and Bartlett's Addition which is the north lot on the east side of the alley and Ada Duke owns Lot 5, which adjoins Lot 6 on the north, Lot 6 being the one owned by Lee Payton and being straight east across the alley from Lot 7 owned by defendant.
Ada Duke had purchased this lot and her deed described it as Lot 5 of Kitchen and Bartlett's Addition and there was no question or contention but what she had received a lot 50 by 142 feet without considering the alley. If the alley were to remain as used, she would get in addition to the Lot 6 purchased and paid for, a piece of ground 50 feet long and approximately 5.6 feet wide at the north end and 7 feet wide at the south end, all on the west end of her lot, and part of the alley as originally platted. Emma Rebert would not have been so fortunate as she owned the northernmost lot on the east side of the alley, Lot No. 1. The strip of land she would have received would come to a point at the northwest corner of her lot and would be 1.4 feet wide at the southwest corner, fifty feet further south. There is no contention that she does not already have all of Lot No. 1, which was 50 feet wide and 142 feet long. If the alley stays where it was originally platted, both plaintiffs, Emma Rebert and Ada Duke, will still have the exact amount of land as designated in the original plat of their respective lots.
The evidence further showed that in 1936 or 1937, the City, through the W.P.A., built a sewer down this alley. This sewer was put in the alley as originally platted. Some power line poles had also been erected by the city but they are in the platted area of the alley, as was also a gas main. Two telephone poles had been erected by the telephone company at the west edge of the alley as used and they are not located in the alley as platted.
Photographs were introduced showing the west end of Ada Duke's lot on which appeared to be a dilapidated and seemingly worthless shed, almost falling down and the top of which, the evidence showed, was leaning two feet out into the alley as used. A photograph of the north end of the alley, looking south, was also introduced in evidence, showing a shed on the west end of Emma Rebert's lot. This shed from the photograph appears to be of very little, if any, value. Other photographs were introduced showing all the buildings on the east side of the alley, as used, and these photographs clearly show all these buildings to be dilapidated, seemingly worthless and apparently fire hazards.
The evidence further shows that when the W.P.A. built the sewer, some surplus dirt was left from that operation and that the dirt in the excavated places had sunk and the City, with a grader, had leveled it up and at one time hauled some cinders and dirt to fill up a low place in the alley. Other than this meager evidence of upkeep, there was none, except that at one time the City had cut the weeds in the alley. At other times the weeds had been cut by the adjoining property owners.
The evidence shows that if the alley, as used, was maintained, it would be out of line with the north and south alley in three blocks south of 21 and 4½ blocks north of it.
This being an equity case, this court must decide it de novo and while due deference should be accorded the decision of the trial court, bacause he had the opportunity of seeing and hearing the witnesses, the responsibility is ours and it is our duty to render such a decree as we think should have been rendered in the court below. Young v. Moore (Mo. App.) 236 S.W.2d 740. McBee v. Twin City Fire Ins. Co. et al. (No. 7011) ___ S.W. (2) ___.
Lt us now revert to the petition and see what Ada Duke and Emma Rebert claim. They state that the City of Poplar Bluff for more than 40 years was the owner of an alley 16 feet wide, extending north and south from Bartlett Street to Almond Street and then they described this alley, not as platted and recorded as an addition to the city, but (so they alleged) as used throughout the years by people, who saw fit to go through it. They assert that they own Lots 1 and 5, respectively, on Block 21 of Kitchen and Bartlett's Addition to the town of Poplar Bluff and that the lots abut on the alley and that the use of the general public throughout the years has been adversely, under a claim of ownership by the City of Poplar Bluff and that the City of Poplar bluff has kept and maintained said alley and expended public money on it for more than 40 years. They then allege that the defendant built his foundation in the alley, is obstructing it and that that is wrongful and illegal and "will result in irreparable damage and injury" to the plaintiffs and will cause a cloud upon the title of the City of Poplar Bluff. They then pray for an injunction to restrain defendant from further building upon the foundation and asked the court by mandatory injunction to require the defendant to remove it.
Of course, there can be no cloud upon the title of the City of Poplar Bluff that these plaintiffs can complain of. The City of Poplar Bluff voluntarily withdrew as a party to this litigation. Plaintiffs undoubtedly then, if then they are entitled to win, must do so on the ground that they will suffer irreparable injury. We are assuming but not deciding that they have alleged facts showing it and not conclusions. Each of these plaintiffs has exactly the amount of land she bought when acquiring the property. By encroaching upon the platted alley of the City of Poplar Bluff, apparently Emma Rebert has had the use of a strip of land 1.4 feet wide at the south end of the west side of her lot and gradually coming to a pen point at the northwest corner thereof. She did not buy this small piece of land but acquired the use of it by encroaching upon the platted alley, the property of the City.
The same applies to Ada Duke. Their mala fides is greater than that alleged of the defendant Crossfield. They do not claim to have a deed to this additional land. Crossfield has a deed to all the land upon which he erected the foundation and he had a surveyor survey it before he started building on it. As between the parties to this action, the plaintiffs are in the worse position. They cry out against the defendant for his act, while they are more guilty of doing the same thing. They can suffer no irreparable injury by losing the land that they have appropriated wrongfully. Neither can they suffer an irreparable injury by virtue of the alleged obstruction, if Ada Duke will remove her dilapidated shed from the alley and onto the lot she owns. There is no evidence that either Mrs. Duke or Mrs. Rebert ever uses the alley as a road or passage way and if Ada Duke does, her obstruction, if any, is her own shed. We think that the plaintiffs have wholly failed to prove grounds for equitable relief or to show that because of the erection of the foundation, they will suffer irreparable injury. Neither do we think they come into a court of equity with clean hands. To show an encroachment by the defendant, they also show a prior encroachment by themselves and others, which makes that alleged of the defendant possible. Leeper v. Kurth, 349 Mo. 938, 163 S.W.2d 1031. Rose v. Houser (Mo. App.) 206 S.W.2d 571. 30 C.J.S. Equity, Sec. 93. Union Electric Land Development Co. v. De Graffenreid, (Mo. App.) 78 S.W.2d 571.
There is another ground on which relief should be denied and that is upon the doctrine of relative inconvenience or comparative injury of the parties. The granting of an injunction rests in the sound discretion of the court and where the injury to the plaintiff is trivial compared with the injury to the defendant, in the sound exercise of that discretion, courts of equity will refuse to grant an injunction. 43 C.J.S. Injunctions, Sec. 30. Rubinstein v. City of Salem (Mo. App.) 210 S.W.2d 382. Johnson v. Independent School District No. 1, 239 Mo. App. 749, 199 S.W.2d 421. Humphreys v. Dickerson 216 S.W.2d 427.
We think the injury, if any, to these plaintiffs is trivial. The defendant has built his foundation upon land that he purchased, described in his deed by reference to the recorded plat of an addition to the City of Poplar Bluff. He is asking for no more than he bought. To remove his foundation would entail considerable trouble and expenditures on his part. Plaintiffs may still have their lots in full and also the use of the alley.
The judgment and decree of the trial court should be reversed and the Chancellor is hereby directed to enter a decree for the defendant. Blair, J., concurs in Results. McDowell, J., concurs.