St. Louis Smelting & Refining Co. v. Hoban

• Decision Date: 08 March 1948
• Docket Number: 40312
• Parties: St. Louis Smelting and Refining Company, a Corporation, v. James J. Hoban and Joseph A. Lambert, d.b.a. Doing Business Under the Firm Name and Style of Midwest Service Company, Appellants
• Court: Missouri Supreme Court

209 S.W.2d 119

357 Mo. 436

St. Louis Smelting and Refining Company, a Corporation, v. James J. Hoban and Joseph A. Lambert, d.b.a. Doing Business Under the Firm Name and Style of Midwest Service Company, Appellants

No. 40312

Supreme Court of Missouri

March 8, 1948

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Affirmed (with reduction of judgment).

Wlbur B. Jones, George E. Fee and Carroll J. Donohue for appellants; Salkey & Jones and Dolle O'Donnell & Cash of counsel.

(1) Denial of a writ of prohibition does not adjudicate jurisdictional questions involved so as to preclude consideration of the same questions on direct appeal following a later trial on the merits. Dahlberg v Fisse, 328 Mo. 213, 40 S.W.2d 606; State ex rel. Natl. Lead Co. v. Smith, 134 S.W.2d 1061. (2) An injunction will not issue to prevent a trespass on foreign real estate nor to eject a holdover tenant from the possession of land. Livingston v. Jefferson, 15 Fed. Cases 660, 1 Brock 209; 113 A.L.R. 940 at 941 of Annotation; Ophir Silver Mining Co. v. Superior Court, 147 Cal. 467; Black v. Jackson, 177 U.S. 349, 44 L.Ed. 801; Thomas v. Hukill, 131 Pa. 298; Steele v. Allison, 73 S.W.2d 842; Eastern Farm Products v. Wampsville Dairymen's Corp., 117 N.Y.S. (2d) 954; Stevens v. Meyers, 73 S.W.2d 334. (3) Plaintiff has an adequate remedy at law in replevin or for conversion. An action in equity for an injunction to determine title to the slag pile or for an accounting for the value of the slag taken does not lie. The trial court erred in refusing to grant defendants' demand for a jury trial and in issuing an injunction and in awarding an accounting. United States v. Bitter Root Development Co., 200 U.S. 451, 50 L.Ed. 550; Worthington v. Moon, 53 N.J.Eq. 46; Young v. Telephone Co., 318 Mo. 1214; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Real Estate Inv. Co. v. Winn, 233 Mo.App. 26, 116 S.W.2d 550; Latshaw v. Simpson, 162 S.W.2d 635; Kistler v. Weaver, 135 N.C. 388; Jones v. MacKenzie, 122 F. 390; Blum v. Frost, 234 Mo.App. 695, 116 S.W.2d 541; McLachlin v. Barker, 64 Mo.App. 511; Wilkinson v. Misner, 158 Mo.App. 551; Allen v. McMonagle, 77 Mo. 478; Peoples State Savings Bank v. Railroad, 158 Mo.App. 519, 138 S.W. 915; Leidy v. Carson, 90 S.W. 754, 115 Mo.App. 1; Hill v. Brothers, 217 S.W. 581; Steele v. Allison, 73 S.W.2d 842; Mexico Refractories Co. v. Pignet's Estate, 161 S.W.2d 417; Walker v. Norris, 145 S.W.2d 972. (4) Under the Illinois law of landlord and tenant defendants became hold-over tenants for an additional term of one year and were rightfully in possession of the Illinois real estate. Goldsborough v. Gable, 140 Ill. 269; Eppstein v. Kuhn, 225 Ill. 115; Siegel v. Davis, 65 N.E.2d 136. (5) As a matter of law defendants had title to the seven thousand tons of slag severed from the slag pile prior to January 29, 1946. Worthington v. Moon, 53 N.J.Eq. 46. (6) Plaintiff by its conduct expressly assented to and ratified the appropriation of the slag shipped to Western Rock Wool Corporation and therefore waived any alleged conversion. Kegan v. Park Bank, 8 S.W.2d 858; Nobel v. I.C. Railroad Co., 111 Ill. 437. (7) Under the doctrine of clean hands and the doctrine that he who seeks equity must do equity plaintiff's complaint must be dismissed. Keystone Co. v. Excavator Co., 290 U.S. 240, 78 L.Ed. 293; Baumhoff v. Grueninger, 178 S.W. 102, L.R.A. 1916A, 779. (8) Under the law of Illinois there is no distinction made in the assessment of compensatory damages between an innocent and a wilful trespasser. Shell Oil Co. v. Manley Oil Corp., 50 F.Supp. 21; 7 A.L.R. 930. (9) The rule of damages in Illinois is compensation to the owner measured by the value of the property converted at the first movement of conversion. The owner is not entitled to the value of the labor expended upon the property after the first moment of conversion. McLean County Coal Co. v. Lang, 81 Ill. 359; Robertson v. Jones, 71 Ill. 405; Illinois & St. L.R. & Coal Co. v. Ogle, 82 Ill. 627, Id., 92 Ill. 353; McLean County Coal Co. v. Lennon, 91 Ill. 561; Thomas Pressed Brick Co. v. Herter, 60 Ill.App. 58; Taylor v. Ford Motor Co., 2 F.2d 473. (10) Under the rule of damages in Illinois the maximum recovery of the plaintiff for any portion of the slag which may have been converted, assuming this court finds on the record that a conversion did occur, would be the purchase price less the cost of processing the slag. [See authorities under (9) above.]

Howard Elliott and Aubrey B. Hamilton for respondent; Boyle, Priest & Elliott and Martin F. Oehmke of counsel.

(1) Equity will enjoin the willful and deliberate action of a continuous trespasser, who, without shadow of right, spoliates real estate by repeatedly carrying away part and parcel of the land itself to the injury of the hereditaments, and converts these separated portions to his own use. Echelkamp v. Schrader, 45 Mo. 505; Sills v. Goodyear, 80 Mo.App. 128; Nokol Co. v. Becker, 318 Mo. 292; Palmer v. Crisle, 92 Mo.App. 510; Bryant v. West, 219 S.W. 355; Metropolitan Land Co. v. Manning, 98 Mo.App. 248; Glencoe Lime and Cement Co. v. St. Louis, 341 Mo. 689; State ex rel. Life Ins. Co. v. McElhinney, 232 Mo.App. 107; Blum, Admr., v. Frost, 234 Mo.App. 695. (2) Equity acts in personam and jurisdiction of the parties gives it jurisdiction of the subject matter no matter where the subject matter may be situated. That the slag in the case at bar is situate in Illinois is of no moment. 32 C.J., Injunction, sec. 455; State ex rel. Delmar Jockey Club v. Zachritz, 166 Mo. 307; New Jersey v. New York City, 283 U.S. 473; Mandley v. Backer, 121 F.2d 875; Phelps v. McDonald, 99 U.S. 298; Hansen v. Duvall, 333 Mo. 59. (3) Plaintiff's suit is not to try and determine title to the land in Illinois, which is concededly plaintiff's, and injunctive relief is therefore proper. Mexico Refractories v. Roberts, 167 S.W.2d 660; Ingram v. Great Lake Pipe Line Co., 153 S.W.2d 547. (4) Under the circumstances at bar, plaintiff has no adequate remedy at law whatever, either by action for replevin, for conversion, or otherwise, and is therefore entitled to the equitable relief of injunction, accounting and damages. (5) Defendants acquiesced in the sixty day extension of the original license period which plaintiff offered as an accomodation. At the end of the extended period, defendants became deliberate trespassers on plaintiff's property and did not become hold-over tenants. 1 Addison on Contracts (8th Ed.), p. 54; Bockman v. Davis, 172 Ill.App. 505; Sheriff v. Kromer, 232 Ill.App. 589; Griffin v. Knisely, 75 Ill. 411; Higgins v. Haligan, 46 Ill. 173; Rader v. Hoffman, 125 Ill.App. 554. (6) Reliance upon the Illinois law relating to hold-over tenants must be affirmatively pleaded. It was not so pleaded at bar and is therefore unavailable as a defense. McDonald v. Life Assn., 154 Mo. 618. (7) Plaintiff did not consent to shipments of slag after January 29, 1946, by defendants to Western Rock Wool Company or to anyone else. Such shipments by defendants constituted deliberate and repeated conversions of plaintiff's property and were made in willful disregard of plaintiff's rights. (8) The record clearly shows that plaintiff made no representations to the defendants on which the defendants could rely to their detriment. (9) Defendants have willfully, wantonly and recklessly converted plaintiff's property and slag from off its premises at Collinsville, Illinois, and should be compelled to account in full for the purchase price of the slag at which they sold it to the respective consignees. Watkins v. Siler Logging Co., 116 P.2d 315; Superior Oil Co. v. Harsh, 50 F.Supp. 358; Shell Oil Co. v. Manley Oil Corp., 50 F.Supp. 21. (10) The evidence in the record, and the controlling authorities herein cited, point conclusively to the correctness in all particulars of the decree and judgment entered by the trial court. Sec. 1683, R.S. 1939; Turner v. Steward, 78 Mo. 480; United States v. Denver & Rio Grande R. Co., 190 F. 825; Erhardt v. Boaro, 113 U.S. 537.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action in equity for injunction, accounting and other relief. The relief prayed was granted and judgment was entered for plaintiff in the sum of $ 16,184.27. Defendants have appealed.

On November 30, 1940, the respondent and appellants entered into a written agreement. The licensor (respondent), in consideration of certain "royalty payments" and the covenants of the licensees (appellants) as therein set out did "license and let unto licensees so much of the surface of" 51 acres, more or less, of described real estate in Madison County, Illinois, as might be required by licensees, for the purpose of the agreement. All subsurface and surface rights not expressly granted were reserved. The license was to continue for five years "from the date of the agreement." Licensees were "to have and to hold such premises for the purpose of crushing, sizing and otherwise preparing for market, and removing from the licensed premises, blast furnace slag on the surface of said property. Licensees agreed "to pay licensor as rent or royalty hereunder a sum equivalent to ten cents (10c) per ton of two thousand (2000) pounds of blast furnace slag removed and licensees shall pay to licensor such royalty on or before the 10th day of the month following removal thereof." Licensees agreed to keep accurate record of the slag removed. Weight, for the purpose of determining royalty, was to be based on shipments, railroad weights and other scales satisfactory to licensor. A minimum annual "rent or royalty" was provided. Licensor made "no representation as to the quantity or quality of blast furnace slag upon said premises." It was further provided that ...