Harris v. L. P. & H. Const. Co.

• Citation: 441 S.W.2d 377
• Decision Date: 15 April 1969
• Docket Number: No. 33244,33244
• Parties: Ramon W. HARRIS and Jane L. Harris, his wife, Plaintiffs-Appellants, v. L. P. AND H. CONSTRUCTION COMPANY, and Missouri State Telephone Company, Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 377

441 S.W.2d 377

Ramon W. HARRIS and Jane L. Harris, his wife, Plaintiffs-Appellants, v. L. P. AND H. CONSTRUCTION COMPANY, and Missouri State

Telephone Company, Defendants-Respondents.

No. 33244.

St. Louis Court of Appeals, Missouri.

April 15, 1969.

Motion for Rehearing or to Transfer to the Supreme Court

Denied May 28, 1969.

Robert L. Carr, Potosi, for plaintiffs-appellants.

Thurman, Nixon, Smith & Howald, Louis Jerry Weber, Hillsboro, for defendants-respondents.

SMITH, Commissioner.

Action originally brought by plaintiffs-appellants, as landowners, for statutory trespass under Section 537.340 ¹ and ejectment. Defendants-respondents are a telephone company, and a construction company which erected telephone lines across plaintiffs' land for the telephone company. The case was tried before a jury on the asserted 'affirmative defense' of defendant Missouri State Telephone Company (hereinafter Telephone Company) requesting condemnation of an easement over plaintiffs' land. The jury awarded plaintiffs $800.00 as compensation for the taking and they appeal. Defendant L. P. and H. Construction Company (hereinafter L. P. & H.) was dismissed from the suit and this action of the trial court is also before us. We reverse and remand.

The issue is the propriety of the lower court's action in refusing to permit plaintiffs to try their two count lawsuit and permitting a trial solely on the Telephone Company 'defense' that the land be condemned.

In view of our disposition of the case no extended review of the evidence at trial is required but some discussion of the pleadings is.

Plaintiffs' petition, filed March 14, 1967, was in two counts. Count I sets out plaintiffs' ownership of certain land and that in the summer of 1966 the defendants trespassed on the land and cut down, injured, ruined and destroyed trees on the land. The trees were stated to be growing for use, shade and ornament and were intended as landscaping and natural beautification for the land as a homesite. Damage for the cutting of the trees was alleged as $1950.00. Defendants were stated to have no interest or right in the land. The prayer of Count I sought $5850.00, being the actual damages trebled as provided in Section 537.340.

Count II alleged the plaintiffs' right of sole possession of the land in the summer of 1966, and that at that time defendants entered and unlawfully took possession of a part of the premises and installed poles, guy wires, braces, cross arms, cables, wires, equipment and apparatus. This unlawful possession is alleged to have continued to the date of filing the petition to the damage of plaintiffs in the amount of $5000.00. The prayer sought recovery of possession (ejectment) and damages of $5000.00.

On April 10, 1967, Telephone Company filed its answer in the form of a general denial of all allegations. In October 1967, Telephone Company filed an amended answer admitting ownership of the land in plaintiffs and denying all other allegations. The amended answer further raised the defense of estoppel for failure to object and stated that the installation and erection of the equipment and apparatus was permanent and serves the general public as a portion of a telephone system. It also alleged as an 'affirmative defense' the power of eminent domain in itself and sought to have the issues tried as a condemnation case, and prayed that title to a perpetual easement be vested in it upon compliance by it with any orders of the court.

On the same day L. P. & H. filed an answer in the form of a general denial and set up the affirmative defense of estoppel.

Motions to strike both answers were filed by plaintiffs. The motion directed to the Telephone Company answer challenged the attempt by answer to commence a condemnation action. In December 1967, the court overruled the motions to strike and directed '* * * 'that the said cause shall be tried on the issues presented by the pleadings raised by the Defendants answers.'

On February 14, 1968, both defendants filed amended answers. L. P. & H. repeated essentially the allegations of its original answer and in addition pleaded it was the agent of Telephone Company in all conduct alleged in plaintiffs' petition. Thereafter, L. P. & H. filed a motion to dismiss alleging no cause of action; that it was not a proper party to a condemnation action; that it had no proprietory interest in the land; and that it was only acting as agent for Telephone Company. This motion was granted by the Court.

The second amended answer of the Telephone Company pleaded with more detail the defenses of the first amended answer but did not add any additional defenses or change the theory of defense.

Thereafter, the court appointed commissioners who filed their report assessing plaintiffs' damages at $3400.00 to which exceptions were filed by both parties. The record fails to demonstrate any payment to plaintiffs or to the court for the benefit of plaintiffs of the damages awarded by the commissioners as required under Article 1, Sec. 26 Mo.Const., V.A.M.S. or Sec. 523.040. Trial was conducted as if the matter were a condemnation proceeding and the jury assessed plaintiffs' damages at $800.00. Plaintiffs' motion for new trial was denied and timely appeal taken.

The parties are in agreement that the question before us is whether the procedure followed by the trial court in trying this cause as a condemnation case is proper. We hold it was not. The effect of the procedure followed below was (1) to dismiss plaintiffs' petition, (2) to permit the Telephone Company to condemn an easement over plaintiffs' land, retroactive to the date defendants first trespassed thereon. These determinations are based upon a misapplication of the doctrine of 'inverse condemnation.'

To support the trial court's action in preventing plaintiffs from trying their pleaded cause of action both defendants invoke the recognized doctrine that where an improvement by a public utility, built as a result of a trespass, is permanent and is for the benefit of the public, successive trespass actions do not lie, but the landowner must recover in one action all damages, past, present and future. Doyle v. Kansas City & S.R. Co., 113 Mo. 280, 20 S.W. 970(3); Tooker v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691(8), 101 A.L.R. 365; Beetschen v. Shell Pipe Line Corp., Mo.App., 248 S.W.2d 66(5) (hereinafter First Beetschen); Beetschen v. Shell Pipe Line Corp., 363 Mo. 751, 253 S.W.2d 785(4, 5) (hereinafter Second Beetschen).

It is the application of this doctrine which determines not only the propriety of the court's action on Count I but also on Count II and on the Telephone Company 'affirmative defense' of condemnation. The rationale of the doctrine is not difficult to understand. A landowner is entitled to bring successive damage actions for a continuing trespass for each successive period involved. Each day constitutes a separate cause of action, and supports a separate award of damages. First Beetschen, supra (5), Doyle v. Kansas City & S.R. Co., supra (3). The trespasser, having no right to remain on the land, is required to cease his trespass and until he does so is liable for damages on a continuing basis. If the trespasser is, however, a public utility an additional factor enters the picture, the welfare of the public. In that case if the trespassing structure is permanent, and if it is needed to serve the public or some portion thereof, then the landowner loses the right to force the removal of the structure and is entitled and required to recover his damages, past, present and future for the appropriation, in one action (but not necessarily in one count). Upon payment of those damages, the public utility acquires an easement for the continued maintenance of the structure. Doyle v. Kansas City & S.R. Co., supra (3).

This doctrine has been called 'inverse condemnation' or 'condemnation in reverse' because the ultimate legal status of the land is, as to both landowner and public utility, the same as if the land had been properly condemned. But although the end result may be the same, the theory is not. Condemnation is a statutory proceeding by which land needed for a public use is acquired. Inverse condemnation is a remedy designed not to protect the trespassing utility, but to save the public from the loss of needed services because of the improper conduct of the utility. Inverse condemnation is not an alternative to proper condemnation, but a method of protecting the public and still assure that landowners receive just compensation for that which was taken.

With these ideas in mind we turn to the case here. Plaintiffs seek relief on two separate causes of action; one in statutory trespass, the other for possession and damages resulting from the improper trespassing on their land by the defendants in erecting equipment and apparatus. This is a proper procedure. See Tooker v. Missouri Power and Light Co., supra.

As stated in First Beetschen, 248 S.W.2d 66, l.c. 70:

'* * * 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 * * *.

'In such case the aggrieved property owner has an election of remedies. He may proceed by way of injunction to restrain the installation, * * * or he may sue in ejectment, * * * or he may avail himself of R.S.Mo.1949 § 523.090; or he may maintain a common law action for damages * * *.'

In addition to these choices we hold the landowner may also proceed under Sec. 537.340 for that portion of his damage caused by the unlawful cutting of trees, and this remedy may be combined with the remedies set forth in the quote above. See Tooker v. Missouri Power and Light Co., supra.

Section 537.340 provides, 'If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or...