Ingram v. Great Lakes Pipe Line Co.
| Decision Date | 26 May 1941 |
| Docket Number | 19866,19891 |
| Citation | 153 S.W.2d 547 |
| Parties | Maud Ingram, Respondent, v. The Great Lakes Pipe Line Company. a corporation, and John J. Connor and Lawrence E. Connor, d/b/a Connor & Son Construction Company, Appellants, |
| Court | Kansas Court of Appeals |
APPEAL FROM JACKSCON CIRCUIT COURT.
REVERSED & REMANDED.
This is an action for trespass to real estate. Plaintiff recovered a verdict and judgment in the sum of $ 2000 actual and $ 1000 punitive damages. However, as a condition to overruling defendants' motions for a new trial, plaintiff was required to remit the punitive damages and $ 200 of the actual damages, leaving a judgment in her favor in the sum of $ 1800.
The defendant, Great Lakes Pipe Line Company, (hereinafter referred to as the Pipe Line Company) and thedefendants, John J. and Lawrence E. Connor, (hereinafter referred to as the Connors) took separate appeals. The cases have been consolidated in this court and, as the points raised by each of the appellants for reversal are substantially the same, they will be covered in one opinion.
The facts show that, in the year 1930, plaintiff, being the owner of a farm of 120 acres in Linn County, Kansas, fitted principally for the raising of live stock, executed an instrument giving the defendant, Pipe Line Company, an easement over her land for the purpose of laying and maintaining pipe lines. A pipe line was constructed in that year. In 1937, said defendant constructed a second pipe line over the right of way through her land about 8 or 10 feet west of the first line. About 24 feet east of the first pipe line, and 32 to 34 feet from the new line, there was located a spring on plaintiff's land. This spring was in the side of an embankment of a creek, the spring being between the pipe lines and the creek bed. The spring was in plain view of anyone walking along the right of way. The fight of way ran in a general north and south direction and crossed the creek about 85 feet west and slightly north of the spring. The Pipe Line Company employed its co-defendants to construct the ditch for the laying of the new pipe line.
In plaintiff's petition she alleges that all of the defendants were jointly engaged in laying the pipe line and that they negligently, intentionally and wilfully destroyed the spring by blasting, using high explosives, at a point in close proximity to the spring. In another paragraph of her petition plaintiff alleges that defendants "did intentionally and maliciously jointly conspire, scheme and plan to use heavy charges of explosives and dynamite and in pursuance of said conspiracy, scheme and plan, did so use said heavy charges of explosives and dynamite, although defendants then and there uponentering said unlawful conspiracy realized that by so using said high explosives they were likely to damage and injure plaintiff's spring, as she had previously warned them".
The petition asks for the recovery of the difference between the value of the farm before the destruction of the spring and its value thereafter, and prays judgment in the sum of $ 2000 actual and $ 1000 punitive damages.
None of the parties pleaded the laws of Kansas.
Plaintiff's evidence tends to show that the blasting was done by the use of dynamite and occurred in the bed of the creek where the new pipe line ditch crossed it; that the spring in question had been in existence for a great many years; that it was a perennial, ever-lasting spring that never went dry at any time; that there was a continuous flow of fresh, clear and cool water from it; that it was the principal source of supply of water for the farm where much live stock was maintained; that the spring was 7 or 8 feet deep and extended through the soil into the limestone; that there was a vein of water about the size of one's wrist flowing into the spring near the bottom thereof, coming through the limestons and fromthe general direction where the blasting was done. Water could be seen boiling up at the place where the vein entered the spring by persons who cleaned out the spring sometime before the blasting.
Plaintiff testified that she warned Mr. Connor, one of the defendants, before the blasting was done, not to blast near the spring; that she also warned the operator of the ditching machine owned by the defendants, Connors, and the "supervisor" thereof, and that previously she had warned a Mr. Sprague, who was employed by the Pipe Line Company. However, there was no evidence as to whether Sprague was such an agent of that company as authorized to receive such a warning on its behalf, the evidence being merely that he was an "adjuster" for that company.
In laying the new pipe line the defendants. Connors, dug a ditch by the use of the ditching machine. This machine was incapable of excavating solid rock and it was necessary for them to blast where the right of way crossed the creek bed. The exact nature of this creek is not clearly shown by plaintiff's testimony but it seems to have been more or less of a wet weather creek running water intermittently throughout the year except where it was fed by the spring in controversy, and possibly others.
Plaintiff's evidence further tends to show that, on July 4, 1937, she, and several other persons in the vicinity, heard heavy blasting where the right of way crosses the creek, there being several successive shots heard. Plaintiff testified that, before the ditch was dug across the creek, the water in it was dammed up above. There is other testimony that the creek was dry at the place of the blasting.
Plaintiff's son-in-law, Mr. Diehn, testified that on July 4, 1937, he heard 12 or 14 shots so heavy that they jarred the window lights in the house some distance away; that when he went to the place of the blasting he saw a stream of water as big as his arm coming down the ditoh, "it would just boil up", which theretofore had been dry. There was evidence that the ditch was about 5 feet in depth and 3 feet wide; that it was half full of water when Diehn arrived, and that there were 12 or 14 shots set off on the next day at the same place. Diehn testified that, the day after the first blasting the spring was not running and, within three days thereafter "the water was gone from the spring", and that it remained dry.
Plaintiff, herself, testified that, on July 4, 1937, when she went to the place where the blasting was done, she found rocks in a corn field which had been thrown 50 or 60 feet; that "they were old lime rocks"; that she went down to the scene of the blasting after working hours; that the water in the creek was then dammed up above the ditch and had not come into the ditch; that the water in the ditch looked different than that in the creek.
Plaintiff introduced a witness, Mr. Walker, who was experienced in drilling oil and water wells in the vicinity of the spring. He testified that there were two strata of limestone at and in the vicinity of the spring, one about 31 inches in thickness and the other, or lower, much thicker, the witness not knowing how thick; that the water that ran into the spring came through the upper layer; that this limestone had holes or pores in it and that these little crevices ran from a general northwesterly to a southeasterly direction; that between the two layers of lime was a yellow streak of clay, which was hard but had holes in it, "which makes it possible for water-ways" to be present; that the force of the blasting done by dynamite would be downward; that the effect of the blasting upon the limestone "would have a tendency to crack that rock and break it and the water would rise up in through those crevices, cracks, which the dynamite made or it could mash the vein and turn it some other way"; that "It would crack it and come up through the crack, or it might close the vein up and send it in some other direction"; that the water which did come up would follow the ditch; that the water would not necessarily continue to come up out of the ground; that various things could happen to it; that .
There was evidence that this type of limestone was a carrier for water veins; that .
Defendants filed pleas to the jurisdiction and now insist that the court erred in overruling them. In this connection it is contended that this action is purely a local one, being one for injury to realestate and, since the land was situated in another state, the courts of Missouri lacked jurisdiction over the subject matter.
It is admitted by both parties hereto that the nature of this action is one for damages for trespass to realestate. Under the common law, which has been followed by a great majority of the courts of this country, an action for trespass to realestate is considered a local action, and cannot be brought in any state other than where the property is situated. Although this rule has been severely criticized by some of the courts they have felt constrained to follow it because it is firmly embedded in the common law. (See 14 Am J.P. pp.432,433.) However, it has been held, in this state, by our Supreme Court, that by reason of the venue statutes of this state, actions affecting realestate are not local unless they directly affect the title. (Coleman v. Lucksinger, 224 Mo. 1, 123 S.W. 441. See, also, Gregg v. The Union Pac. Ry. Co., 48 Mo.App. 494; Hannibal & St. Jos. R.R. Co. v. Mahoney, 42 Mo. 467; Rothrook v. Cordz-Fisher Lbr. Co., 146 Mo. 57, 47 S.W. 907; ...
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