Gilbert v. K.T.I., Inc.

Decision Date13 December 1988
Citation765 S.W.2d 289
PartiesMichael J. GILBERT and Laura B. Gilbert, Respondents, v. K.T.I., INC., Appellant. WD 40364.
CourtMissouri Court of Appeals

Danieal H. Miller, of Cleaveland & Miller, Columbia, for appellant.

Thomas M. Dunlap of Whitlow, Riley, Mariea & Dunlap, P.C., Fulton, for respondents.

Before FENNER, P.J., and MANFORD and GAITAN, JJ.

MANFORD, Judge.

Plaintiffs-respondents, Michael and Laura Gilbert, (hereinafter respondents) filed a Petition for Temporary Restraining Order, Preliminary Injunction and Injunction requesting the trial court to restrain and enjoin defendant-appellant, K.T.I., Inc., (hereinafter appellant) from interfering with respondents' use of an easement over the property of appellant. The Petition also sought actual and punitive damages for the interference of the easement. The trial court entered a temporary restraining order and Permanent Injunction ordering appellant to remove the obstacles which interfered with the easement. The issue of damages was presented to a jury which returned a verdict awarding respondents $3,200.00 actual damages and $10,000.00 punitive damages. Judgment was entered and this appeal followed.

This dispute centers around an easement over a stairway situated between two adjacent, two-story buildings on Court Street in Fulton, Missouri. The buildings had a common source of title in William S. Maerz. Maerz sold the building located at 403 Court Street to respondents. Maerz retained ownership of the building at 401 Court Street, but granted respondents an easement. That easement is a non-exclusive easement over, across and by use of a stairway located to the south of the frontage of the building at 403 Court Street. The stairway provides access to the second floor of the building at 403 Court Street and to the second floor of the adjoining building at 401 Court Street.

Maerz sold the building located at 401 Court Street to appellant's predecessor in title. The building was eventually purchased by appellant.

Respondents used the second floor of the 403 Court Street Building as rental property. In June, 1986, respondents were denied access to the stairway. Appellant replaced the old door at the bottom of the stairway on the first floor with a metal door containing a dead-bolt lock and a regular entrance door lock. Respondents requested, but were not given, the keys needed for access. At the top of the stairway on the second floor, appellants constructed a brick wall, thereby filling in the doorway entrance to the second floor of the building at 403 Court Street. Respondents were unable to use the easement over the stairway from June 16, 1986 through February, 1987 and, consequently, were unable to rent the apartments on the second floor of their building.

Appellant raises four points on appeal which charge, in summary, that the trial court erred in (1) instructing the jury with a verdict director modified from M.A.I. 27.03; (2) overruling appellant's motion for a directed verdict on the issue of punitive damages; (3) denying appellant's motion for mistrial based on opposing counsel's remarks regarding the presence of insurance coverage; and (4) denying appellant's motion for mistrial based on opposing counsel's references to the size, wealth and corporate status of appellant.

Appellant's first point contends that the trial court erred in giving Instruction No. 6, M.A.I. 27.03 Modified, as a verdict director. Respondents tendered Instruction No. 6, fashioned after the model approved instruction for ejectment-damages only, in the following format:

Your verdict must be for Plaintiffs if you believe:

First, Defendant was in possession of the premises claimed by the Plaintiffs on June 16, 1986, and

Second, Plaintiffs had the right to access to the premises on said date by reason of Plaintiffs' ownership of an easement over and across said premises, and

Third, Defendant had knowledge of Plaintiffs' claim to access to the premises on June 16, 1986, and

Fourth, Defendant denied Plaintiffs access to the premises thereafter.

Appellant objected to Instruction No. 6 on the grounds that the court had no basis under the pleadings or evidence to give it, there was no legal basis because the instruction was not a fair statement of the law, and the instruction was not justifiable under the facts. All objections were overruled without comment by the trial court. Appellant did not submit proposed instructions.

At issue is whether this modified ejectment instruction was proper in this action based on the obstruction of an easement. Ejectment is a possessory action testing the right to possession of real property. Polette v. Williams, 456 S.W.2d 328 (Mo.1970), appeal after remand, 496 S.W.2d 340 (Mo.App.1973); City of St. Charles v. DeSherlia, 303 S.W.2d 32 (Mo.1957), transferred to 308 S.W.2d 456 (Mo.App.1957). By statute, an action for the recovery of the possession of premises may be maintained in all cases where the plaintiff is legally entitled to the possession thereof. § 524.010, RSMo 1986. Ejectment does not depend on title for relief; the criterion is the right to possession. First National Bank of Cape Girardeau v. Socony Mobil Oil Co., Inc., 495 S.W.2d 424 (Mo.1973). Such a cause of action is defeated, regardless of the ownership of real estate, if plaintiffs do not have, at the time the action is commenced, a right to possession. Harris v. L.P. and H. Constr. Co., 441 S.W.2d 377, 383 (Mo.App.1969). Relief in an ejectment suit may be a judgment for possession and damages. Corbin v. Galloway, 382 S.W.2d 827, 829 (Mo.App.1964).

Ejectment will lie for any corporeal hereditament of which the sheriff can deliver possession. Kirk v. Mattier, 140 Mo. 23, 41 S.W. 252, 254 (1897). The estate or interest sought to be recovered in an action of ejectment must be of a tangible or visible nature, thus, the rule that ejectment is not ordinarily maintainable for the recovery of an incorporeal hereditament which is incapable of physical delivery. 25 Am.Jur.2d Ejectment § 6 (1966); 28 C.J.S. Ejectment § 6 (1941).

An easement is a nonpossessory interest; it is an interest in the land in the possession of another which entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists. Restatement of Property § 450 (1944); Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894 (1945); Farmers Drainage Dist. v. Sinclair Refining Co., 255 S.W.2d 745 (Mo.1953). The easement owner who finds it necessary to resort to the courts for protection of his easement is debarred from actions traditionally established for the protection of a possession, such as trespass, writ of entry and ejectment, because the easement owner does not have the prerequisite possession. 3 Powell on Real Property, Easements p 420, p. 34-231. The Missouri Supreme Court has ruled that an action of ejectment does not lie for a mere right of way, nor can ejectment be brought for a mere easement in any case because an easement is intangible and incapable of delivery by the sheriff. 1 Brier v. State Exchange Bank, 225 Mo. 673, 125 S.W. 469, 473 (1910). Although the Brier case occurred years ago, its facts are very similar to those in the instant case. In Brier, a "partnership stairway" existed between two adjacent, two-story buildings. Plaintiffs were granted an easement to use the stairway. The stairway easement became obstructed when the defendant bank made improvements to its building by erecting a large granite pillar directly in front of the partnership stairway entrance. Ejectment, however, was not a proper remedy to remove the obstructing pillar or to recover enjoyment of the easement over the stairway. The Brier holding directly applies to the instant case.

Appellant is correct in the contention that Instruction No. 6 based on ejectment was not legally correct in the instant case. Ejectment is not a proper cause of action in a suit for damages from the interference or obstruction of an easement because an easement is a nonpossessory interest. The jury should not have been instructed with Instruction No. 6, a modification of M.A.I. 27.03, based on ejectment-damages only.

Liability for damages from the interference or obstruction of an easement is a nuisance and a jury should be instructed accordingly. The law of nuisance seeks to resolve disputes arising from conflicts between landowners over uses of land. An interference with or obstruction of an easement is a nuisance. Mondelli v. Saline Sewer Co., 628 S.W.2d 697, 699 (Mo.App.1982).

If a Missouri Approved Instruction is applicable, such instruction must be given to the exclusion of all others. Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 206 (Mo. banc 1983). In this case, it was error to instruct the jury on ejectment using M.A.I. 27.03 when the correct substantive instruction would have been nuisance based upon M.A.I. 22.06. The prejudicial effect of the error is subject to judicial assessment. Rule 70.02(b), V.A.M.R. The Missouri Supreme Court stated in Fowler v. Park Corp., 673 S.W.2d 749, 756 (Mo. banc 1984), courts should reverse only for defects of substance with substantial potential for prejudicial effect. Id. at 755-56. Therefore, instructional error is no longer an automatic ground for reversal; it stands as a ground for reversal only when the record on appeal indicates substantial prejudice. Johnston v. Allis-Chalmers Corp., 736 S.W.2d 544, 547 (Mo.App.1987).

Before further addressing the arguments by the parties on whether the trial court error in giving the verdict-directing instruction based on an ejectment was prejudicial, it must be noted that Instruction No. 6 deviated from the approved M.A.I. 27.03 format for ejectment-damages only. Strict compliance with M.A.I. 27.03 would generate a verdict director as follows:

Your verdict...

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