Franke v. Southwestern Bell Tel. Co.

• Decision Date: 10 April 1972
• Docket Number: No. 1,No. 55533,55533,1
• Parties: Alfred FRANKE and Theodore R. P. Martin, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent
• Court: Missouri Supreme Court

Page 472

479 S.W.2d 472

Alfred FRANKE and Theodore R. P. Martin, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent.

No. 55533.

Supreme Court of Missouri, Division No. 1.

April 10, 1972.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 8, 1972.

A. Wimmer Carr, Donald W. Paule, Tremayne, Lay & Carr, Clayton, for appellants.

C. Kenneth Thies, Kerth, Thies, Schreiber, Hamel & Dee, Clayton, William C. Sullivan, W. Kenneth Lindhorst, St. Louis, for respondent.

HIGGINS, Commissioner.

Action by plaintiffs for $50,000 actual and $100,000 punitive damages for trespass to real estate, alleged to have occurred through use and occupancy of plaintiffs' land by defendant in maintaining an underground concrete conduit containing wires and cables through plaintiffs' land. Defendant denied the trespass and damages, claimed an easement across plaintiffs' land for purpose of maintaining its conduit, and prayed the dismissal of plaintiffs' action. Jury-waived trial resulted in a judgment which denied plaintiffs' claims for damages and granted defendant 'a franchise or property right with respect to its facilities and conduit as situated in the subject parcel, which right was subject only to the limited supervisory powers accorded the State Highway Commission under the laws of Missouri.' (Section 227.240, V.A.M.S.)

Appellants contend the court erred in its judgment because defendant had only a license under Section 227.240; that such license could not ripen into the 'franchise or property right' awarded defendant; that upon failure of defendant to move from plaintiffs' land upon revocation of the license by plaintiffs, defendant became a trespasser and, accordingly, the court should have assessed damages to plaintiffs for the trespass and taking of the 'property right' across plaintiffs' land.

Respondent supports the court's judgment contending that its rights to maintain its conduit across plaintiffs' land was superior to plaintiffs' title to the land; that the court properly recognized that defendant had a statutory easement across plaintiffs' property which could not be revoked by plaintiffs; and, further, that plaintiffs are barred and estopped by their failure to inform themselves at the time of their purchase of the land in question about 'utilities now in place' as recited in the quitclaim deed by which plaintiffs acquired their title.

Subject land is a tract of 330 front feet, 369 rear feet, and depths of 84 feet on the west and 93 feet on the east, at the intersection of Natural Bridge Road and Whitfield Lane, south of Interstate 70, immediately west of Hilton Inn and east of Lambert St. Louis Airport in St. Louis County, Missouri. Plaintiffs, as highest bidders at auction, purchased the tract from the Missouri Highway Commission at an excess property sale September 10, 1963. The sale was conducted pursuant to Section 227.290, V.A.M.S., which authorizes the Commission, whenever in its opinion the advantageous use of any interest in any land acquired by it has ceased, to convey the same by deed for the best available cash price. The auction sale notice described the subject tract along with 78 other tracts, and stated terms and conditions, including method of payment, necessity of approval of sale by the Commission, conveyance by quitclaim deed, and all sales 'as is, where is.'

Plaintiffs examined the property on the date of sale and found it covered with weeds up to three feet in height with a drainage ditch on the rear. They did not see Southwestern Bell manholes on the land. Immediately prior to the sale, representatives of the Highway Commission exhibited a plat of the tract made from plans kept by the Commission. The plat, examined by plaintiffs, did not show any underground conduit through the tract, and no mention was made of any such encumbrance when the auction commenced.

Plaintiffs were the successful bidders for the tract, paid the down payment of 10 per cent of the purchase price, and ultimately paid the total price of $32,428.59.

Immediately following their purchase of the tract, plaintiffs ordered a survey to determine limits of the land and existence and location of easements, if any. The survey showed an easement in Union Electric Company which was later determined to have been abandoned and its release of record was procured.

Plaintiffs' next step in perfection of their title was to order a title certificate and insurance policy from Security Title Company. They also arranged to close the deal by depositing the balance of the purchase price with Security Title with instructions to pay it over to the Highway Commission when the quitclaim deed was tendered and Security was prepared to issue a title policy showing the land free and clear of all encumbrances, particularly as to easements. Unless the title was so certified, plaintiffs were prepared to forfeit their 10 per cent down payment and not close the sale. Plaintiffs received Security's commitment to insure and a title insurance policy in Kansas City Title Company issued by Security as agent. Neither document showed any encumbrance by way of easements, or for telephone conduit across the tract.

Accordingly, the sale was closed and Security transmitted the Commission's quitclaim deed of April 9, 1964, to plaintiffs' straw party, Maxine Gay. The straw subsequently conveyed the land to plaintiffs by deed of December 30, 1964, recorded January 14, 1965. The Commission's deed contained a recital, 'Subject to existing utility easements of record, if any. Also subject to utilities now in place.'

On January 14, 1965, plaintiffs were called by their contractor who advised that in the course of an excavation on the land a telephone conduit had been uncovered. Plaintiffs went to Bell's office to inquire about the conduit and were advised that Bell claimed an easement for the conduit. Plaintiffs requested they be shown a copy of the easement but none was produced. A subsequent similar request by plaintiffs' counsel also was refused. Bell further refused to discuss the matter and claimed an absolute right to be on plaintiffs' property. No evidence of Bell's claim was produced, and plaintiffs proceeded with this action.

Prior to 1958, Bell had used and maintained telephone cables and appurtenances within the north side of the right of way of Natural Bridge Road. When plans were developed for construction of Mark Twain Expressway (Interstate 70), the Highway Commission determined that Bell's facilities should be moved and relocated in the south side of the right of way. Accordingly, in the summer of 1958 the Commission, pursuant to Section 227.240, V.A.M.S., ordered Bell to move its facilities to the south side of the highway right of way. Pursuant to such order, Bell filed 'Application to Locate Facilities Within the State Highway.' After the required public notice and hearing, the Commission, by letter of September 5, 1958, granted Bell 'permission' to construct proposed conduit and manholes along designated portions of the right of way; and by letter of September 9, 1958, the Commission transmitted its formal 'permit' for construction of underground conduit and manholes 'On South side of Outer Roadway from Woodson Road (Route EE) West to Edmundson Road, then North across FAI--1 (the highway) to existing facilities * * *.' The permit was further subject to Bell's agreement to promptly move, at applicant's expense, 'such part or all of said facility as the Commission may order, to such new location in the right-of-way as the Commission may designate, it being understood and agreed that the location of state highway right-of-way and of all facilities, as well as all highway construction and maintenance within the right-of-way, are always subject to change and orders by the Commission.'

Bell installed the conduit and manholes in question in the fall of 1958, and, in agreement with Commission's district engineer, installed the facilities in a manner to accommodate a 20-inch water main and an 8-inch gas main, neither of which is in issue in this action. The installation, in traversing its permitted route, crossed the land comprising the tract purchased by plaintiffs which was part of the right of way prior to the auction sale. The installation consisted of a 9-duct tile conduit with supporting cables and laterals, buried five to six feet, and manholes. The latter were covered by 27-inch manhole lids marked 'Bell System,' two of which were in subject tract. The conduit divides the property on a straight line about 25 feet from the front or north line until it reaches the eastern manhole where it angles northeast until it leaves subject tract. The eastern portion of the tract was thus more open and a car rental agency was built on the eastern one third of the tract without being affected by the conduit.

Plaintiffs adduced evidence of damages consisting of $250 per month since January, 1965, for trespass and loss of use of the western part of the tract, and damages for inverse condemnation averaging $37,500, and ranging from $25,000 to $75,000 depending upon the use that could be made of the land with the conduit running through it. Defendant's evidence on damages ranged between $12,000 and $17,000, based upon the difference between per square foot valuations as chosen by its appraisers.

Resolution of this appeal requires a determination of two principal questions: I. What right did defendant acquire from the Highway Commission with respect to the consent given it by the...