Brick House Cafe & Pub, L.L.C. v. Callahan

83 S.W.3d 43, 2002 Mo. App. LEXIS 1439, 2002 WL 1393826
CourtMissouri Court of Appeals
DecidedJune 28, 2002
DocketNo. WD 59956
StatusPublished
Cited by3 cases

This text of 83 S.W.3d 43 (Brick House Cafe & Pub, L.L.C. v. Callahan) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brick House Cafe & Pub, L.L.C. v. Callahan, 83 S.W.3d 43, 2002 Mo. App. LEXIS 1439, 2002 WL 1393826 (Mo. Ct. App. 2002).

Opinion

VICTOR C. HOWARD, Presiding Judge.

Respondents filed suit against Appellant, who owned the property abutting Respondents’ property in Smithville, Missouri, seeking to prevent his erection of a fence along the property line which divided an alleyway between their two properties. The Circuit Court of Clay County, Judge James E. Welsh, entered judgment granting Respondents an injunction enjoining Appellant from erecting any type of barrier or obstacle that would block Respondents’ and others’ use of the alleyway. Appellant appealed, alleging that the trial court erred on several grounds in granting an injunction. We remand.

Facts

The Smithville, Missouri, properties in question were originally owned as a whole, as early as 1922, by Collins and Elizabeth Kindred, as husband and wife. The Kin-dreds operated a car dealership, which consisted of several different buildings, on the property with an alleyway running between the buildings. At some point in time, Mr. and Mrs. Kindred divided the property into various lots and transferred them to their children,1 who leased some of [45]*45the buildings for various commercial purposes other than the family car dealership.

Appellant purchased his property in April of 1994. Respondents purchased their property on December 13,1995. Appellant operates a body repair shop on his property, which we will refer to as the “Callahan property.” The building housing his repair shop was built by the Kin-dreds in 1949. The back of his building faces the back of the building on Respondents’ property, where Respondents operate a restaurant and drinking establishment called Brick House Café & Pub. (We refer to Respondents’ property as the “Brick House property.”) Between their buildings is an approximately forty-six-foot-wide gravel alleyway. The property line dividing Respondents’ Brick House property and Appellant’s Callahan property falls about in the middle of this alleyway, which had been frequently used by various people, without incident, including the prior owners of the property, their tenants, delivery vehicles, and trash trucks, prior to the dispute which led to this appeal.

Sometime late in the year 1999, or in early 2000, more than five years after he purchased the property, Appellant informed Respondents of his intention to build a permanent fence along the property line separating the Brick House Property from the Callahan Property. Respondents, asserting that such action by Appellant would effectively cause their restaurant business to close because of their reliance upon the use óf the alleyway, filed suit seeking to stop Appellant from erecting the fence. A preliminary injunction was issued. After a trial to the court, the circuit court issued an injunction against Appellant enjoining the erection of a fence or any other type of obstacle to prevent Respondents’ use of the alleyway. This appeal follows.

Discussion

This court is unable to definitively rule on the issues due to ambiguities and seeming inconsistencies in the trial court’s judgment. See Main St Feeds, Inc. v. Hall, 975 S.W.2d 227, 234 (Mo.App. S.D.1998) (reversing and remanding a judgment for further review due to the trial court’s inconsistent and ambiguous findings and its failure “to identify with any particularity its basis for the part of the judgment that declared the respective parties have easements over the property of the other”).

First, we note that in granting Respondents’ motion for permanent injunction “in part,” the trial court “preliminarily enjoined [Appellant] from erecting or causing to be erected any fence, barrier or other obstacle to prevent [Respondents, Respondents’] trash service collectors, and [Respondents’ vendors] from travelling through and temporarily parking in the land between the back of [Respondents’] buildings and [Appellant’s] buildings.... ” (Emphasis added.) Although not raised [46]*46by either party, there are concerns as to whether thfe “preliminary” enjoinment causes the judgment to lack finality as required for review under Rule 74.01.2 Likewise, included in the trial court’s many findings are findings such as “[Respondents] are likely to prevail on the merits of their case against [Appellant] based on the evidence adduced at trial,” and “[i]f others, such as [Appellant] are harmed by the imposition óf a preliminary injunction.... ” The judgment also mentions the lack of a survey despite the fact that a survey was admitted at the final hearing and is included in the record on appeal. However, it appears such wording may have resulted from clerical error in drafting the final judgment through use of the preliminary injunction issued in the case, and because we are remanding the case, we are certain that such clerical errors will be corrected.

Second, it is not clear to us on what basis the court issued an injunction, so we are unable to review whether the injunction is proper. A narrow reading of Respondents’ petition suggests that they sought to establish either a necessary or prescriptive easement across Appellant’s property. However, a broader reading of the petition, in light of the facts presented and the somewhat ambiguous and inconsistent findings of the trial court, suggests that the trial court may have intended to find either a prescriptive easement, and implied easement, or an easement of necessity.

For example, Missouri courts dictate that “[t]o establish a prescriptive easement, it is necessary to show use that has been continuous, uninterrupted, visible and adverse for a period of ten years.” Whittom v. Alexander-Richardson P’ship, 851 S.W.2d 504, 508 (Mo. banc 1993). Here, Respondents only owned the property for five years as of the filing of the petition, so they were required to tack their use to that of the previous owners. See Homan v. Hutchison, 817 S.W.2d 944, 947 (Mo.App. W.D.1991) (explaining that “[t]he ten-year period of prescription can be created by the tacking together of successive owners’ periods of continuous, uninterrupted, adverse use, each of which may be less than ten years but with their total amounting to ten years or more”). The trial court’s finding that “when tacking all ownership interests of the Brick House Property and the Callahan Property respectively, ... the ownership of the [properties] was different ... for more than ten years immediately preceding the filing of [Respondents’] petition” suggests that the trial court sought to establish a finding of a prescriptive easement.

At the same time, however, the trial court’s findings, which were not necessary to a finding of a prescriptive easement, suggest that the injunction could be based upon the finding of an implied easement or an easement of necessity. For example, the trial court made the following findings: “the alleyway has been used by any interested, third party traveler for ingress and egress since the late 1920’s without the permission of the [properties’] owners”; “[t]here is no other place on the Brick House Property to store [Respondents’] trash and grease dumpsters except for in the alleyway just behind the Brick House building”; “[i]f such a fence was built, [Respondents] would suffer irreparable harm because [Respondents] would no longer be able to obtain trash and grease removal, or obtain deliveries from various vendors.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brick House Café & Pub, LLC v. Callahan
151 S.W.3d 838 (Missouri Court of Appeals, 2004)
Baldwin v. Baldwin
109 S.W.3d 247 (Missouri Court of Appeals, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
83 S.W.3d 43, 2002 Mo. App. LEXIS 1439, 2002 WL 1393826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brick-house-cafe-pub-llc-v-callahan-moctapp-2002.