Langenberg v. City of St. Louis

• Citation: 197 S.W.2d 621,355 Mo. 634
• Decision Date: 14 October 1946
• Docket Number: 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

355 Mo. 634

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

October 14, 1946

Rehearing Denied November 11, 1946.

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. 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 P.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 A. 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 P. 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. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

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 plaintiff to further amend. It is contended by plaintiff that the trial court acted arbitrarily and in violation of the Civil Code of Missouri, Laws of Missouri 1943, p. 353 et seq.

December 8, 1922, Arrow Realty and Investment Company, a corporation, hereinafter referred to as Investment Company, bought (for subdivision, and lease and sale of lots for building purposes) a tract of land from the City of St. Louis, trustee under the will of Bryan Mullanphy, deceased. See Thatcher v. City of St. Louis, 335 Mo. 1130, 76 S.W. 2d 677; City of St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425; City of St. Louis v. McAllister, 281 Mo. 26, 218 S.W. 312; City of St. Louis v. Crow, 171 Mo. 272, 71 S.W. 132; City of St. Louis v. Wenneker, 145 Mo. 230, 47 S.W. 105; Chambers v. City of St. Louis, 29 Mo. 543. The instant action was instituted by Investment Company August 26, 1933. Prior to the effective date (January 1, 1945) of the Civil Code of Missouri, supra, the trial court had sustained general demurrers to the original petition, to the first amended petition, and to the second amended petition. December 31, 1941, Investment Company filed its third amended petition. Although defendant City filed motion to strike the third amended petition from the files and to dismiss, and prayed the trial court to adjudge plaintiff liable for treble costs (Section 948 R.S. 1939, Mo. R.S.A. sec. 948), the court did not rule on the motion. September 17, 1945, it was suggested to the trial court that Investment Company "had become defunct" prior to January 1, 1945, and the caption of the third amended petition was by leave of court interlined to show G. Omar Langenberg, "Sole Surviving Statutory Trustee" of Investment Company, as party plaintiff. September 18, 1945, plaintiff by leave filed the fourth amended petition, and September 28, 1945, defendant City filed its motion to dismiss and for judgment for defendant. It was stated in the motion as a ground for dismissal that plaintiff had failed to state a claim upon which relief could be granted.

The trial judge (presiding judge of Division Number One, Eighth Judicial Circuit) considered the fourth amended petition to be identical in effect with the second amended petition to which a general demurrer had been sustained as stated supra. The trial judge was not presiding in Division Number One when the general demurrer to the second amended petition had been sustained; but it was his practice not to review decisions made by the presiding judges preceding him in Division Number One, and the motion to dismiss and for judgment for defendant City was accordingly sustained, January 23, 1946.

Omitting formal allegations, description of lands and prayer for relief, the fourth amended petition alleged,

" . . that at the time of the conveyance of the real estate to the plaintiff . . . and unknown to . . . Investment Company, but known to defendant, there passed through and under the surface of . . . the real estate conveyed to plaintiff . . . one 36" water main and one 20" high pressure water main of the City of St. Louis; that although defendant knew that said Company purchased said property and thereafter platted and graded...