Schmidt v. City of Tipton

• Decision Date: 06 January 1936
• Docket Number: No. 18451.,18451.
• Citation: 89 S.W.2d 569
• Parties: SCHMIDT et al. v. CITY OF TIPTON et al.
• Court: Missouri Court of Appeals

89 S.W.2d 569

SCHMIDT et al. v. CITY OF TIPTON et al.

No. 18451.

Kansas City Court of Appeals. Missouri.

January 6, 1936.

Appeal from Circuit Court, Moniteau County; Nike G. Sevier, Judge.

"Not to be published in State Reports."

Action by William J. Schmidt and another against the City of Tipton and others. Judgment for defendants, and plaintiffs appeal.

Reversed and remanded.

D. E. Kennedy and Frank W. Hayes, all of Sedalia, for appellants.

Frank J. Quigley, of Tipton, and J. B. Gallagher, of California, Mo., for respondents.

BLAND, Judge.

This is a suit for damages growing out of a trespass to, or an appropriation of an easement in real estate. At the conclusion of plaintiff's evidence the court instructed the jury to find for the defendants, resulting in a verdict and judgment in favor of them. Plaintiffs have appealed.

A large portion of the evidence by which plaintiffs sought to establish their cause of action was ruled out by the court. Therefore, it is necessary for us, in order to make any intelligent statement of the facts, to set forth not only those facts that were actually proved but those of which there was offer of proof.

Such a statement of facts show that on November 27, 1933, defendant, city of Tipton, entered into a contract with the defendant, Hartman Clark Brothers & Company, for the construction of a disposal sewer plant. There is no evidence as to when the actual construction of the plant commenced but the petition alleges that "on or about the 10th day of October, 1934," defendants entered upon the land of the plaintiffs "for the purpose of constructing" a sewer across their property. The evidence shows that the work of construction was under the superintendence of the defendant, Thompson, employed for that purpose by the defendant, Hartman Clark Brothers & Company.

The facts further show that on the 23rd day of June, 1934, the "Heinen Heirs" (then being the owners of the land in question), conveyed, in writing, to the city of Tipton, an easement over it, or a "perpetual right of way for Trunk Sewer Line along and through the following described tract of land, in the City of Tipton, Mo." (Here follows a description of the land in question.) "Said sewer line to run as close to the fence as it is possible to pay (lay) it, along the south side of said fence, from the point of beginning to the point of ending." The instrument conveying the easement was duly recorded on October 11, 1934.

On October 31, 1934, the Heinen Heirs entered into a written contract selling the land in controversy (approximately one acre and a half), to the plaintiffs. The contract recites that the land was sold "for the price and sum of Twenty-five Hundred Dollars, Four Hundred Dollars of said purchase price being paid down upon the signing of this contract, the balance to be paid when the abstract and deeds are furnished." The contract also recites that the property was to be conveyed "subject to the easement given to the city of Tipton, Missouri to lay a sewer line across the same."

It further provided: "It is mutually agreed that the rent is paid up to Dec. 4, 1934, and from and after that date the party of the second part (plaintiffs) shall be entitled to the rent. It is further agreed that the party of the second part has this day insured the house for $1,500.00 in the name of the parties of the first part, the insurance to be transferred to party of the second part when deeds are delivered, and in case of fire, the insurance collected to go to parties of the second part."

The facts further show that the Heinen Heirs delivered possession to the plaintiffs of the land in question at the time of the execution of the contract of sale, on October 31, 1934.

The property was duly conveyed by the Heinen Heirs to the plaintiffs by two deeds, one executed on the 13th day of November, 1934, and the other on the 24th day of November of that year. Said deeds recite the receipt of the purchase price of said land, and state that they were "made subject to a right of way or easement to the City of Tipton, to lay a sewer line across said tract herein from east to west, and is also subject to right of Missouri Utilities Company to set poles across and on said property." (Italics ours.)

The evidence shows that instead of the sewer being constructed as close to the fence as it was possible to lay it, as provided by the terms of the easement given to the city of Tipton by the Heinen Heirs, under the instrument dated June 23, 1934, the center of the excavation at the east end of the property was dug 7 feet from the fence and near the center 4 feet 6 inches therefrom and at the extreme west end of the property 5 feet 9 inches from the fence. The excavation was dug 28 inches wide and in the neighborhood of 4 feet deep and the sewer was laid in this excavation. Plaintiffs sought to prove that they sustained substantial damages by reason of the fact that the sewer was constructed where it was actually laid instead of "as close to the fence as it is possible to lay it," as provided by the easement granted to the city by the Heinen Heirs, and also that it was entirely feasible to have constructed it in accordance with the terms of the easement.

Plaintiffs sought to show when the construction of the sewer on the property in question was actually commenced. The court refused the offer.

The petition does not claim compensation for the value of the easement taken but asks, apparently, for only the alleged incidental damages.

The answer admits that defendants constructed the sewer through the land in question.

It is insisted by the plaintiffs that the court erred in refusing to admit the evidence that we have detailed and in sustaining defendant's demurrer to the evidence at the close of all of the evidence. We think that this contention must be sustained.

Plaintiffs admit that they cannot maintain this action unless they had possession of the land at the time the trespass and appropriation was made, so we will decide the case on that theory without passing on the question as to whether such possession in them was necessary, under all of the circumstances.

The petition alleges that plaintiffs were the owners and in possession of the property at the time the defendants entered upon it for the purpose of constructing the sewer across the land. The time, as to when said entry upon the land took place, was described in the petition as being "on or about the 10th day of October, 1934." On October 10th, 1934, plaintiffs were not in possession of the land under their contract or otherwise, nor had the deeds been executed or delivered conveying title to them. There is sufficient in the evidence to show that plaintiffs were in possession of the land during a part of the time, at least, that the work was being performed and, as the allegations of the petition were not definite as to the time of the beginning of the work (Kerr v. Blair, 47 Tex.Civ.App. 406, 105 S.W. 548; Hackenyos v. City of St. Louis [Mo.Sup.] 203 S.W. 986), the court should have permitted plaintiffs to have shown when that event actually transpired in order to establish whether plaintiffs were in possession of the land when the original entry or appropriation of the easement for the sewer took place. If plaintiffs had possession of the land, coupled with equitable title thereto when they took possession, they may maintain this suit, as will be hereinafter shown.

The trespass in this case was permanent. "The wrongful entry and building the sewer across plaintiff's lots was the whole cause of the damage, complete and entire at that time, and for which full compensation could have been readily estimated for the whole wrong." James v. City of Kansas, 83 Mo. 567, 570. Under the circumstances no one had the right to sue for the appropriation of the easement or the incidental damages arising therefrom save the owners of the land at...