Jones v. Leath & Sons, Inc.
| Docket Number | WD 84771 |
| Decision Date | 02 August 2022 |
| Citation | 653 S.W.3d 629 |
| Parties | Kennedy JONES, Appellant, v. LEATH & SONS, INC., Respondent. |
| Court | Missouri Court of Appeals |
Kennedy Jones, Appellant Acting Pro Se.
Logan Lippert, St. Louis, MO, for respondent.
Before Division Three: Cynthia L. Martin, Presiding Judge, Lisa White Hardwick, Judge, W. Douglas Thomson, Judge
Kennedy Jones ("Jones") appeals from the trial court's judgment which found in favor of Jones and against Leath & Sons, Inc. ("Leath & Sons") on a claim of statutory trespass associated with the removal of a curb stop while assessing no damages, and which found in favor of Leath & Sons on a second claim of statutory trespass associated with the removal of dirt from Jones’ property. Because Jones cannot establish a claim of statutory trespass for either the removal of the curb stop or for the removal of dirt, and because in any event, the evidence viewed in the light most favorable to the judgment establishes that Jones’ property was restored by Leath & Sons after dirt was removed, we find no error, and affirm the trial court's judgment.
In 2016, the city of Kansas City, Missouri ("the City") hired Leath & Sons to complete a water main replacement project in the 6600 block of Askew Avenue ("the project"). The project required Leath & Sons to remove and replace a one-and-a-half-mile portion of the underground water main, to remove and replace curb stops, and to reconnect the new water main to existing underground service lines for residential properties in the block. Leath & Sons performed its work on the project between April 21, 2016 and May 9, 2016.
Curb stops are narrow, cast iron tunnels which lead from above ground, down to an underground shut off valve. Curb stops are used to control the flow of water from the City's water main to service lines for individual properties, as water service can be turned off by the City using a valve key on the above ground portion of a curb stop. The City owns the water main, service lines leading from the water main to curb stops, and the curb stops. Each property owner serviced by the City's water main owns the service line from the curb stop to the property owner's water meter, and the service line from the water meter to structures on the property.
Jones owns a duplex at 6636 and 6638 Askew Avenue. Each side of the duplex is serviced by a separate water service line connected to a separate water meter. Jones resides at 6636 Askew Avenue. The other side of the duplex, 6638 Askew Avenue, was vacant at the time Leath & Sons performed its work on the project.
Jones’ water bill for 6638 Askew Avenue was delinquent throughout at least 2015 and 2016. As a result, the City had turned off the curb stop between the City's water main and the service line for 6638 Askew Avenue. The curb stop connected to the service line for 6638 Askew Avenue was thus in the "off" position when Leath & Sons began its work on the project. The City instructed Leath & Sons to leave newly installed curb stops in the "off" position if the old curb stop was in the "off" position.1
In order to replace the City owned portion of the water main and underground service lines for 6636 and 6638 Askew Avenue, Leath & Sons excavated a hole directly behind the curb that was roughly six feet wide by seven feet long. In addition, Leath & Sons had to remove old curb stops connected to the service lines for 6636 and 6638 Askew Avenue before installing new curb stops. The new curb stops were installed directly behind the curb. However, the old curb stop for 6638 Askew Avenue that had to be removed was located some distance away from the back of the curb. The new curb stop for the service line to 6638 Askew Avenue was left in the "off" position.
On April 20, 2020, nearly four years after Leath & Sons completed the project, Jones filed a small claims court petition in the Circuit Court of Jackson County alleging trespass and property damage. Jones sought damages for the destruction of the old curb stop connected to the service line for 6638 Askew Avenue, and for the removal of dirt from his property. The small claims court entered judgment in favor of Leath & Sons on July 24, 2020.
Jones timely filed an Application for Trial De Novo. Jones then filed an amended petition ("Amended Petition"). Jones alleged in Count I that Leath & Sons committed statutory trespass in violation of section 537.340 because the City has no utility easement on Jones’ property, and Jones did not consent to the work on his property. Jones alleged in Count II that Leath & Sons’ statutory trespass caused him property damage because the removal of the old curb stop left him unable to restore water service to 6638 Askew Avenue without installing a new service line and curb stop, and because the excavated area behind the curb had not been restored to the proper grade.2
On June 30, 2021, the trial court conducted a trial de novo. Jones appeared pro se , and argued that Leath & Sons did not have permission to perform any work on his property. Jones introduced four documents which he argued established that the City has no utility easement on his property. These documents were: (i) a subdivision plat executed on May 12, 1920, which notes a three-foot wide right-of-way at the rear of Jones’ property for the City to build and maintain the sewer ("Sewer Right of Way"), but which notes no right-of-way at the front of the property; (ii) Kansas City Ordinance No. 23102, passed September 12, 1958, which created a grading easement at the front of his property ("Grading Easement"); (iii) a survey dated July 15, 1988 which noted the Sewer Right of Way and the Grading Easement, but no utility easement; and (iv) a title insurance commitment dated June 21, 1988, which noted as exceptions to title the Sewer Right of Way, the Grading Easement, and an "easement granted to Kansas City Power & Light Company by instrument filed January 5, 1925," but that did not note a utility easement. Alternatively, Jones argued that even if there was a utility easement along the curb on his property, the old curb stop that was removed was located well outside the easement.
Jones introduced photographs of the hole excavated behind the curb on his property. He introduced photographs of dirt removed from his property, and placed on a neighbor's property to fill a hole from a removed fire hydrant. Jones introduced photographs of his yard taken on May 9, 2016, which he claimed showed that although the excavated hole behind the curb had been filled, it "was not smoothed back out" and "had humps ... [and] waves ... and it was much lower than the original grade of the property."
Jones’ photographs also showed three metal objects protruding from the ground on his property at some distance away from the back of the curb. The objects were identified as the water meters for 6636 and 6638 Askew Avenue, and the old curb stop for 6638 Askew Avenue.3 No evidence was presented to establish exactly how far the old curb stop had been located from the back of the curb. Another photograph was taken after the old curb stop for 6638 Askew Avenue was removed.
Jones claimed he was damaged by Leath & Sons’ statutory trespass on his property because he could no longer access the old curb stop and would have to install a new one in order to restore water service to 6638 Askew Avenue. Jones submitted a bid for this work in the amount of $4,803.21. Jones also admitted evidence that the price for a bag of topsoil is $2.47, and that he would need 20 bags to restore the grade of the property along the curb line.
Leath & Sons admitted plans for the project prepared by the City, and stamped and sealed by a City engineer. The plans showed a right-of-way across the front of Jones’ property along the curb. Gregory Maupin ("Maupin"), field superintendent for the project, testified without objection that the right-of-way was a "utility right-of-way." Maupin testified that the right-of-way was roughly twelve feet wide calculated from the back of the curb, and that the City owned portion of the newly installed water main, service lines, and curb stops were all installed within the right-of-way. Maupin testified that Leath & Sons relied on the City's plans and on surveyors to determine the boundaries of the right-of-way. Maupin testified that his workers would not have gone beyond the boundaries of the right-of-way to perform work on the project except to replace a water meter, which was not done on Jones’ property. Finally, Maupin stated that a City inspector, Wesley Smith ("Smith"), took "measurements on depth of installation of [the] water main, [monitored] how the water main's being installed [and] he's also making sure we're abiding by the plans." Maupin testified that Smith showed up every day, that it was Smith's job to ensure that the project stayed within the right-of-way, and that Smith would have notified Leath & Sons had they extended beyond the right-of-way.
Maupin testified that after the work on the water main was finished, Leath & Sons filled all excavated holes and cleaned up all disturbed areas. Sod was installed, and Leath & Sons hired a subcontractor to water the sod to restore affected property to its pre-project state. After this restoration work was completed, Leath & Sons participated in a final walk-through with the City's inspector and project manager. The inspector and project manager generated a punch list for Leath & Sons which primarily consisted of restoration and cosmetic fixes. However, the punch list did not identify any issues with the restoration work on Jones’ property. Leath & Sons completed the punch list, and was paid by the City in September 2017.
Maupin also testified that Leath & Sons provided a three-year maintenance bond for the project, which covered...
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