Betz v. Kansas City Home Telephone Co.

• Decision Date: 01 October 1906
• Parties: BETZ v. KANSAS CITY HOME TELEPHONE CO.
• Court: Missouri Court of Appeals

97 S.W. 207

121 Mo. App. 473

BETZ v. KANSAS CITY HOME TELEPHONE CO.

Kansas City Court of Appeals. Missouri.

October 1, 1906.

Rehearing Denied November 5, 1906.

1. MUNICIPAL CORPORATIONS—STREETS—OWNERSHIP OF FEE.

The owners of lots abutting on a public street in a town or city are the owners of the fee to the middle of the street.

2. APPEAL — VERDICT — CONFLICTING EVIDENCE.

A verdict based on conflicting evidence is conclusive on appeal.

3. TRIAL—INSTRUCTIONS—SURPLUSAGE.

Where, in an action against a telephone company for cutting a tree in a street in front of plaintiff's property, it was proved that the tree was not cut until at least a month after defendant's poles and wires were constructed, and there was no evidence that there was any necessity for the act, an instruction that if defendant "unlawfully" cut the tree, and the market value of the property was thereby depreciated, plaintiff was entitled to recover, was not erroneous: the word "unlawfully" being mere surplusage.

4. TRESPASS — CUTTING TREES — NEGLIGENCE IMMATERIAL.

Where the act of a telephone company in cutting a tree in the highway in front of plaintiff's premises was unlawful, it was immaterial that the cutting was negligently done.

5. PLEADING—REPLY.

A reply denying the new matter set out in the answer, without specifying what new matter was referred to, is insufficient.

6. SAME—CONFLICTING ALLEGATIONS.

In an action against a telephone company for the cutting of a tree in the highway in front of plaintiff's premises, an answer denying the cutting, but alleging that, if defendant did cut the tree, it was because it was necessary in the construction of defendant's telephone line, was inconsistent and defective.

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by Ella S. Betz against the Kansas City Home Telephone Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Ward, Hadley & Neel, for appellant. Burnham & Brewster, for respondent.

BROADDUS, P. J.

The plaintiff's suit is for damages for the alleged wrongful act of defendant in destroying a certain shade tree growing in front of her property. She alleges in her petition that she is the owner of a certain lot of ground fronting on Walnut street in Kansas City, Mo.; that she had shade trees planted immediately in front of said lot along the sidewalk of the street to give shade and beauty to her said property, thereby to make her home more comfortable; and that defendant in May, 1904, unlawfully cut off the top of one of said trees, and did the same in such a careless and negligent manner as to cause it to die, to her damage in the sum of $300. The defendant in its answer made a general denial to the statements of plaintiff's petition, and that under the law it had the right to erect poles and wires in front of plaintiff's property, and that, if the top of plaintiff's tree was cut as alleged, it was reasonably necessary to be done in the erection and construction of its telephone system. The plaintiff, for reply, denies each and every allegation of new matter contained in said answer. The defendant at the trial objected to the introduction of any evidence on the ground that plaintiff's petition did not state facts constituting a cause of action, which was overruled by the court. Plaintiff's evidence tended to prove that she owned the lot mentioned; that Walnut street in front of her property was a public street; that there was a sidewalk and curb in said street and a grass plot between said sidewalk and curb; that between said sidewalk and curb there was a poplar tree; that in May, 1904, defendant's employés, who had strung telephone wires to poles which they had set on and along Walnut street in front of plaintiff's property, cut off the top of said poplar tree about 20 feet from the ground, which caused its death; that the value of her property prior to the cutting of said tree was $3,000; and that its value after the cutting of said tree was $2,700, or $2,750. The defendant's evidence showed that the poles were put up and the wires strung before the tree was cut. It tends to show that the tree was not cut by defendant's employés, but by the...