Summary
In Williams v. Diederich, 223 S.W.2d 402, 403 (Mo. 1949), a case involving boating and fishing privileges on a reservoir, it was held that since there was no language in the agreement that directly or indirectly inferred that the privileges were assignable or inheritable, they were personal, and could not be assigned.
Summary of this case from In re Estate of SiffermanOpinion
No. 40978.
September 12, 1949. Rehearing Denied, October 10, 1949.
The trial court properly determined that the fishing rights in a pond were in plaintiff, who held under a lease from the owner of the fee. Defendants claimed through reservations in two deeds from grantors now deceased. But such reservations created only personal rights which were not assignable or inheritable. And defendants had not acquired a fishing easement by adverse possession.
1. EASEMENTS: Personal Fishing Rights Reserved. Fishing rights reserved in two deeds to a railroad company were personal rights which were neither assignable nor inheritable.
2. EASEMENTS: Fishing Rights: No Appurtenant Easement Created. Reservation of personal fishing rights did not create easements appurtenant to the land.
3. EASEMENTS: Adverse Possession: Fishing Rights: Title by Adverse Possession Not Acquired. There was no continuous hostile exercise of the fishing rights on a pond until shortly before the action was filed, so no easement was acquired by adverse possession.
Appeal from St. Charles Circuit Court; Hon. Theodore Bruere, Judge.
AFFIRMED.
Niedner Niedner and Robert V. Niedner for appellants.
(1) The express reservation of fishing rights in a deed to land upon which a pond is intended to be built, creates a new right, potentially in existence, which is assignable and inheritable. Snoddy v. Bolen, 122 Mo. 479; Stout v. French, 69 S.W.2d 677; Kernkamp v. Wellsville Fire Brick Co., 170 S.W.2d 692; 17 Am. Jur., sec. 6; 36 C.J.S., pp. 828-835; 49 C.J., p. 1238; Denning v. Graham, 59 S.W.2d 699. (2) The conveyance of part of a tract of land for a pond, reserving the right to use the pond for fishing, creates an easement appurtenant to the land remaining in favor of the grantor, his heirs, devisees and assigns. Coughlin v. Barker, 46 Mo. App. 54; Skinner v. Shepard, 130 Mass. 180; Whitelaw v. Rodney, 212 Mo. 540; Bernero v. Real Est. Co., 134 Mo. App. 290; Dulce Realty Co. v. Staed Realty Co., 151 S.W. l.c. 419; Downey v. Sklebar, 261 S.W. 697; Engelhart v. Gravens, 281 S.W. 715; 36 C.J.S., pp. 828-829. (3) Fishing rights may be acquired by ten years continuous, actual, hostile, visible and notorious use under claim of right. 36 C.J.S., p. 835; 22 Am. Jur., secs. 23, 24; Millspaugh v. Northern Indiana Pub. Serv. Co., 104 Ind. 396; Granitoid Co. v. Cement Co., 169 Mo. App. 295; Seested v. Applegate, 26 S.W.2d 796.
B.H. Dyer for respondent.
(1) If the losing party in an action does not file a motion for a new trial or rehearing and thereby give the trial court an opportunity to correct its own error, if error there be, he cannot ask an appellate court to do so. Sec. 140a, New Civil Code, Laws 1943, p. 395; Berry v. Rood, 209 Mo. 662; Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977; Olson v. Olson, 184 S.W.2d 768. (2) The purpose of a motion for a new trial is to call the trial court's attention to alleged erroneous rulings upon which the movant relies, and thus give the trial court an opportunity to correct its own errors. Banner Iron Works v. Rosemond Co., 107 S.W.2d 1068. (3) Apart from question of jurisdiction of the trial court over the subject matter and as to sufficiency of pleadings to state a claim, etc., "no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court." Sec. 140a, New Civil Code, Laws 1943, p. 395. (4) A reservation, in the law of conveyancing, is an estate or interest in land created as a separate right by a deed conveying the land out of which the new right issues, and the new right, that is, the reservation, must come into existence at the moment of the conveyance. Lemon v. Lemon, 273 Mo. 484. (5) A reservation is the subject of grant, and, if created, must be created by a deed of conveyance from the one who would claim the reservation. There is no such thing as conveying a reservation to a person not a party to the conveyance. Lemon v. Lemon, 273 Mo. 484; Logan's Adm'r. v. Caldwell, 23 Mo. 372; Sec. 3401, R.S. 1939. (6) The deed by R.C. Matson to the Railroad Company, even if it could be construed as a reservation of an estate in his own favor, could not by way of reservation have granted to C.F. Knepel an estate in the Matson land. Knepel was not a party to that deed. Sec. 3401, R.S. 1939. (7) The deed by C.F. Knepel to the Railroad Company, even if it could be construed as a reservation of an estate in his own favor, could not by way of reservation have granted to R.C. Matson an estate in the Knepel land. Matson was not a party to that deed. Sec. 3401, R.S. 1939. (8) There is no such thing as a grant to some third person by way of a reservation in a deed of conveyance. A reservation in a deed must not only be of something which would otherwise, by operation of the terms of the deed, be conveyed, but it must necessarily be of something which belongs to the grantor at and before the execution of the deed. Property cannot be conveyed by reservation. Barabaria Canning Co. v. Ott, 37 So. 121, 84 Miss. 737; Craig v. Wells, 11 N.Y. 315; Stadler v. Missouri River Power Co., 139 F. 305, 71 C.C.A. 435; White v. City of Marion, 139 Iowa 479. (9) The rule is commonly stated to be that the grantor conveys by his deed, as an appurtenance, whatever he has the power to grant which is practically annexed to the granted premises, at the time of the grant and is necessary to their enjoyment in the condition of the estate at that time. Peters v. Worth, 164 Mo. 431. (10) An appurtenance to land is a servitude imposed upon another land. It is a use founded upon necessity and not a convenience. Schneider v. Realty Co., 193 S.W.2d 69. (11) In order that a possession may be adverse, so as to ripen into a title by adverse possession, each of the following elements must be present: The possession must be hostile, that is, under claim of right. It must be actual. Must be open and notorious. Must be exclusive, and must be continuous. The burden of proof as to each of these elements, separately, is upon the person asserting title by adverse possession, that is, must bear the burden to prove that each of said elements existed for ten years. Lumber Co. v. Craig, 248 Mo. l.c. 330; Burnside v. Doolittle, 324 Mo. 722, 24 S.W.2d 1011; Swope v. Ward, 185 Mo. 316; Hunnewell v. Burchett, 152 Mo. 611; Riebold v. Smith, 150 S.W.2d 599.
This case comes to the writer on reassignment. It is an action at law for the purpose of ascertaining and determining the title and interest of respondent and appellants in and to certain real estate described in respondent's petition. Appellants' answer and counterclaim also asks the court to determine the title and interest of the respective parties to this tract of land. Both respondent and appellants ask for injunctive relief to prohibit trespass upon this tract of land. Appellants claim to be the owners of the fishing and boating rights in the reservoir situated on this tract of land, while respondent claims to have the fishing and boating rights by virtue of a lease for twenty years from the owner of the fee. The trial court found that the respondent had the exclusive rights to the fishing and boating on this reservoir and also enjoined appellants from trespassing on this tract of land.
C.F. Knepel and R.C. Matson owned adjoining tracts of land in St. Charles County, Missouri, and on September 15, 1905, Knepel conveyed 2.6 acres to the Missouri, Kansas and Texas Railroad Company. On the same date Matson conveyed 17.5 adjoining acres to the same railroad. The railroad purchased these two tracts of land for the purpose of constructing a water reservoir. The Knepel warranty deed contained a clause which is as follows: "It is further understood that C.F. Knepel and R.C. Matson shall have the exclusive boating and fishing privileges on any reservoir which the said Railway Company may construct on the land covered by this deed with equal rights to each." The Matson warranty deed contained an identical clause but omitted the word "further."
The Matson farm, except for the 17.5 acres conveyed to the railroad, is now owned by respondent. The Knepel farm, except for the 2.6 acres conveyed to the railroad, is now owned by the heirs of Louise Diederich, including these appellants. In September, 1915, Matson and Knepel, by separate instruments, leased the boating and fishing rights in the reservoir to George P. Wunsch for a term of two years with the privilege of renewal for a term of two years. On June 30, 1920, Knepel sold and assigned his boating and fishing rights to Thomas W. Watson and wife. The Watsons sold and assigned them to Louise Diederich on December 23, 1938, and she assigned these rights to persons who are now her heirs, including these appellants.
The respondent acquired the "Matson farm" in 1932 and on October 15, 1933, the railroad leased the entire reservoir to the respondent for twenty years, with an option of renewal for another twenty years.
The appellants first contend that "the express reservation of fishing rights in a deed to land upon which a pond is intended to be built, creates a new right, potentially in existence, which is assignable and inheritable." We agree with the appellants that the clause of the deed quoted above gave Knepel and Matson the exclusive privilege to boat and fish when the railroad constructed the reservoir, but we do not agree that these privileges were either assignable or inheritable. There is no language in the clause that directly or indirectly infers that the fishing and boating privileges are assignable or inheritable. In other words, the words "heirs" or "assigns" are not used and there is no language that would suggest such. Moreover, Knepel could not reserve any rights that ran with the land in his deed to Matson because Matson was not named as a [404] grantee. For the same reason, neither could Matson reserve any rights other than personal rights to Knepel because the railroad company was the only named grantee. Lemon v. Lemon, 273 Mo. 484, 201 S.W. 103. We think the language used in this clause clearly shows that the parties to these two deeds only intended to give an exclusive personal right to fish and boat on this reservoir. Both grantors in the deed in question had been dead many years before the trial of this cause.
The second defense of appellants is that "the conveyance of part of a tract of land for a pond, reserving the right to use the pond for fishing, creates an easement appurtenant to the land remaining in favor of the grantor, his heirs, devisees and assigns." We have already held that Knepel and Matson had acquired only the exclusive personal privilege to boat and fish on the land in question and which did not inure to their heirs and assigns; therefore, these personal agreements could not run with the land in favor of the remaining parcels of land.
Appellants' last contention is that "fishing rights may be acquired by ten years continuous, actual, hostile, visible and notorious use under claim of right." We do not dispute this proposition of law but the evidence fails to come within this rule. The trial court found that the fishing and boating done on this reservoir by the appellants were at most occasional trespasses, also, that the evidence failed to show that appellants took exclusive possession of the fishing place in defiance of respondent. We think this finding was supported by the evidence. The respondent testified that he had given permission to appellants to fish and that appellants' use of this fishing privilege was in accordance with that permission until appellants notified him in the summer of 1947 that they were claiming the right to fish without his consent. It is true that appellants' evidence was to the contrary but the trial court believed respondent and not appellants. We cannot say that the judgment of the trial court was clearly erroneous when we give due regard to the opportunity of that court to judge the credibility of the witnesses. Section 847.114 of the Civil Code of Procedure.
If possession was permissive at its inception, then it remained so until the hostile claim was brought home to the true owner. "One will not acquire title by adverse possession who merely takes possession upon the theory that after he has held possession for the requisite statutory period his possession will ripen into title, but on the contrary his possession must at all times be under claim of ownership or title before it may develop into a perfect and completed title at the termination of the limitation period." Riebold v. Smith, 150 S.W.2d 599, l.c. 602.
It follows that the judgment of the trial court should be affirmed. It is so ordered. All concur.