Beetschen v. Shell Pipe Line Corp.
| Decision Date | 08 December 1952 |
| Docket Number | No. 2,No. 43153,43153,2 |
| Citation | 363 Mo. 751,253 S.W.2d 785 |
| Parties | BEETSCHEN et al. v. SHELL PIPE LINE CORPORATION |
| Court | Missouri Supreme Court |
Charles M. Spence and Harold I. Elbert, St. Louis, for appellant. Thompson, Mitchell, Thompson & Douglas, St. Louis, of counsel.
Henry C. Stoll, St. Louis, for respondents. Joseph Nessenfeld, St. Louis, of counsel.
BARRETT, Commissioner.
In this action for trespass the plaintiffs have been awarded $157.50 actual damages and $2750 punitive damages. The appeal has been transferred to this court by the St. Louis Court of Appeals, Beetschen v. Shell Pipe Line Corp., 248 S.W.2d 66, and even though we may approve of that court's opinion and decision it is now the duty of this court to consider and determine the appeal anew. Const.Mo. Art. 5, Sec. 10, V.A.M.S.; Sup.Ct.Rule 2.06; In re Adoption of Sypolt, 361 Mo. 958, 237 S.W.2d 193; In re Adoption of Duren, 355 Mo. 1222, 200 S.W.2d 343, 170 A.L.R. 391.
The plaintiffs, Kenneth and Alvera Beetschen, are the owners of a home on Lot 64 in St. Ann, a city in St. Louis County. The admitted trespass to the plaintiffs' lot came about in these circumstances: The appellant, Shell Pipe Line Corporation, has a subsurface easement for its crude oil pipe line across the south ten feet of the plaintiffs' lot. The easement for the pipe line was acquired in a condemnation proceeding in the United States District Court for the Eastern District of Missouri in 1928. In that proceeding, by amendment of its original petition, the Shell Pipe Line Corporation specifically stipulated that its pipe line would be laid at least two feet underneath the surface of the ground and would be so constructed and maintained as not to interfere with the cultivation or other use of the surface of the land, and 'that petitioner and its successors in interest may have no right to fence said strip of land.' And, in instructing the jury upon the measure of damages, the trial judge informed the jury that they should take into consideration the fact that the strip of land could not be fenced by the plaintiff or its successors. Despite its specific stipulation in the condemnation proceeding by which the easement was acquired and despite the fact, admitted in this proceeding, that it had no right to enclose the surface of the easement, the Shell Pipe Line Corporation, in 1949, constructed a six-foot steel and wire fence with gates, topped with three strands of barbed wire, enclosing the ten-foot strip on the plaintiffs' lot.
Even now the appellant does not claim that it had a right to construct the fence, and, while it seeks to palliate the fact, it does not attempt to justify its conduct in having done so. Its defense to the action and claim here is that the trial court erred in holding and instructing the jury upon the theory that this is an action for a temporary trespass. Its position is that it possessed the power or eminent domain and could have condemned the right to fence and having appropriated, without authority, that right, the taking or fencing is permanent and, therefore, there could be no liability for punitive damages and necessarily the landowner is bound to seek his entire recovery in one action for all the damages sustained. As a factual basis for its position the appellant claimed and proved that when the question of its right to fence arose in 1949 its representatives examined their files and did not find the amended petition in the original condemnation proceeding, and, relying upon the original petition and the decision of this court in its companion condemnation case of Shell Pipe Line Corporation v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917, in which it acquired the right to fence, the opinion was given that it also had the right to fence this easement. In these circumstances it is urged that the knowledge of its officers in 1928 that it had no right to fence could not be imputed to its officers and representatives in 1949, hence that it acted in good faith in constructing the fence and could not be guilty of conscious wrongdoing and, therefore, there was no basis for the submission of punitive damages.
The difficulty with this argument is that it ignores certain basic facts. In the first place the corporation as well as its employees necessarily had knowledge of the fact that the only interest the corporation could acquire in the ten-foot strip for the purpose of its pipe line right of way was an easement. Const.Mo. Art. 1, Sec. 26; Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 136 A.L.R. 286; St. L., K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192, 906, 26 L.R.A. 751. An easement is a nonpossessory interest in land (5 Restatement, Property, p. 2903) and does not include the right to fence, that right remains with the owner of the servient estate and he is not bound to permit the erection of fences. Sizer v. Quinlan, 82 Wis. 390, 52 N.W. 590, 16 L.R.A. 512; 22 Am.Jur., Sec. 3, p. 513; 28 C.J.S., Easements, Sec. 98(2)b, p. 783. The right to enclose an easement with a fence does not accrue by reason of the dominant owner's zeal or duty to protect the public, if that right is necessary or desired it must be acquired in an appropriate condemnation proceeding. Annotation 6 A.L.R.2d 205, 210; Aycock v. Houston Lighting & Power Co., Tex.Civ.App., 175 S.W.2d 710.
More important, however, is the basic fact of the condemnation proceeding itself in which the limited subsurface easement was acquired. On course, in instituting, amending and prosecuting its condemnation proceeding in 1928, the corporation necessarily acted through its representatives as it did again in 1949 when the corporation constructed the fence. In that proceeding it could have acquired an easement to the surface use of the ten-foot strip, including the right to fence, but instead it voluntarily elected to acquire a subsurface easement with express reservations to the landowner, annotation 7 A.L.R.2d 364; Shell Pipe Line Corp. v. Woolfolk, supra, and specifically stipulated that there was no right in the condemner or its successors to fence the easement. The purpose of its action in specifically amending the petition, no doubt, was to reduce the damages in the condemnation proceeding. But, regardless of the reason for its election and irrespective of the fact that it acted through different representatives or agents in 1928 and in 1949, the basic fact is that it is the corporate entity, the Shell Pipe Line Corporation, that has been invested with the right to exercise the power of eminent domain Section 523.010 RSMo 1949, V.A.M.S. By reason of that fact the condemnation proceeding was instituted, amended and prosecuted to a conclusion in the name of the Shell Pipe Line Corporation and the title, right or interest condemned and acquired by reason of that proceeding, the specifically limited subsurface easement, vested in the Shell Pipe Line Corporation. The proceedings in the condemnation suit constitute the corporate entity's record and muniments of title, and those proceedings show the title to be an easement, as well as its quantity and quality, vested in the Shell Pipe Line Corporation. State ex rel. Campbell v. Brinkop, 238 Mo. 298, 307, 143 S.W. 444; 6 A Fletcher, Cyclopedia Corporations, Sec. 2814, p. 295. Whatever its individual employees may have known or forgotten, either in 1928 or in 1949, the corporate entity of necessity had full knowledge then and now of its right, title and interest in the ten-foot strip, including the fact of no right to fence. Pentz v. Kuester, 41 Mo. 447. 'It requires no citation of authority to show that a man cannot question a title given by himself, or hold possession of the land in the face of his own deed.' Steele v. Culver, 158 Mo. 136, 138, 59 S.W. 67.
And so the corporation with full knowledge of its limited and restricted title trespassed and erected the fence. 10 Fletcher, Cyclopedia Corporation, Sec. 4893, p. 431;...
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