Reutner v. Vouga
| Decision Date | 16 April 1963 |
| Docket Number | No. 31235,31235 |
| Citation | 367 S.W.2d 34 |
| Parties | Robert REUTNER and Lucille Reutner, His Wife, and Claud E. Kahmann, Plaintiffs-Respondents, v. Arnold VOUGA, David Davit, and Jean L. Vouga and Madeline Vouga, His Wife, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Grand, Peper, Martin & Roudebush, Malcolm W. Martin, Lewis R. Mills, William A. Richter, St. Louis, for defendants-appellants.
Gerwitz & Seegers, Gerald L. Seegers, St. Louis, for plaintiffs-respondents.
DOERNER, Commissioner.
This action in equity stems from the construction by defendants of storm sewers to serve their subdivision, situated in the City of Frontenac in St. Louis County The trial court granted plaintiffs certain equitable relief, as well as monetary damages, and defendants appeal.
The following sketch of the area will facilitate a better understanding of the facts and the issues presented on appeal:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
At all material times the defendants, except Arnold Vouga, owned the land denominated on the sketch as Vouga Estates. Their property extended from Conway Road on the south to the Missouri Pacific Railroad right-of-way on the north, and lay west of the unbroken line between those two points shown on the sketch, which will be referred to as the dividing line or the property line. About 1948 plaintiffs Robert and Lucille Reutner, husband and wife, purchased the parcel marked 'Reutner tract,' which adjoined and was east of the dividing line between the Vouga Estates and the other properties. Prior thereto, at their instigation, the then owners of the real estate lying on either side of the dividing line, by a written instrument filed of record, created for road purposes for their mutual use and benefit, and that of their heirs and assigns, the roadway easement indicated on the sketch by the dotted lines. This roadway easement was 20 feet wide, 10 feet thereof being on either side of the dividing line, and extended northwardly about 1150 feet from the center line of Conway Road.
At the time the Reutners acquired their property they installed a 10 foot rock driveway on the roadway easement, 5 feet thereof being on either side of the dividing line. This rock driveway ran from Conway Road northwardly for about 300 feet, to a turnaround between their house and their garage.
About 1954 plaintiff Kahmann purchased the 17.9 acre tract marked 'original Kahmann tract' on the sketch. As shown, the southern part of Kahmann's original land was adjacent to and east of Vouga Estates, but the northern portion, as indicated on the sketch, was separated from it by a 5 1/2 acre tract. The northern 4 1/2 acres of this tract was owned by Edouard Vouga and Katherine Alt Vouga, his wife, and the remaining acre by Josephine M. Alt. On November 29, 1957, plaintiff Kahmann entered into separate contracts with Mr. and Mrs. Edouard Vouga and Josephine M. Alt for the purchase of these 5 1/2 acres, and after one extension of the closing date he acquired the legal title to the properties on January 7, 1958. In the interim, on December 7, 1957, Mrs. and Mrs. Vouga granted an easement to the Metropolitan St. Louis Sewer District (hereafter called the Sewer District) across their 4 1/2 acre parcel which gave the Sewer District 'the exclusive right to build and maintain a sewer or sewers on the strip or strips of ground' as shown on the foregoing sketch. This easement was 10 feet wide and 170 feet long. Plaintiff Kahmann had actual knowledge of the grant at the time it was made, and, in fact, procured Mrs. Vouga's signature to the written instrument at the request of defendant Arnold Vouga. The latter, while not an owner of the property called Vouga Estates, was the son of defendants Jean L. and Madeline Vouga, and (as stipulated by the parties) acted as the agent for all of the defendants in the development of the subdivision and as such committed the acts which gave rise to this litigation.
The plans for the storm sewer system for Vouga Estates were prepared for the defendants by an engineering firm employed by them. Broadly speaking, the system as planned and constructed consisted of two parts, each independent of the other, one of which drains the surface water from the northern portion of the subdivision and the other from the southern part. In both parts, generally speaking, the flow of the water is from the west to the east. In accordance with the plans, defendants' sewer contractor laid the concrete pipe for the northern portion of the system up to the property line dividing Vouga Estates from Kahmann's 5 1/2 acre tract, and at the western edge of the easement granted to Metropolitan St. Louis Sewer District. At that point the end of the 33 or 36 inch pipe was several feet below the surface of the ground, and had nothing further been done the water could not, of course, have been readily discharged from the sewer. In order to alleviate the situation, defendants' sewer contractor, without the knowledge or consent of Kahmann, dug a ditch about 4 feet deep and 6 feet wide across the 170 foot strip comprising the easement granted to the Sewer District. The excavated material was piled to a height of 4 to 6 feet along the northern edge of the ditch, as were numerous trees felled during the digging. Kahmann testified that the obstructions prevented him from reaching the area north of the ditch with the tractor and rotary mower he customarily used to cut the grass. He also testified that defendants' grading contractor while grading the northern portion of defendants' subdivision ran heavy machinery over the northern part of the 5 1/2 acre tract, thereby destroying the grass and creating deep ruts in the denuded ground.
North of the Reutners' garage the ground sloped downward for about 100 feet to a swale, situated approximately at the point on the sketch indicated as manhole B. Sometime after they purchased their property the Reutners joined with Edouard and Jean Vouga in constructing a culvert, with concrete abutments at either end, underneath the 20 foot roadway easement at the low point of the swale. The plan for the storm sewer system for the southern part of Vouga Estates, as prepared by the engineers, provided for the sewer line to run to manhole A, from there to manhole B, and to then connect with the culvert underneath the roadway easement. As shown on the sketch, the manholes and the sewer line between them were located on the west or Vouga side of the roadway easement. During the work of construction the defendants' sewer contractor made two large excavations in the roadway easement for the manholes, the southern one being partly on the Reutners' rock driveway. A ditch was also dug in the easement between the manholes, along the edge of the rock driveway. As a result of the excavations and the mud which spread over the rock driveway, the Reutners' ingress to and egress from their home was totally blocked or interfered with for a period of approximately 90 days. Four delivery trucks or other vehicles which sought to use the driveway became mired in the mud. Reutner had to leave his car parked near Conway Road and traverse the intervening distance on foot. The mud was also washed onto his rock turnaround, and into his garage. Defendants' evidence was that they and their contractor attempted to rehabilitate the driveway after the construction of the manholes and sewer was completed. However, plaintiffs' evidence was that additional rock and work would be required to restore the roadway to its original good condition. The undisputed evidence was that the connection had not been made between manhole B and the pre-existing culvert until about a month before the trial, held in October, 1960, and that lacking an outlet the water gushed out of the top of manhole B and flowed across the roadway easement, rendering it impassable. The Reutners also introduced evidence that the excavation for manhole B had not been back-filled, which prevented them from driving on the roadway easement at that point, and that the cover of manhole A protruded above the surface of the roadway.
The transcript reveals that by and with the consent of both counsel, and accompanied by them, the court during the course of the trial visited and inspected the properties involved for the purpose, as stated by the court, '* * * to better acquaint the Court with the exact location of the property and the conditions as they exist at the present time.'
After making certain findings of fact and conclusions of law the court decreed:
'WHEREFORE, the premises considered, the Court doth order, adjudge and decree:
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