BAUER v. CRAIG

BAUER v. CRAIG
1956 OK 100
297 P.2d 382
Case Number: 37077
Decided: 03/20/1956
Supreme Court of Oklahoma

GEORGE F. BAUER, JR., AND MARLAN BAUER, HUSBAND AND WIFE, PLAINTIFFS IN ERROR,
v.
CLAUDE HARDIN CRAIG, ETHEL L. CRAIG, AND CLAUDE H. CRAIG, JR., DEFENDANTS IN ERROR.

Syllabus by the Court.

¶0 1. Where, by a duly recorded easement agreement, an owner of an apartment property and two adjoining lots, subjected the lots to an open, obvious, permanent and continuous servitude or driveway easement to be used in common by himself and subsequent owners of the two lots he was retaining, and the owners of the apartment property he was selling and their assigns, subsequent purchasers of the respective properties took them subject to the burdens and/or benefits of said easement, without mention of it in their deeds, and were estopped to deny the validity of said easement agreement.
2. Where plaintiffs' right to an injunction depended on the enforcement of an easement agreement, and, before trial, defendants filed a motion for judgment on the pleadings upon which decision was reserved, and, by agreement of counsel, evidence was introduced by both adversaries and the case was submitted for judgment upon consideration of the record and briefs, and, after taking the case under advisement the court entered judgment for plaintiffs, under the circumstances shown by the record, said judgment was not entered prematurely.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Proceedings by the owners of one apartment property, as plaintiffs, against the defendant owners of another apartment property and a lot between the two, for an injunction to prevent said defendants from constructing a swimming pool on said lot. From a judgment of injunction for plaintiffs, defendants appeal. Affirmed.

Milton W. Hardy, of Hardy & Hardy, Tulsa, for plaintiffs in error.

Covington & Donovan, and Gable, Gotwals & Hays, Tulsa, for defendants in error.

BLACKBIRD, Justice.

¶1 Plaintiffs in error own the Ritz Apartment building, which fronts on 15th Street, at said street's intersection with Birmingham Street, in Tulsa, Oklahoma, together with Lot 13 on which it stands, and Lot 14 adjoining said property on the east, all in Block 7 of the City View Hill Addition to said City. Defendants in error own, and/or have a homestead interest in, the Birmingham Apartment building, which also fronts on 15th Street, but stands on Lot 15, a so-called "inside" lot directly across, and adjoining, Lot 14 east of said Ritz building. There are garages behind each of these apartment buildings for use by their respective tenants. The only means provided for automobiles to enter or leave these garages is via a hard-surfaced driveway which extends from Birmingham Street across the rear of all three of the lots (13, 14 and 15) behind the two apartment buildings and in front of their respective garages. The right of way for this driveway was provided for in a written easement agreement, termed "Right Of Way Grant" which one, E.M. Brown, who (for the purposes of this controversy) may be treated as the original owner of the Birmingham property, entered into with one Ray H. Welden, on September 26, 1930, when he sold Welden said property. Among the provisions of said instrument, which referred to Brown as "grantor" and Welden as "grantee", was one comprising the 9th paragraph thereof, in which Brown purported to agree, on behalf of himself, his heirs, personal representatives and assigns, that so long as the building then situated on Lot 15 was used as an apartment house "he" would not erect any structures "of any kind or nature" on the front 85.15 feet of the vacant Lot 14 "without the written consent of the said grantee, or the then owners" of Lot 15.

¶2 When plaintiffs in error commenced uprooting trees on Lot 14 for the announced purpose of building a swimming pool thereon, defendants in error instituted the present action to enjoin them as defendants from starting such construction. The trial court granted them the injunction on the basis of the above-quoted provision of the Brown-Welden "Right Of Way Grant"; and defendants' present appeal from said injunctive judgment challenges the efficacy of said easement agreement. Our continued reference to the parties will be by their trial court designations.

¶3 Previous to making said agreement, Brown had, in January, 1929, entered into a written contract to purchase Lots 13 and 14 (both then vacant) from the then owners, a Mr. Gordon and the joint executors of the Guy M. Davis estate, and had made a down payment on their purchase price and had taken possession of them under said contract, but by its express terms, title to the lots remained in the sellers until Brown completed paying for the lots, at which time he would receive the deed the sellers executed and placed in escrow for him.

¶4 In the Brown-Welden "Right Of Way Grant", it was specifically recognized that Brown was merely purchasing the lots and in the 5th paragraph thereof, it was "covenanted on behalf of the grantor * * * (Brown)" that "upon receiving a deed" to them "this right of way grant may be filed for record and it is understood that it shall attach to said property." After provision in the 6th paragraph thereof for the right of way to be used by "the grantee" (Welden) and his assigns for ingress and egress from and to the Birmingham Apartments' garages, the 7th paragraph thereof provided that it was to be used "in common" by the grantor, his heirs, assigns, tenants, etc., and the grantee, his heirs, etc. The 8th paragraph further gave the grantee, his heirs and assigns, the right and privilege to erect in the northeast 50 feet of Lot 14 a garage or garages for occupants and tenants of the Birmingham Apartment building. In its 10th paragraph, the agreement provided that "the grantee" was to pay one-half the "up-keep" of said Lot 14, and its 12th paragraph contained provisions with reference to the owners of the respective properties participating equally in the payment of the taxes on said lot.

¶5 In 1931, before Brown had completed paying for the lots, or had received the deed thereto from the escrow holder, a Tulsa bank, he commenced construction on Lot 13 of the aforesaid Ritz Apartments. Before completion of said construction, he apparently exhausted his funds and became bankrupt, with many bills and lien claims outstanding against said new apartment building and E.M. Brown purported to convey it by quit claim deed to one R.L. Brown. Lien foreclosure proceedings then followed and a Mr. Ingraham was appointed therein as receiver for the property. Said receiver finally finished paying for the lots, under E.M. Brown's contract to purchase them, and thereupon received his deed from the escrow holder. At the foreclosure sale had in said proceedings, United Brick & Tile Company purchased the Ritz Apartment property, including Lot 14. Several years thereafter, through various mesne conveyances unnecessary to describe, a Mr. and Mrs. Brookman became the owners of said property, and, by deed dated July 27, 1954, conveyed it to plaintiffs in error, who have since remained its owners. In the meantime, through various mesne conveyances and court proceedings unnecessary to describe, a Mr. and Mrs. Meadows became the owners of the Birmingham Apartment property, and, by deed executed and delivered April 23, 1947, conveyed it to defendants in error. In both of said deeds, by which the litigants herein took title to said respective apartment properties, reference was made to an existing easement over Lots 13 and 14. The Brookman deed to plaintiffs in error merely contained a generally worded exception in its warranty clause to "Easements Of Record"; but the Meadows' deed to defendants in error made specific reference to the original easement grant as follows:
"Grantors also set forth that they are the owners of all rights acquired by the grantee in the Right Of Way Agreement dated September 26, 1930, and recorded in Book 940,Page 50 of the Records of the County Clerk of Tulsa County, Oklahoma, which rights are now in good standing and which rights are hereby set over, transferred, and sold to the grantee herein." After going into possession of the Ritz Apartment property, plaintiffs in error began to modernize and improve it, and, in the course thereof, apparently conceived their idea of building a swimming pool on the aforesaid "restricted" front 85.15 feet of Lot 14. Accordingly, they, through their attorney, wrote plaintiffs a letter in which they referred to the hereinbefore described right of way agreement and proposed that the construction of said swimming pool be undertaken on a share-the-expense basis for the joint use of the tenants in both apartment buildings. Plaintiffs rejected this proposal, and it was then that defendants proceeded to undertake it by themselves; and were thereafter prevented from doing so as aforesaid, by the injunctive judgment they herein appeal from.

¶6 In the arguments defendants advance for reversal under their Propositions Of Law, Nos. 1 to 6, inclusive, they attempt to show that the Brown-Welden "Right Of Way Grant" could not have been valid or effective, either to create an easement and covenants running with the title to the Ritz Apartment property, or as an easement agreement purely personal to Brown and Welden; and, that if it was binding upon Brown and Welden, it was never accepted by subsequent owners of the respective properties and therefore could not bind them. In the first part of said argument, and more particularly under their Proposition No. 1, they say that Brown never obtained the type of ownership necessary, under

¶7 In and under their Proposition Of Law No. 8, defendants contend that the trial court erred in entering its judgment in favor of Claude Craig, Sr., (as it did in favor of the other plaintiffs) after the evidence revealed that he had, prior to the action, deeded his interest in the property to his wife, Ethel L. Craig. Counsel says the action should have been dismissed as to that Mr. Craig. This argument constitutes no ground for reversing the judgment. It is not denied that Claude Craig, Sr., had a homestead interest in the Birmingham Apartment property; and, after this appeared during the trial, defendants never, before judgment, moved that he be dismissed as a plaintiff in the action. The question of whether he should have been dismissed is therefore not before us. See In re Cully's Estate, Okl., 276 P.2d 250, 255.

¶8 Lastly, defendants contend, under their Proposition Of Law No. 7, that the trial court entered the judgment appealed from, prematurely. The record reveals that, at the time the judgment was entered, the trial court had reserved decision upon, and taken under advisement, a motion filed by defendants, for judgment on the pleadings. It is obvious from the record that counsel for both plaintiffs and defendants agreed to, or at least acquiesced in, submission of the cause to the court for its decision and/or judgment as to whether or not the Brown-Welden "Right Of Way Grant" was to be enforced. Their recognition that if this question was determined in the affirmative, plaintiffs would be entitled to the injunction, without further proceedings, appears unmistakable from several colloquies between them and the trial judge during the course of the trial. In these circumstances, the trial court's judgment cannot be said to have been entered prematurely and we hold that it was not. See City of Wewoka v. Dunn, 201 Okl. 286, 205 P.2d 291; Whipps v. Kling Bros. & Co., 182 Okl. 382, 78 P.2d 291.

¶9 As we have found none of the arguments urged for that purpose, sufficient cause for reversing the trial court's judgment, the same is hereby affirmed.

¶10 JOHNSON, C.J., WILLIAMS, V.C.J., and WELCH, CORN, DAVISON, JACKSON and HUNT, JJ., concur.