Morgan v. City of Rolla, 21256

• Decision Date: 30 June 1997
• Docket Number: No. 21256,21256
• Citation: 947 S.W.2d 837
• Parties: Joseph E. MORGAN and Molly E. Morgan, Plaintiffs-Respondents, v. CITY OF ROLLA, Missouri, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 837

947 S.W.2d 837

Joseph E. MORGAN and Molly E. Morgan, Plaintiffs-Respondents, v. CITY OF ROLLA, Missouri, Defendant-Appellant.

No. 21256.

Missouri Court of Appeals,

Southern District,

Division One.

June 30, 1997.

John D. Beger, Rolla, for appellant.

Dan L. Birdsong, Thomas, Birdsong, Clayton & Becker, P.C., for respondent.

BARNEY, Presiding Judge.

Appellant City of Rolla, Missouri (Defendant) appeals from a judgment of the Circuit Court of Phelps County, Missouri, which ordered it to allow Respondents Joseph E. Morgan and Molly E. Morgan (Plaintiffs) to make connections with its sewer system.

On June 28, 1985, Defendant and John Pozner and Bess Pozner ("Pozners") entered into an agreement which granted Defendant an easement to construct a sewer main across the Pozners' property. The Pozners' property consisted of approximately fifty acres and was located south of Defendant's city limits. As considerationfor the agreement, Defendant granted the Pozners, their successors, assigns, personal representatives and heirs the right to connect subdivision sewer lines to the sewer main that Defendant was to construct and maintain across the Pozners' property.

On March 19, 1996, Plaintiffs purchased the Pozners' property by warranty deed, subject to Defendant's easement. Also on March 19, 1996, the Pozners made an assignment to Plaintiffs of all their rights under their easement agreement with Defendant.

After purchasing the property from the Pozners, Plaintiffs desired to develop the land for single family residences. Plaintiffs requested from Defendant a permit authorizing them to connect to its sewer main located on their property. Defendant denied Plaintiffs' request.

Defendant advised Plaintiffs that their property would have to be annexed into Defendant's city limits before they could have access to the sewer main. Plaintiffs did not desire to have their property annexed into Defendant's city limits. Furthermore, Plaintiffs did not interpret the easement agreement to require annexation of their property before they could connect to the sewer main. Therefore, Plaintiffs filed an action for specific performance of the easement agreement and a court-tried case ensued. Judgment was entered in Plaintiffs' favor and Defendant appealed.

An appellate court is to sustain a judgment in a court-tried case unless there is no substantial evidence to support it, unless it is against the manifest weight of the evidence, or unless it erroneously declares or applies the law. Landers v. Huffman, 914 S.W.2d 394, 396 (Mo.App.1996) (citing Murphy v. Carron, 536 S.W.2d 30, 31 (Mo. banc 1976)).

We defer to the trial court on questions of credibility of witnesses and the choice between conflicting evidence. Id.; see also Rule 73.01(c)(2). ¹ A court of review should exercise the power to set aside a decree or judgment on the ground that it is against the manifest weight of the evidence with much circumspection. See Murphy, 536 S.W.2d at 32.

In Defendant's sole issue on appeal, it charges the trial court with error in ordering specific performance of the easement agreement between Plaintiffs and Defendant because the court's judgment was not supported by substantial evidence and was against the manifest weight of the evidence.

The gist of the parties' dispute is the interpretation of the easement agreement between Plaintiff and Defendant. Section 2 of the easement agreement states as follows:

In consideration of the foregoing, City agrees that Sellers, their successors, assigns, personal representatives and heirs shall have the right now and at any time in the future to connect subdivision sewer lines to the sewer main to be constructed by City across the easement herein described with the understanding that there shall be no sewer connection fee or other tax or license charged by City for such connection. It is understood and agreed by the parties that any such connection shall in all other respects comply with the ordinances, rules and regulations now established or hereinafter promulgated by City and reasonably necessary for the safe, proper and sanitary use of said sewer system. City also agrees to install "stub-outs" at manholes 48, 50 and 56 for the aforesaid purpose.

Defendant argues that this easement agreement is subject to section 35-133 of its municipal ordinances. This section requires that a sewer user's property, located outside the city limits, be annexed into the city limits before sewer connections are made to its sewer main.

Section 35-133 states in pertinent part as follows: "No person shall be permitted to connect any sewer line to any part of the sewer system of the city which lies outside the corporate limits of the city...." Defendant's Resolution 1191, passed in April 1992, also prohibits sewer connections to those users outside Defendant's city limits unless their property is first annexed by Defendant. Defendant argues, therefore, that annexation is a prerequisite to allowing Plaintiff to connect to its sewer system.

Defendant maintains that the weight of the evidence supported a finding that ordinance 35-133 required Plaintiffs to voluntarily annex their property into Defendant's city limits before being permitted to connect to its sewer system, and that the clear intention of the parties in this case was that the property in question would be annexed into Defendant's city limits before making sewer connections. We disagree.

The parties' easement agreement unambiguously states that any sewer connection made pursuant thereto shall comply with all ordinances, rules and regulations "reasonably necessary for the safe, proper and sanitary use of said sewer system." (emphasis added). Nowhere in the agreement is there any language that purports to require annexation as a condition to making sewer connections.

Indeed, we are of the opinion that when Defendant entered into the easement agreement with Plaintiffs' predecessor in title that it constructively waived annexation as a condition precedent to connecting to its sewer main. "Waiver" has been defined as:

The intentional relinquishment of a known right, on the question of which intention of the party charged with waiver is controlling, and if not shown by express declarations but implied by conduct, there must be a clear, unequivocal, and decisive act of the party showing, such purpose, and so consistent with intent to waive that no other reasonable explanation is possible.

Errante v. Kadean Real Estate Service, Inc., 664 S.W.2d 27 (Mo.App.1984).

The language in the agreement of "now or at any time in the future" can not be construed as requiring a condition precedent to making sewer connections. The word "now" is defined as "[a]t this time, or at a present moment ... at the present time." BLACK'S LAW DICTIONARY 1065 (6th ed.1990). Defendant was aware when the agreement was made that Plaintiffs' property was outside its city limits.

Further, "[a] condition precedent is an act or event that must be performed or occur, after the contract has been formed, before the contract becomes effective." Gillis v. New Horizon Dev. Co., Inc., 664 S.W.2d 578, 580 (Mo.App.1983). Conditions precedent are disfavored and contract provisions are construed as...