Massa v. Union Electric Light & Power Co.

• Decision Date: 07 June 1932
• Docket Number: No. 21845.,21845.
• Citation: 50 S.W.2d 714
• Parties: MASSA v. UNION ELECTRIC LIGHT & POWER CO.
• Court: Missouri Court of Appeals

50 S.W.2d 714

MASSA v. UNION ELECTRIC LIGHT & POWER CO.

No. 21845.

St. Louis Court of Appeals. Missouri.

June 7, 1932.

Rehearing Denied June 21, 1932.

Appeal from Circuit Court, St. Louis County; Amandus Brackman, Judge.

"Not to be officially published."

Action by Joe Massa, doing business as the Ramona Amusement Company, against the Union Electric Light & Power Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Theodore Rassieur and Alfred C. Wilson, both of St. Louis, for appellant.

Lemen & Vogel, of St. Louis, for respondent.

BENNICK, C.

This is an action for the recovery of the damages alleged to have been sustained by plaintiff in the operation of an amusement park as a result of defendant's act in erecting a fence or barrier across a road or driveway leading into the park. The verdict of the jury was in favor of plaintiff for $1,750 actual damages, and $1,000 punitive damages; and from the judgment so rendered, defendant has duly appealed.

Suffice it to say at this stage of the opinion that the fence was erected by defendant upon a strip of land concededly owned by it, and upon which it maintained one of its transmission lines, but over which plaintiff claimed an easement or right of way entitling him and his patrons to cross the same in order to reach the amusement park lying immediately adjacent thereto.

All of the land in question is a part of what was once known as the Kent farm, lying some three and one-half miles west of the city limits of the city of St. Louis, immediately west of the Carson road, and being bisected from northwest to southeast by the Ferguson street car line.

On January 25, 1917, defendant, by warranty deed, acquired a strip of the above land one hundred feet wide, extending generally parallel to the street car tracks, and in turn bisecting so much of the original Kent farm as lay to the southwest of the car tracks. It was upon this strip that defendant constructed its transmission line, which consisted of the usual large steel towers, from which wires or conductors were suspended for the transmission of high-voltage electricity from the Keokuk Dam to the company's Page avenue substation in St. Louis county.

Defendant's grantor, the Electric Company of Missouri, had acquired the strip by quit-claim deed from one Charles S. Ruffner, on May 5, 1913; and Ruffner himself had acquired title from the Kent heirs by conveyances executed February 10, 1912. The ultimate source of defendant's title is of importance only for the reason that, in the conveyances to Ruffner, the original grantors (having in mind, no doubt, that their remaining land was bisected by the strip so conveyed) expressly reserved "the right to select five (5) crossings of fifty (50) feet in width across the strip of ground above described." Seemingly, in the course of the several subsequent conveyances of the strip, this reservation of power was lost sight of; but the occasion for its discovery, and its significance in the case at bar, will hereinafter appear.

In 1926, through a series of mesne conveyances, Charles F. Vatterott and Jeanette Vatterott, his wife, acquired title to that portion of the Kent farm lying southwest of the car tracks through which defendant's strip of land extended, and thus became the owners of the land on both sides of defendant's property. It is through the Vatterotts, as we shall presently show, that plaintiff, Joe Massa, claims his right to the easement in question across defendant's strip of land.

As early as 1922, the portion of the Kent farm lying northeast of the car tracks had been subdivided into town lots, but the land southwest of the tracks continued to be utilized for the most part for general farming purposes until the time of the Vatterotts' purchase of it. During all this time the strip of land which had been acquired by defendant for its transmission line was not fenced off from the adjacent land, but instead defendant permitted the successive owners and tenants of the farm to pasture their stock upon it, to cultivate such portions of it as they chose, and to cross under the wires by foot or by wagons at such points as they pleased.

Such use of the strip also included the use of a road, which extended through the farm and across defendant's strip of land, and served as a short cut for persons wishing to cross over from the Carson road to the Natural Bridge road. This was the same road which was subsequently used for access to the amusement park, and which was closed to the public by defendant's erection of the fence or barrier across it at the point where it passed over the company's strip of land. It was described in the evidence as a well-defined dirt road; its continuous existence and use in the manner testified to was shown to have dated back beyond 1885; and while it was never regarded as a public road in the ordinary sense of the term, and was never improved by the county, but only by the owners of the land who paid taxes upon it along with the remainder of the farm, it was nevertheless used by common consent by the public generally, and particularly by the people residing in the neighborhood, and by their children as a way to school. Of course, there were gates which had to be opened and closed to permit access to the road, but its use was generally permitted and acquiesced in so long as the privilege was not abused, not only by the owners of the farm lands through which it passed, but also by defendant and its predecessors in title as well.

In 1926, shortly after the Vatterotts became the owners of the land lying upon both sides of defendant's strip, Vatterott opened up an amusement park, known as Ramona Hills Park, on the portion of the premises to the west of the strip, and placed an arch or gateway at the entrance to the park across the road in question, where ticket sellers and collectors could be stationed at the time the park was in use for amusement purposes. At all other times, however, the road was left open to the public generally, just as it had been during all the years prior to the Vatterotts' purchase of the land.

The park was particularly adapted and used for the holding of picnics by schools and by the employees of firms, and it was equipped with the usual sort of amusement devices found in such places. To improve the means of access to it, Vatterott macadamized a portion of the road, and oiled and graded the remainder, so that it would be better adapted for travel.

After the park had been thus put in operation, defendant opened up communications with Vatterott relative to his use of the roadway in question, which culminated in Vatterott's entering into a leasehold agreement with defendant as of May 1, 1927, whereby he leased a strip of ground one hundred feet wide where the old road ran across defendant's property into Vatterott's adjacent premises. The consideration for the lease was the sum of $25; it was for a term of one year, with the privilege of renewal from year to year thereafter, unless terminated by either of the parties in the manner provided for therein; and it obligated Vatterott to furnish defendant a bond in the sum of $50,000 to protect and indemnify the latter from any and all claims and actions which might arise out of the use of the premises covered by the lease. Mrs. Vatterott was not made a party to the agreement.

It is to be borne in mind that in acquiring and using the property, as well as in entering into the lease in question, Vatterott had no actual knowledge of the reservation heretofore referred to, entitling the owner of the land to select five crossings over defendant's strip. Nor, for that matter, was defendant aware of the reservation either; but it was acting as it did because of the new and added use to which the roadway was being put, and with a view to preventing such usage from becoming adverse to its own full and complete title.

When the lease expired on April 30, 1928, steps were taken to have it renewed, but no renewal was ever effected due to Vatterott's failure or inability to furnish such an indemnity bond as would be satisfactory to defendant. Negotiations continued, with Vatterott all the while using the roadway for his business without a lease, until July 23, 1928, when defendant wrote him, advising him of its intention to fence the right of way, and requesting him to cease trespassing on its property.

Vatterott thereupon employed an attorney, who chanced to have connections with an abstract company, and the attorney, through his investigation of the chain of title, discovered the reservation in the original deed of the right to select the five crossings over defendant's strip of land. Under plaintiff's evidence, defendant was notified of the discovery some two or three days before the barrier was erected, but deeming the easement to be unavailing, as it expressed itself to Vatterott, the defendant, on August 9, 1928, built a fence across the roadway so as to prevent the further use of it.

The fence was constructed of large posts set firmly in the ground, to which heavy wire was attached. It extended a distance of four or five feet beyond either side of the macadamized portion of the roadway, and was effectual to bar further travel upon the road, since at one end of the fence was a ravine or waterway, and at the other end a steep embankment.

On August 10, 1928, the day following the erection of the fence, Vatterott and his wife filed an injunction suit against defendant in the circuit court of St. Louis county, claiming an easement to the driveway in question by virtue of the reservation contained in the original deed; alleging that defendant had wrongfully barricaded the road; and praying a judgment and decree enjoining and restraining defendant from fencing, or maintaining the fence already constructed, across the roadway leading into the park.

Nothing was done with the suit until March 19, 1929, when it was dismissed pursuant to the terms of a written...