Tate v. State Highway Com'n

• Citation: 49 S.W.2d 282,226 Mo.App. 1216
• Parties: JOSEPH T. TATE, RESPONDENT, v. STATE HIGHWAY COMMISSION OF MISSOURI, APPELLANT
• Decision Date: 02 May 1932
• Court: Kansas Court of Appeals

49 S.W.2d 282

226 Mo.App. 1216

JOSEPH T. TATE, RESPONDENT, v. STATE HIGHWAY COMMISSION OF MISSOURI, APPELLANT

Court of Appeals of Missouri, Kansas City

May 2, 1932

Appeal from the Circuit Court of Cole County.--Hon. Henry J Westhues, Judge.

REVERSED.

Judgment reversed.

James Booth for respondent.

John W Mather and Jean Paul Bradshaw for appellant.

OPINION

BLAND, J.

This is an action for damages brought on account of the appropriation of certain land, in respect to which plaintiff was a tenant at will, by the State Highway Commission, for a public highway. There was a verdict and judgment in favor of plaintiff in the sum of $ 500 and defendant has appealed.

The sole point raised by the defendant is that the petition fails to state a cause of action. There was no demurrer to the petition in the trial court, but of course, the point that the petition does not state a cause of action may be raised at any time. [Strauss v. St. Louis Transit Co., 102 Mo.App 644, 648, 77 S.W. 156.]

The petition alleges that the plaintiff was in the peaceful possession of certain lands in Gasconade county as a tenant at will:

"That at all of said times there was situated on said real estate a valuable egg-shaped flint clay mine, 100 feet across from east to west and seventy-five feet across from north to south.

"That said clay consisted of more than ten thousand tons of highly valuable quality and extended to a depth of more than fifty-two feet below the surface.

"That at all of said times plaintiff was engaged in the operation mining, removing and selling said clay from said mine as such tenant at will and with the knowledge and consent of said L. M. Nicks, E. E. Nicks, Eunice Nicks and Mrs. E. E. Nicks (the owners), under a contract by which plaintiff was to pay them a royalty of eight cents per ton for all said fire clay removed from said premises by plaintiff. That included in plaintiff's said possession was the said mine and additional ground used by plaintiff necessary roadway to and from said mine and lands used for erecting and maintaining necessary hoists and apparatus to be used in the proper conduct of said mine.

"That on the day of October, 1929, defendant State Highway Commission of Missouri, by its agents, servants and contractor, defendant Gaines Brothers Company, wrongfully, against the will and without the consent of plaintiff entered upon said real estate and converted to their own use a strip of ground eighty feet wide running in an easterly and westerly course across said land and within six feet of said mine and are now engaged in building and constructing and will build and construct a permanent public, state highway along and on said strip about five feet above the natural grade of said land.

"That by said strip said defendants take and appropriate the ground so used by plaintiff for a necessary roadway to and from said mine, the land so used by plaintiff for depositing refuse from said mine and the lands so used by plaintiff for necessary apparatus and hoists to be used by plaintiff as aforesaid.

"That as a direct result of said wrongful acts of defendants the walls of said mine have been and will be caused to crumble and cave in, and his ability to operate and conduct said mine has been greatly curtailed and impaired.

"That defendants so entered upon said real estate and converted said strip to use for a public purpose, without just compensation and without any compensation at all to plaintiff.

"That by said wrongful acts of defendants plaintiff has been prevented and in the future will be prevented from mining, removing and selling said clay from said land and that if he had not been so prevented he would have realized a profit of three thousand dollars.

"That by reason of the premises plaintiff has been damaged in the sum of three thousand dollars.

"Wherefore the premises considered, plaintiff prays judgment against defendants for the said sum of three thousand dollars with costs, and that said defendants their agents and servants be restrained and enjoined from building and constructing said highway on said strip and from maintaining said highway thereon until plaintiff has been paid just compensation for the taking and appropriation of said property."

It is insisted that plaintiff, being a tenant merely at will, did not possess any interest in the land entitling him to sue under the provisions of section 21, Article 2 of the Constitution of this State, providing that private property shall not be taken or damaged for public use without just compensation. It is claimed that the interest of a tenant at will is not property, within the meaning of the constitutional provision.

In order to intelligently pass upon this question it is necessary to inquire into the nature of a tenancy at will. Tiffany on Real Property, Vol. 1, sec. 55, p. 140, says:

"The interest of the tenant is not, properly speaking, an estate, but is a mere scintilla of interest, and his relation to the landlord is merely personal. Consequently, the interest of the latter is not a reversion, and no tenure was considered to exist in the case of such a tenancy, even at common law. For the same reason, the tenant cannot assign his interest."

A tenancy at will is terminated by a conveyance or by written lease by the lessor to a third person and is likewise determined by an alienation of the lessee to a third person. [See 1 Tiffany on Real Property, sec. 56, p. 141; 1 Washburn on Real Property, sec. 765, p. 478, sec. 767, p. 479 (6 Ed.); Reckhow v. Schanck, 43 N.Y. 448; Clarke v. Thatcher, 9 Mo.App. 436; Corby v. McSpadden, 63 Mo.App. 648, 652, 653.]

As this action is not predicated upon the wrong or trespass upon the land, but upon a constitutional right to compensation for the interference to the use thereof, it is governed by the law relative to condemnations under the provisions of the Constitution aforesaid. [Webster v. K. C. & So. Ry. Co., 116 Mo. 114, 118; Hickman v. K. C., 120 Mo. 110, 124, 25 S.W. 225; State ex rel. v. McKelvey, 301 Mo. 1, 256 S.W. 474.]

It is stated that in order for one to be entitled to damages under the condemnation law: "The injury complained of must also be actual, susceptible of proof and capable of being approximately measured, and must not be speculative, remote, prospective or contingent." [City of Winchester v. Ring, 312 Ill. 544, 552, 144 N.E. 333.] [See, also, Goldfield Consolidated Water Co. v. P. S. Comm., 236 F. 979; Groenendyk v. Fowler, 215 N.W. 718; Lund v. Salt Lake Co., 58 Utah 546, 200 P. 510.] When the condemnor appropriates the fee he is substituted, in a sense, for the landlord and, therefore, it is held that it will be considered that the property has been conveyed by the landlord. As before stated, a conveyance by the landlord terminates a tenancy at will. "The termination of the landlord's estate, even though by involuntary alienation under eminent domain proceedings, terminates a tenancy at will." [35 C. J., p. 1128; Lyons v. Rd., 209 Pa. 550, 552.] Though not disclosed in the petition the evidence shows that the commission secured the right of way in question from the owners. However, we are not basing our decision on this circumstance. In the following cases it has been held that a tenant at will had no such interest in the land as is subject to condemnation: Lyons v. Rd., supra; Can. P. Ry. Co. v. Mlg. & Elev. Co., 15 Annotated Cases 709, Ont.

Some light can be thrown upon the question of whether a tenant at will is the owner of property, within the meaning of our constitutional provision requiring that it be condemned if taken for public use, by inquiring, as to what part of the "just compensation," awarded should be allotted to a tenant at will. It is quite apparent from its nature that a tenancy at will is incapable of being the subject-matter of a sale. Therefore, it is questionable whether it has a market value. In the case of Railroad v. Knapp-Stout & Co., 160 Mo. 396, 412 (quoted with approval in the case of St. Louis v. Railroad, 266 Mo. 694, 704, which involved the condemnation of a leasehold interest), the Supreme Court said:

"It is the settled law of this court that the measure of compensation and damages in cases in which only a part of a tract is condemned, as in the case at bar, is the market value of the land taken for the right of way, and the damages to the remainder by reason of the railroad running through it, less any benefits that are peculiar to the tract of land arising from the running of the road through it. [Bridge Co. v. Ring, 58 Mo. 491; Railroad v. Waldo, 70 Mo. 629; Railroad v. Story, 96 Mo. 611; Railroad v. Baker, 102 Mo. 553.]

"Injury to business, loss of profits, inconvenience to the owner, damages to personal property or the expense of removing it, are not to be estimated as distinct elements of damages." [Italics ours.]

In 10 R. C. L., p. 137, it is stated:

"In determining the amount of damages to a lessee, the injury...