Beetschen v. Shell Pipe Line Corp.
| Decision Date | 19 February 1952 |
| Docket Number | No. 28283,28283 |
| Parties | BEETSCHEN et al. v. SHELL PIPE LINE CORP. |
| Court | Missouri Court of Appeals |
Charles M. Spence, Harold I. Elbert, St. Louis, Thompson, Mitchell, Thompson & Douglas, St. Louis, of counsel, for appellant.
Henry C. Stoll, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for respondents.
HOUSER, Commissioner.
This is an action against Shell Pipe Line Corporation for damages claimed to have been sustained by the owners of a lot in the City of St. Ann, St. Louis County, occasioned by the building and maintenance of a fence. A circuit court jury awarded plaintiffs $157.50 actual and $2,750 punitive damages. The pipe line corporation has appealed to this court, contending that plaintiffs and the court below misconceived the nature of this action as well as the proper amount of damages.
Plaintiffs' petition originally sought damages for the permanent appropriation of the right to fence. Approximately one month before going to trial plaintiffs amended their petition, alleging the erection of the fence 'in violation of plaintiffs' property rights, depriving plaintiffs of the use of the rear ten feet portion of the lot', depreciation of and damage to plaintiffs' property and the use and enjoyment thereof by reason of the trespass, disturbance of the peaceable and quiet use and enjoyment of the property and that the actions of the defendant were 'wilful, malicious, unlawful and in reckless disregard of plaintiffs' rights', praying for actual and punitive damages. By its answer the pipe line corporation admitted the erection and the continued maintenance of the fence and conceded that in a condemnation proceedings in federal court in 1928 it had given up the right to fence said easement, but claimed that the fence was permanent and that the plaintiffs must recover all of their damages in one action.
These are the salient facts: In a condemnation suit filed in federal court in 1928 defendant acquired a right of way 20 feet wide for a crude oil pipe line over what was then open farm land in St. Louis County but which recently has been sold off in lots and developed into a populous area. In the federal court proceeding the original petition was drawn in such manner that the company would have acquired not only subsurface rights but surface rights as well, including the right to fence. By way of amended petition, however, the condemnor reserved to the property owners the right to use and cultivate the surface of the strip, and expressly waived any right to fence the right of way, thereby obtaining only the subsurface right to install and maintain an underground pipe line and the right to re-enter the land solely for the purpose of maintenance and repair.
In 1948 the company determined that it was necessary to fence a portion of its right of way in the City of St. Ann for several hundred feet, including that part which constitutes the rear 10 feet of plaintiffs' lot. Counsel for the pipe line corporation investigated, saw the original (but not the amended) petition in the 1928 condemnation proceedings, and rendered an opinion that the company had the right to fence its easement. In the first part of December, 1949 without any prior notice to the property owners the fence was constructed at the boundary line of the easement, across the plaintiffs' lot, upon a line 10 feet north of the south boundary line of plaintiffs' property. The fence is of heavy steel wire 6 feet in height with a 12 inch angle arm designed for three strands of barbed wire. The posts are set in concrete. It is conceded by the pipe line corporation that no condemnation proceedings were instituted in 1948 to procure any further surface rights or the right to fence, and that plaintiffs have not granted the defendant any such rights.
On this appeal the pipe line corporation says that plaintiffs have only one action for the appropriation of the right; that plaintiffs must recover all their damages in the one action; that they cannot split their cause of action and recover in successive actions on the theory of a continuing injury; that respondents originally sued for a permanent appropriation of the right to fence, acquiesced in the taking, waived their right to have compensation assessed in advance, and at the last minute amended their petition to count on a theory of temporary trespass; that the measure of damages is the difference between the reasonable market value of the property before and after the appropriation of the right to fence (i. e. actual and not punitive damages); that this is a 'reverse condemnation suit', i. e. a taking or appropriation of the right to fence by a corporation possessing the power of eminent domain; that in acquiring the right by trespass it damaged plaintiffs no more than if it had condemned the right in proper proceedings in circuit court; that plaintiffs have been deprived of nothing except the right to have compensation paid before the seizure of the right; that the same measure of damages applies here that applies in condemnation proceedings; that R.S.Mo.1949, Sec. 523.090, limits the damages to actual damages and excludes any element of punitive damages; and that there is no showing of any intentional doing of a wrongful act without just cause or excuse.
Contra, plaintiffs claim that they have pleaded and proved a temporary, abatable, continuing trespass in which they may recover both actual and punitive damages, and that they may maintain successive actions so long as the fence remains on the property; that diminution in the rental value of the premises represents the actual damages recoverable and that punitive damages may be awarded because there is legal malice coupled with wilful, admittedly wrongful trespass.
Granting that appellant could have obtained the surface rights, including the right to fence, in the original condemnation proceedings in 1928, or by the institution of condemnation proceedings in 1949, the fact remains that it did not do so, but on the contrary committed an act which it now acknowledges to have been a trespass. While conceding that it is a 'technical' trespasser, appellant claims that it cannot be held to the same rule that governs trespassers generally. We rule, however, under the facts disclosed here, that a private corporation, invested by law with a portion of the sovereignty of the state in its grant of the power to exercise the right of eminent domain, is not thereby clothed with an immunity not possessed by others who trespass upon the property or rights of private citizens, and must answer for its trespasses in the same manner as any other trespasser. The statute, R.S.Mo.1949, Chapter 523, Sec. 523.010 et seq., gives the corporation the right to acquire rights in the property of private citizens by instituting condemnation proceedings according to a prescribed formula. Under the Constitution of 1945, Art. I, Section 26, private property cannot be disturbed nor can the proprietary rights of the owner therein be divested until the damages are ascertained and paid to the owner or paid into court for the owner. A corporation which ignores the statute and the Constitution and makes an entry upon the land of a private citizen without agreement with the owner or without having the damages appraised by commissioners is guilty of a wilful trespass. Cox v. St. Louis, M. & S. E. R. Co., 111 Mo.App. 394, loc. cit. 408, 85 S.W. 989.
In such case the aggrieved property owner has an election of remedies. He may proceed by way of injunction to restrain the installation, MacMurray-Judge Architectural Iron Co. v. City of St. Louis, 138 Mo. 608, 39 S.W. 467; Carpenter v. City of St. Joseph, 263 Mo. 705, 174 S.W. 53; or he may sue in ejectment, Tooker v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 101 A.L.R. 365; or he may avail himself of R.S.Mo.1949 Sec. 523.090; or he may maintain a common law action for damages. 30 C.J.S., Eminent Domain, Sec. 394, page 105.
If he sues for damages, he may in a proper case proceed upon the theory of trespass and sue for actual damages, 30 C.J.S., Eminent Domain, Sec. 400, page 118, and when the facts warrant it recover punitive damages, or he may waive the tort and sue for the compensatory damages to which he would have been entitled if condemnation proceedings had been instituted prior to the entry. Doyle v. Kansas City & S. R. Co., 113 Mo. 280, 20 S.W. 970; Webster v. Kansas City & S. R. Co., 116 Mo. 114, 22 S.W. 474, loc. cit. 475.
If he sues for the just compensation preserved to him by the Constitution for the taking of private property for public use, his theory is that of acquiescence in the taking, consent to the appropriation, and in that event he has but one action, in which he must recover all damages, past, present and prospective. Upon the payment of the judgment in such case the same right in the land is conferred upon the corporation as if it had condemned the land formally. Doyle v. Kansas City & S. R. Co., supra.
In support of its contention that this is a 'reverse condemnation' suit and that plaintiffs have waived the tort and sue only to enforce their constitutional right to just compensation, appellant cites the following cases: McReynolds v. Kansas City, C. & S. R. Co., 110 Mo. 484, 19 S.W. 824; Cochran v. Missouri, K. & T. R. Co., 94 Mo.App. 469, 68 S.W. 367; Webster v. Kansas City & S. R. Co., supra; and Miller v. St. Louis & K. C. R. Co., 162 Mo. 424, 63 S.W. 85. These cases, however, are not controlling here for the reason that in all of them the defendant corporation entered the land and made a permanent appropriation, and the landowner sued for the value of the right of way or other interest taken on the theory that he had been permanently deprived thereof. In none of the cases cited did plaintiff sue on the theory of temporary trespass for actual and punitive damages. True enough, when the structure is permanent in its...
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