Kansas City Power & Light Co. v. Riss
| Citation | 312 S.W.2d 846 |
| Decision Date | 14 April 1958 |
| Docket Number | No. 2,No. 46116,46116,2 |
| Parties | KANSAS CITY POWER & LIGHT COMPANY, a Corporation, Respondent, v. Richard R. RISS, Appellant |
| Court | United States State Supreme Court of Missouri |
Gresham, Boughan & Whipple, C. David Whipple, Walter J. Gresham, Kansas City, for appellant.
Irvin Fane, Joseph J. Kelly, Jr., Howard F. Sachs, Spencer, Fane, Britt & Browne, Kansas City, for respondent.
BARRETT, Commissioner.
Since 1921 the Kansas City Power & Light Company has maintained poles and electrical transmission lines across a tract of land adjacent to and formerly belonging to Park College. The company claims that its poles and lines are there by reason of an easement, executed on September 12, 1921, from Park College. In September 1954, the appellant, Richard R. Riss, purchased the tract of land from Park College and immediately set about to increase the size of a lake on the land by constructing or enlarging a dam which the power and light company claims has dangerously inundated several of its poles. In January 1956, the company instituted this action in two counts against Mr. Riss; (1) to permanently enjoin him from enlarging the dam and lake or otherwise interfering with the safe maintenance of its poles and lines, and (2) to recover $753 damages, the cost of relocating one inundated pole caused by his trespass on the company's easement. In general effect Mr. Riss' answer to both counts of the petition was a general denial; as to the company's claimed easement there was this apecific allegation, 'Defendant says that the alleged easement claimed by plaintiff gave it no right to maintain its poles and lines at any particular place, or at any place which might interfere with the use and enjoyment of the property by defendant.'
At the conclusion of the evidence the trial court adopted the company's twenty proposed findings of fact and eleven conclusions of law which among other matters found that Park College had authority in 1921 to grant a valid easement and that it had granted the company a valid easement for the construction of its poles and lines. In its judgment the court found all issues for the company and the court specifically enjoined Mr. Riss from any further construction, particularly with respect to the dam and lake, which would interfere with or endanger its poles and lines. In addition, the court awarded the company $753 and retained jurisdiction so as to be able to give full effect to its judgment. Upon this appeal Mr. Riss urges several matters, among others it is claimed that under its charter forbidding encumbrances Park College had no authority to grant an easement and, hence, that the company's easement is void. Since the court found that the company had an easement and that the college had the power and authority to grant it, Mr. Riss urges that the appeal involves the title to real estate and is, therefore, properly lodged in this court.
As the appellant urges, an easement is an interest in real estate, and some actions concerning easements so involve the title to real estate as to confer jurisdiction of the appeal on this court, as in quiet title suits where easements are in fact found and decreed by the court. Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894. But it was not sought in this action to establish an easement and the defendant Riss did not seek to quiet the title, it was only incidentally that the court found an easement and the authority of the college to grant it. This, primarily, is an injunction suit and only injunctive relief was decreed, the court's inquiry into the easement was collateral and incidental and the court did not in point of fact adjudge or decree title in the appellate jurisdictional sense. Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721; Judge v. Durham, Mo.Sup., 274 S.W.2d 247; 17A Am.Jur., Sec....
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Kansas City Power & Light Co. v. Riss, 22878
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