Langenberg v. City of St. Louis, 39842.

• Citation: 197 S.W.2d 621
• Decision Date: 14 October 1946
• Docket Number: No. 39842.,39842.
• Parties: G. OMAR LANGENBERG, Sole Surviving Statutory Trustee, ARROW REALTY AND INVESTMENT COMPANY, a Defunct Corporation, Appellant, v. CITY OF ST. LOUIS, a Municipal Corporation.
• Court: United States State Supreme Court of Missouri

197 S.W.2d 621 G. OMAR LANGENBERG, Sole Surviving Statutory Trustee, ARROW REALTY AND INVESTMENT COMPANY, a Defunct Corporation, Appellant,
v.
CITY OF ST. LOUIS, a Municipal Corporation. No. 39842. Supreme Court of Missouri. Division One, October 14, 1946. Rehearing Denied, November 11, 1946.

[197 S.W.2d 622]

Appeal from Circuit Court of City of St. Louis. — Hon. Wm. H. Killoren, Judge.

AFFIRMED.

Oliver J. Miller, Lashly, Lashly, Miller & Clifford and Robert G. Maysack for appellant.

(1) It is only necessary that petition state a claim upon which relief may be granted, the prayer or theory in the petition not being controlling. Kansas City, etc., R. Co. v. Alton R. Co., 124 F. (2d) 780; Downey v. Palmer, 114 F. (2d) 116; Cohen v. Randall, 137 F. (2d) 441; Giesy v. American Nat. Bank, 31 F. Supp. 524. (2) It was the duty of the trial court to apprise plaintiff wherein his petition failed to state facts showing he was entitled to relief, and to allow plaintiff to avail himself of all the remedies allowed by the new code, including a pretrial conference. Gerber v. Schutte Inv. Co., 194 S.W. (2d) 25; Cyclopedia of Federal Procedure (2nd Ed.), sec. 1989; Yale Transport Corp. v. Yellow Truck Co., 3 F.R.D. 440; Sec. 847.84, Mo. R.S.A. (3) Lower court was not bound by decision of previous judge in Division No. 1 who had sustained demurrer to second amended petition. Secs. 847.3, 847.59, Mo. R.S.A.; German v. Universal Oil Prod. Co., 77 F. (2d) 70; In re Watson, 86 Misc. Rep. 588, 148 N.Y.S. 902. (4) After property was sold by defendant city to plaintiff, sale revoked license under which city maintained water pipes, so city was under duty to remove water pipes upon demand made by plaintiff. An easement is an estate in land and must be created by writing, while a license may be created by parol. Dunham v. Joyce, 129 Mo. 5, 31 S.W. 337; Fuhr v. Dean, 26 Mo. 116; 2 Thompson on Real Property, sec. 710. (5) Since defendant had no easement, the water pipes inferentially were built under a license defendant had with the then owner, Mullanphy Estate. 2 Thompson on Real Property, sec. 715. (6) Sale of property by defendant to plaintiff revoked license under which defendant had built water pipes, and fact that defendant licensee made expensive improvements does not change situation. Houx v. Seat. 26 Mo. 178; Pitzman v. Boyce, 111 Mo. 387, 19 S.W. 1104. (7) When plaintiff demanded that city remove water pipes, it became city's duty to do so. Wright v. Brown, 163 Mo. App. 117, 145 S.W. 518. (8) Defendant's continuing to force water through pipes and refusal to remove pipes after plaintiff's demand subsequent to revocation of license constituted a trespass, as stated in plaintiff's petition, under which plaintiff is entitled to relief. Union Oil Co. v. Reconstruction Oil Co., 66 Pac. (2d) 1215; City of Chicago v. Troy Laundry Machinery Co., 162 F. 678; Lake Shore Building Co. v. City of Chicago, 207 Ill. App. 244; Blackford v. Heman Construction Co., 132 Mo. App. 157, 112 S.W. 287; Austin v. Huntsville Coal & Mining Co., 72 Mo. 535; Houck v. L.A. Tucker Truck Lines, 131 S.W. (2d) 366; Restatement of Law of Torts, secs. 158-161. (9) Defendant city's wrongful and vexatious continuation of condemnation suit caused decrease in valuation of property and loss of rental value, for which defendant is liable. Leisse v. St. Louis & I.M.R. Co., 2 Mo. App. 105, affirmed 72 Mo. 561; Simpson v. City of Kansas City, 111 Mo. 237, 20 S.W. 38; Winkleman v. City of Chicago, 213 Ill. 360, 72 N.E. 1066; Petroli v. Mayor and City Council of Baltimore, 166 Md. 431, 171 Atl. 45. (10) Continuing trespass of the city by forcing water through pipes was a taking or limitation of the use of plaintiff's property causing damages for which he is entitled to be compensated. State ex rel. v. McKelvey, 301 Mo. 1, 256 S.W. 474; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 647; Fulton Inv. Co. v. Farmers Reservoir Co., 76 Colo. 472, 231 Pac. 61. (11) Defendant city, as such, is not immune from suit because in operating waterworks, it acts in its proprietary, not governmental capacity, so that it is subject to tort liability for its trespasses or nuisances. Stifel v. St. Louis, 181 S.W. 577; Lockhart v. Kansas City, 351 Mo. 1218, 175 S.W. (2d) 814; Public Service Comm. v. City of Kirkwood, 319 Mo. 562, 4 S.W. (2d) 773; Cooley on Torts (4 Ed.), chap. 19, sec. 450.

George L. Stemmler, Charles J. Dolan and Oliver Senti for respondent.

(1) Appellant was not entitled to file another amended petition except by leave of court or by written consent of respondent. Code of Civil Procedure, Sec. 81. (2) The granting of a pre-trial conference is discretionary with the court. Code of Civil Procedure, Sec. 84. (3) At the time of the conveyance of the property in question by the Mullanphy Board, acting through the City of St. Louis as trustee, the water mains were already under the land. (4) At the time of the said conveyance the portion of the land occupied by the mains had already been appropriated for a public use, and, therefore, there was no violation of appellant's rights in forcing water through said mains after the said conveyance. James v. City of Kansas, 83 Mo. 567; Blankenship v. Kansas Explorations, Inc., 325 Mo. 998, 30 S.W. (2d) 471; Stigers v. City of St. Joseph, 166 S.W. (2d) 523. (5) The right of the city to maintain and operate the watermains under the land in question having accrued prior to the conveyance, the plaintiff has no claim against the City of St. Louis for their continued maintenance and operation over its objection. James v. City of Kansas, 83 Mo. 567; Blankenship v. Kansas Explorations, Inc., 325 Mo. 998, 30 S.W. (2d) 471; Stigers v. City of St. Joseph, 166 S.W. (2d) 523. (6) The continued use of the mains for the purpose of pumping water through them after the conveyance did not constitute a trespass, because it was merely a continuance of a public use to which the land was already subject at the time of the conveyance. James v. City of Kansas, 83 Mo. 567; Blankenship v. Kansas Explorations, Inc., 325 Mo. 998, 30 S.W. (2d) 471; Stigers v. St. Joseph, 166 S.W. (2d) 523.

VAN OSDOL, C.

Plaintiff has appealed from a judgment dismissing an action for $50,000 damages for alleged unlawful deprivation of the use and enjoyment of lands.

The principal question presented is whether plaintiff's fourth amended petition states a claim upon which relief can be granted; and, should this court rule the petition is in such respect insufficient, then a further question is presented — did the trial court err in rendering judgment of dismissal without permitting...