Public Water Supply Dist. of Pemiscot County No. 1 v. Fowlkes

• Decision Date: 11 October 1966
• Docket Number: No. 8500,8500
• Citation: 407 S.W.2d 642
• Parties: PUBLIC WATER SUPPLY DISTRICT OF PEMISCOT COUNTY NO. 1, a public corporation, Plaintiff-Appellant, v. Zula FOWLKES, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 642

407 S.W.2d 642

PUBLIC WATER SUPPLY DISTRICT OF PEMISCOT COUNTY NO. 1, a public corporation, Plaintiff-Appellant, v. Zula FOWLKES, Defendant-Respondent.

No. 8500.

Springfield Court of Appeals, Missouri.

Oct. 11, 1966.

James E. Reeves, Ward & Reeves, Caruthersville, for plaintiff-appellant.

Wendell W. Crow, Elbert L. Ford, Ford, Ford & Crow, Kennett, for defendant-respondent.

HOGAN, Judge.

This appeal is taken from an order refusing specific performance of an alleged agreement by the defendant to convey certain interests in land to the plaintiff, upon plaintiff's payment of the sum of $2,000.00 and the performance of certain other acts for the defendant's benefit. The plaintiff is a county Public Water Supply District organized under and governed by the provisions of Sections 247.010 to 247.220. ¹ The defendant is an individual landowner upon whose property the plaintiff has undertaken to locate a well, a pipeline and certain auxiliary installations necessary to the sale and distribution of water. The case, is, in reality, an adjunct to a condemnation action, the course of which must be incidentally noted. Neither the corporate existence of the District nor its authority to exercise the power of eminent domain ² is in issue in this court.

At some time prior to April 27, 1964, the plaintiff Water District decided to locate a well and a pipeline on the defendant's land. Initially, and apparently to avoid the necessity of condemnation, the District attempted to purchase the land and easement it needed by direct negotiation with Mrs. Fowlkes, but she refused to sell. The record evidence is that she was offered the sum of $2,000.00 at 'a meeting up there at the bank one night.' Only a few, sparse details of this negotiation appear in the record; it does appear that defendant was told the District could condemn the necessary property rights, that they would pay her $2,000.00 for them, and that she refused. In any event, on April 27, 1964, the District declared it necessary to acquire the defendant's property rights for its public purposes and authorized condemnation.

Shortly thereafter, the District filed a petition in condemnation in the circuit court. Among other things, the District pleaded its authority to exercise the power of eminent domain under the provisions of Section 247.050(7); that it was necessary for the plaintiff to acquire a one-acre tract (particularly described) belonging to the defendant 'for the purpose of constructing, erecting and maintaining a water well, treatment house and other buildings'; and that an easement across an adjoining tract (also particularly described) '(was) needed and necessary for the purpose of * * * laying * * * a water pipe line.' The petition specifically recited that the plaintiff 'cannot agree with the defendant owners * * * upon the proper compensation, if any, to be paid therefor * * *.' Though the defendant testified at one point that she was the sole record owner of the property involved, the plaintiff joined Mrs. Fowlkes' husband, and later her tenant, one Billy Joe Sides, as defendants in the action. The defendant promptly obtained counsel, who filed a timely answer raising a number of defenses. The cause was set for trial on May 20, 1964.

Shortly after the defendant's answer was filed, her attorney and counsel for the District had a telephone conversation 'concerning primarily the possibility of working out a compromise settlement.' On May 5, 1964, Mrs. Fowlkes' attorney wrote her a letter, 'detailing and explaining' the proposed compromise; the substance of the letter was that the District was 'to relocate the well on the east side of the drainage ditch that came out by her home, a payment of $2,000.00 to be made to her, and the district was to supply her without charge a water line to her home.' According to this attorney's testimony, on 'the Saturday night before May 21' (May 16), Mrs. Fowlkes called late in the evening, stating that she was dissatisfied with the District's taking any of her property, but authorizing her attorney 'to go ahead with (the compromise).' This attorney then advised counsel for the District of his discussions with Mrs. Fowlkes.

On May 20, the District's Board of Directors held a meeting, the minutes of which recite that '* * * Mr. and Mrs. Fowlkes (have) submitted the following proposition of settlement to the Board; that Mr. and Mrs. Fowlkes would withdraw their objections to the condemnation suit and convey (our emphasis) the one acre tract of land and easement described in the condemnation suit * * *' upon the conditions we have described. The minutes further recite that the following resolution was adopted:

'RESOLVED, that the District compromise and settle its condemnation suit against Zula Fowlkes and B. M. Fowlkes, upon the following terms and conditions; the District shall acquire the property rights described in the Resolution authorizing the condemnation suit duly adopted by the Board on April 27, 1964, the District shall pay to Mr. and Mrs. Fowlkes the sum of Two Thousand Dollars ($2,000.00), the location of the acre tract of land shall be on the east side of the ditch and the District shall lay a water line to the home of Mr. and Mrs. Fowlkes, said line to be of the same size and type generally in use by other water users.'

On May 22, 1964, counsel for the plaintiff addressed a letter to Mrs. Fowlkes' attorney, a copy of which was received in evidence. The letter states that on behalf of the District, there are enclosed 1) a check in the amount of $2,000.00; 2) a warranty deed 'from your clients to the Water District for a square acre of land located on the East side of the drainage ditch'; and 3) a right-of-way easement for a water pipe.

Mrs. Fowlkes did not execute the instruments enclosed. Instead, in a somewhat intemperate letter, she advised her attorney that 'I cannot (sic) sign those papers and you are not authorized to make any arrangements or deals for me. You've helped put me in bed sick.' Not unnaturally, counsel asked leave to withdraw, which was granted. On June 23, 1964, having employed new attorneys, the defendant filed amended responsive pleadings. On June 25, having added defendant's tenant, Billy Joe Sides, as a defendant, the District obtained a decree in condemnation, which recited specifically that the plaintiff and the defendants had endeavored, but were unable, to agree upon the proper compensation to be paid. Commissioners were appointed and were ordered to assess defendant's damages. On July 8, 1964, the commissioners filed their report, assessing defendant's damages at the sum of $2,800.00. The amount of the award was deposited with the circuit clerk on July 8, and both the District and the defendant filed exceptions, requesting an assessment of their damages by a jury. After considering and rejecting a proposal by the defendant to accept the sum of $3,250.00 as damages for the taking, the District, on December 10, 1964, filed this action for specific performance. The petition in this case set out that after the institution of the condemnation proceeding the defendant had, through her attorney, agreed to compromise the issues for the sum of $2,000.00, and prayed that the court order and direct the defendant, upon the payment of $2,000.00, to transfer to plaintiff the interest sought to be acquired by the said condemnation suit, and that defendant be required to dismiss her exceptions to the said condemnation suit with prejudice. On December 28, 1964, the defendant put the matter at issue by filing an answer in which she denied generally the allegations in the petition, and pleaded that the purported agreement was in violation of the Statute of Frauds. It should be noted that when the instant action was tried, the original file in the condemnation case was introduced in evidence by the plaintiff, and the court was asked to take judicial notice of the proceedings and the decree in condemnation. It should be further noted that counsel for the District characterized this lawsuit as '* * * an alternate on the exceptions.' Counsel continued: 'If we threw these cases out, we would start over and have a hearing on the amount of damages to be awarded her (defendant), not on the question of whether she is going to convey title to said real estate.' At another point, counsel for the District stated that 'we certainly don't insist on any deeds. We are content to get whatever rights we may have under that condemnation. That is what we are acquiring here.'

We need not recite at length the evidence given upon the trial. The court heard, among other witnesses, Mrs. Fowlkes' first attorney, and Mrs. Fowlkes. Mrs. Fowlkes' attorney testified that she had authorized execution of the agreement in question and had then repudiated it. The substance of Mrs. Fowlkes' testimony was that she had authorized settlement on such terms as would realize her a net payment, after expenses, of $2,000.00. Instead, she testified, her attorney had agreed to a gross settlement of $2,000.00, from which all her expenses had to be deducted. It was stipulated that the well and auxiliary buildings had in fact been located on the 'east side of the ditch,' and the plaintiff tendered its willingness to install the water line called for in its resolution. As indicated, the trial court denied specific enforcement. No findings of fact nor conclusions of law were requested, and none were volunteered.

We have had first to examine our jurisdiction of the appeal. As pleaded, the plaintiff's action was for specific performance of a contract which, at least in its inception, looked to the execution of a conveyance of land. Ordinarily an action for specific performance of a contract to convey land involves the title to real estate in the appellate jurisdictional sense, and jurisdiction of an appeal in such an action is in the Supreme Court. Article V, Section 3, Constitution of 1945; Drake v. Hicks, Mo., 249 S.W.2d 358,...