Opinion
No. 42677.
May 12, 1952. Rehearing Denied June 9, 1952.
APPEAL FROM THE CIRCUIT COURT, PEMISCOT COUNTY, R. B. OLIVER III, SPECIAL JUDGE.
Von Mayes, Fred L. Henley, Caruthersville, for appellants.
Ward Reeves, Caruthersville, for respondents.
This is an action to try, ascertain and determine title to a described small parcel of land in the City of Caruthersville, and to enjoin defendants from interfering with plaintiffs' use of the land and from instituting proceedings of condemnation. The defendant, City of Caruthersville (hereinafter referred to as "defendant"), by its amended answer and counterclaim stated that defendant and the public have acquired an easement in the land as a part of a passageway, which, by common-law dedication and prescription, has become a public alley. Defendant prayed the court to adjudge that defendant has an easement to the use of the public; that plaintiffs be required to remove all obstructions placed by them on the tract and to deliver unto the defendant the possession of the land; and that plaintiffs be forever restrained and enjoined from obstructing or in any way interfering with the free use of the alley by the public.
The trial court found for defendant, and entered judgment determining that, although plaintiffs are the owners in fee of the described tract, their title is subject to the right of defendant City and the public to an easement and that the easement had been acquired by common-law dedication, and prescription. The court ordered and directed plaintiffs to remove all obstructions they had placed on the tract, and to deliver unto defendant City the complete possession. The court further decreed that plaintiffs be forever restrained from obstructing or in any way interfering with the use of the land by the public. Plaintiffs have appealed.
This case has been before this court before. See Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471. Upon the former appeal this court treated with the compulsory counterclaim provision of the Civil Code of Missouri, section 509.420 RSMo 1949, V.A.M.S. This court held that the trial court had been actually right in dismissing and abating the instant action upon plaintiffs' claim of title. Plaintiffs' claim of title should have been asserted as a counterclaim in a possessory action, ejectment, then pending in the Court of Common Pleas of Cape Girardeau County. But because we thought the views expressed by this court upon the former appeal, relating to the application of § 509.420, supra, to possessory and title claims, might unjustly leave title claims in doubt, we held the effect of our decision should be prospective only.
Meanwhile the possessory action pending in the Court of Common Pleas of Cape Girardeau County, in which action the defendant herein, City of Caruthersville, was plaintiff, was tried and judgment went for plaintiff, defendant herein, February 11, 1949. Defendants in that case, plaintiffs herein, perfected their appeal to the St. Louis Court of Appeals and the judgment for plaintiff, defendant herein, was affirmed. City of Caruthersville v. Cantrell, Mo.App., 230 S.W.2d 160. However, after the mandate of this court upon the former appeal of the instant case was filed in the Circuit Court of Pemiscot County, the defendant, City of Caruthersville, filed its answer in the instant case, as we have stated supra, asserting its claim of an easement in the small tract of land, and, upon the trial of the instant case as stated, a judgment was rendered in favor of defendant City upon the issues. The St. Louis Court of Appeals in a subsequent appeal of City of Caruthersville v. Cantrell, 241 S.W.2d 790, correctly reversed the order of the Court of Common Pleas refusing to stay the execution of the judgment in the ejectment case affirmed by that court upon the former appeal. And now upon this review we examine the contentions of the parties upon issues of title evidencing ownership and right of possession as raised by and tried upon the pleadings in the instant case. We shall examine the questions whether all the rights of the parties to title, ownership and possession may now be made final and conclusive. Cantrell v. City of Caruthersville, supra.
The evidence introduced in the instant action was identical with that introduced in the trial of the possessory action, ejectment, in City of Caruthersville v. Cantrell, supra, 230 S.W.2d 160.
The transcript of the record is voluminous. Many witnesses testified concerning the use of a passageway, including the disputed tract, by the public. It would be of little service for us to restate the whole of the evidence which, as stated, was identical with the evidence introduced in the action of ejectment and which evidence was summarized by the St. Louis Court of Appeals in the case of City of Caruthersville v. Cantrell, supra, 230 S.W.2d at pages 165-166. It is sufficient for us to state the evidence of the location of the disputed tract, and of the circumstances of the construction of a "concrete block loading platform" which gave rise to the instant litigation.
The small parcel of land involved herein is forty-eight feet long and eight feet wide. It lies within the area of a passageway eighteen feet wide, which passageway passes northwardly one hundred forty feet from the north side of Fourth Street (in Caruthersville) through Block Nine and intersects the south side of a regularly platted public alley. The building on the land owned by plaintiffs fronts westwardly on Ward Avenue, the east side of which avenue is one hundred one feet west of the west side of the passageway. Buildings on either side delineate the passageway, save and except the rear end of plaintiffs' building does not extend eastwardly to the west side of the passageway. There is an irregularly-shaped recessed open area of about seven hundred square feet between the rear end of plaintiffs' building and the west side of the passageway. Some time about the year 1947, plaintiffs constructed a concrete block loading platform at the northeast corner of the recessed area. The concrete platform extends out into the passageway obstructing the way to the extent of eight feet eight inches.
In our opinion the weight of the evidence supports the trial court's apparent conclusions that the passageway had been adversely, openly, notoriously, continuously used without interruption and under claim of right as a public alley, and with the acquiescence of abutting proprietors, for a period of much more than ten years before plaintiffs had constructed the concrete platform mentioned supra. The continuous use of the alley by the public was in all material respects the same as that of other and regularly platted public alleys in the City. Several of plaintiffs' predecessors in title testified they had intended that the public should freely use the passageway, and had refrained from interfering with the user. But even aside from this testimony, the shown long acquiescence of plaintiffs' predecessors in the public's use of the passageway as an alley demonstrates the unequivocal intention of the owners of the fee to dedicate the use of the way to the public. There had been some use by plaintiffs and their predecessors in title of a portion of a passageway just east of the recessed area mentioned supra. Plaintiffs and their predecessors had received shipments of articles of merchandise, such as wire, stoves, cultivators, plows and other hardware and implements. This merchandise was put temporarily upon part of the area of the passageway from time to time, but the merchandise, having been assembled, was generally moved to the recessed area to the westward of the passageway, or moved inside the plaintiffs' building. From time to time City cleaned the passageway quite as it did other alleys of the City, and, until the construction of the concrete loading platform by plaintiffs in about the year 1947, there had been nothing of a permanent character to obstruct the public's use of the whole passageway other than one small outbuilding to the northward which was constructed by the proprietor of another abutting property — not under a claim of right or ownership of the site, but in recognition of the right of the City and the public to the public use of the way. Thus, on the theory of a common-law dedication, McGrath v. City of Nevada, 188 Mo. 102, 86 S.W. 236, and on the theory of prescriptive user, Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894, the evidence was sufficient to establish the claim of defendant City of the right and title to an easement.
These same views were entertained by the St. Louis Court of Appeals in reviewing the case of City of Caruthersville v. Cantrell, supra, although we must point out that the issue of title in that ejectment action was but an underlying issue supporting the possessory judgment affirmed by the Court of Appeals upon the review of that case. The underlying issue of title so considered by the St. Louis Court of Appeals in the possessory action is an ultimate issue in the instant case, an action in which the parties have asserted their claims of title and have sought their relief. Ballenger v. Windes, 338 Mo. 1039, 93 S.W.2d 882; Gibbany v. Walker, 342 Mo. 156, 113 S.W.2d 792; Cantrell v. City of Caruthersville, supra. While the judgment affirmed by the St. Louis Court of Appeals was not res judicata of the issues in the instant case, yet we regard the opinion of the St. Louis Court of Appeals as sound and of great value to us upon the merits of the instant appeal.
Contrary to the contention of plaintiffs-appellants, it is clear that the trial court in the instant case did not render judgment for defendant upon the theory that the judgment in the action of ejectment was res judicata of the issues of the instant case, although res judicata was pleaded. The trial court found the issues in favor of defendant upon the evidence introduced in the instant case relevant to common-law dedication and prescription, which evidence, as we have stated, supported the trial court's express findings of an easement by common-law dedication, and by prescriptive user.
The contentions of plaintiffs-appellants that the defendant City may not assert its claim of an easement in plaintiffs' action to try, ascertain and determine title; that the trial court went beyond its powers in ordering possession to defendant City, in mandatorily directing plaintiffs to remove the obstruction, and in enjoining plaintiffs from any future obstruction of the passageway, are without merit. The obstruction, the concrete platform, amounted to a public nuisance, a purpresture, the enjoining of which is within the jurisdiction of a court of equity. Bowzer v. State Highway Commission, Mo.Sup., 170 S.W.2d 399; State ex rel. Rucker v. Feitz, 174 Mo.App. 456, 160 S.W. 585. The plaintiffs instituted their action to try title and asked for equitable relief. The defendant asserted its claim of an easement and also sought equitable relief. Section 527.150 RSMo 1949, V.A.M.S., provides for actions for the adjudication of titles, estates and interests in and to real property; the statute contemplates a final determination of all rights, claims and interests affecting the property, and the court is empowered to award full and complete relief, whether legal or equitable, to the several parties. By virtue of § 509.420, supra, defendant City was obliged to state, by way of counterclaim, all claims against plaintiffs arising out of the transaction or occurrences, the subject matter of plaintiffs' claim, through the penalty of being precluded from the subsequent assertion of omitted claims. Cantrell v. City of Caruthersville, supra. The adjudication of title, the possessory order, the mandatory order of removal of the obstruction and the restraining order were all within the purview and the relief prayed for by the pleadings. There could be no error of the trial court in giving full, adequate and complete relief within and requested by the pleadings, the right to which relief being sustained by the evidence. Matthews v. Karnes, 320 Mo. 962, 9 S.W.2d 628; Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81; Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552; State ex rel. Rucker v. Feitz, supra.
The judgment should be affirmed.
It is so ordered.
LOZIER and COIL, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur.