Rahm v. Missouri Public Service Co.

• Decision Date: 11 September 1984
• Docket Number: No. WD,WD
• Citation: 676 S.W.2d 906
• Parties: J. Kirk RAHM and Elinor Rahm, Appellants, v. MISSOURI PUBLIC SERVICE COMPANY, Respondent. 35350.
• Court: Missouri Court of Appeals

Page 906

676 S.W.2d 906

J. Kirk RAHM and Elinor Rahm, Appellants, v. MISSOURI PUBLIC SERVICE COMPANY, Respondent.

No. WD 35350.

Missouri Court of Appeals,

Western District.

Sept. 11, 1984.

G. Spencer Miller, Miller & Dougherty, Kansas City, for appellants.

William H. Sanders, Sr., Pamela T. Henderson, Blackwell, Sanders, Matheny, Weary & Lombardi, K. Preston Dean, Kansas City, for respondent.

Before CLARK, P.J., and PRITCHARD and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

In the fall of 1979, an electrical utility supplier, Missouri Public Service (MoPub), relocated electrical lines so as to cross Lot 3 in Lake View Estates, Warrensburg, Missouri. At that time the then owners of the property gave consent to the relocation; the lines clearly visible have not been moved since installation. In April 1980 the plaintiffs purchased Lot 3. Nothing more was said or done until January 1982 when the plaintiffs notified MoPub they were granting it consent to leave the lines in place. MoPub rejected this offer as being unnecessary to maintain the electrical lines since the utility had obtained the consent it needed from the original owners. No formal easement was ever obtained by MoPub. It claims an easement by estoppel.

The plaintiffs' suit against MoPub alleging $10,000.00 in actual damages for trespass was dismissed by the trial court for failure to state a cause of action. The parties agree the effect of the dismissal was with prejudice. The plaintiffs then filed a motion to set aside the dismissal and for leave to file an amended petition. Included was an affidavit dated in July 1983 from the original owners stating they had consented to the moving of the lines in 1979 but they had assigned the right to withdraw consent to the plaintiffs and all causes of action to sue MoPub for damages by the previous owners was sold to the plaintiffs for $10.00. It is from a denial of this motion the plaintiffs appeal. Even liberally construing the pleading in a light most favorable to the plaintiffs, there is no principle of substantive law which would entitle the plaintiffs to relief. The proposed first amended petition claimed the plaintiffs, via the affidavit, had a right to damages for the trespass since MoPub had taken the property without compensation. Therefore this court affirms the trial court's action.

The plaintiffs contend that Rule 67.07 RSMo. makes it mandatory for trial courts to grant leave to amend pleadings. While it is customary for courts to allow first amended petitions, there is no absolute right to do so. Koller v. Ranger Insurance Company, 569 S.W.2d 372 (Mo.App.1978); Smith v. St. Louis County Softball Assoc., 623 S.W.2d 38, 40 (Mo.App.1981).

The standard of review requires that if any combination of facts alleged in the petition would, upon proof, entitle the plaintiffs to relief, then the trial court's order must be reversed. Shapiro v. Columbia Union Nat. Bank & Trust Co., 576 S.W.2d 310, 312 (Mo. banc 1978); Wilson v. General Mortgage Company, 638 S.W.2d 821, 822 (Mo.App.1982); Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 630 (Mo.App.1975).

The facts in this case are similar to and the case is governed by Vaughn v. Missouri Public Service Company, 616 S.W.2d 540 (Mo.Ap...