Whittom v. Alexander-Richardson Partnership, ALEXANDER-RICHARDSON

• Decision Date: 20 April 1993
• Docket Number: ALEXANDER-RICHARDSON,No. 75311
• Citation: 851 S.W.2d 504
• Parties: William F. WHITTOM, et al., Appellants, v.PARTNERSHIP, et al., Respondents.
• Court: Missouri Supreme Court

Page 504

851 S.W.2d 504

William F. WHITTOM, et al., Appellants, v. ALEXANDER-RICHARDSON PARTNERSHIP, et al., Respondents.

No. 75311.

Supreme Court of Missouri En Banc.

April 20, 1993.

James Stemmler, St. Louis, for appellants.

Leslie Broome Yoffie and Ellsworth Cundiff, Jr., St. Charles, for respondents.

COVINGTON, Judge.

This is an appeal from an action by plaintiffs to establish their right to use a roadway that crosses defendants' property, and for damages resulting from defendants' blockade of the roadway. Plaintiffs base their right to use the roadway on theories of common law dedication and prescriptive easement. Upon defendants' request the trial court ordered plaintiffs to elect between the theories at the close of the evidence. Plaintiffs submitted their case on common law dedication. The trial court entered judgment in favor of defendants. The Missouri Court of Appeals, Eastern District, affirmed. In the course of the affirmance the court of appeals suggested that the requirement to elect between two theories that are inconsistent, or repugnant, may be an "anachronism" under rules that allow pleading of claims or defenses in the alternative. It is upon the court of appeals' suggestion that this Court granted transfer to re-examine the question. After review of the law governing common law dedication and prescriptive easement, however, it is clear that this Court must decline to address the question, because there is no inconsistency in the claims for common law dedication and prescriptive easement in the case presented. Affirmed in part; reversed and remanded in part.

Plaintiffs, Whittom and others, are residents and owners of homes in Lake Village Subdivision. Defendants are owners of land adjacent to Lake Village. A roadway crosses defendants' land and provides access to Lake Village. Until 1988 plaintiffs used the roadway to gain access to their subdivision. In 1988 defendants constructed another roadway for plaintiffs' use and barricaded the roadway previously used by plaintiffs. Plaintiffs filed suit to establish their right to continue to use the original roadway.

In their five-count petition, plaintiffs requested the court to find the action to be a class action on behalf of all of the residents of the subdivision, with plaintiffs as proper representatives of the class. Plaintiffs also requested the court to declare that they had acquired a right to use the roadway by prescriptive easement or by common law dedication. In addition, plaintiffs sought damages for a prima facie tort based upon defendants' alleged intentional interference with plaintiffs' right to use the roadway, and plaintiffs requested the court to enjoin defendants from continuing that interference.

The court certified the action as a class action with plaintiffs as representatives of the class. The case was tried before the court without a jury. On defendants' requests, made at the close of the plaintiffs' case and again at the close of the entire case, the court directed the plaintiffs to elect to submit the case on only one of the plaintiffs' two theories of recovery. Noting their objection, plaintiffs elected to submit on common law dedication. The court entered judgment in defendants' favor on all counts. Plaintiffs did not request, and the trial court did not enter, findings of fact or conclusions of law.

Plaintiffs' first issue on appeal is twofold: plaintiffs contend the trial court erred in ordering them to elect between the claims of prescriptive easement and common law dedication, and, if the theories are inconsistent, inconsistent theories may be submitted to the court in a court-tried case. Plaintiffs also appeal the trial court's exclusion of evidence on the damages claim. Plaintiffs do not appeal from the trial court's judgment for defendants on the common law dedication claim.

Analysis of plaintiffs' first point on appeal commences with noting the distinction between election of remedies and election of inconsistent theories of recovery. The election of remedies doctrine, a doctrine of estoppel, originates upon the theory that "where a party has the right to pursue one of two inconsistent remedies and he makes his election, institutes suit, and prosecutes it to final judgment, he cannot thereafter pursue another and inconsistent remedy." Tooker, et al., v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 695 (1935); see also Berger v. Mercantile Trust Co., 352 S.W.2d 644, 647 (Mo.1961). The purpose of the election of remedies doctrine is to prevent double recovery for a single injury. Perez v. Boatmen's Nat'l Bank of St. Louis, 788 S.W.2d 296, 300 (Mo.App.1990). As noted by one commentator:

Thus the plaintiff whose horse has been stolen can sue the thief for damages for conversion, or he can bring replevin ... to get the horse back. But he cannot do both, for this would give him both the value of the horse and the horse itself, a form of double recovery. The election of remedies doctrine prevents this by requiring the plaintiff to choose one of the two remedies. In this abstract form, it becomes merely a legal version of the idea that one can't have his cake and eat it too.

Dan B. Dobbs, Remedies, § 1.5 at 14 (1973).

Entirely distinct from the election of remedies doctrine is the doctrine that requires a party to elect between theories of recovery that are inconsistent, even though pled together as permitted by Rule 55.10, before submitting the case to the trier of fact. Wallace v. Bounds, 369 S.W.2d 138, 141 (Mo.1963). If two counts are so inconsistent that the proof of one necessarily negates, repudiates, and disproves the other, it is error to submit the inconsistent theories. Id. at 142.

An examination of cases that involve an election of inconsistent theories of recovery indicates that the determination of when two theories are inconsistent is heavily dependent upon the facts of the case. In Crews v. Wilson, 312 Mo. 643, 281 S.W. 44 (1926), a jury instruction asked the jury to find a defendant guilty of failure to exercise ordinary care in not stopping his railway car in time to prevent striking the decedent. Another instruction asked the jury to find that the defendant drove his railway car out of control and struck the decedent. Id. 281 S.W. at 46. The theories were inconsistent because "if the car was not under control as contemplated in Instruction 7, then how could the motorman by the exercise of ordinary care have stopped the car in time to save the life of the child as contemplated in Instruction 1....?" Id.; see also Thompson v. Gipson, 277 S.W.2d 527, 531 (Mo.1955); State ex rel. Tunget v. Shain, et al., 340 Mo. 434, 101 S.W.2d 1, 3 (1936); Elliott v. Richardson, 28 S.W.2d 408, 410 (Mo.1930).

In Sanders v. Carl Berry Oil Co., 359 S.W.2d 769 (Mo.1962), this Court found a jury instruction for contributory negligence to be inconsistent because on the one hand the instruction required the jury to find that no natural or artificial light illuminated an alley in which the plaintiff slipped, while on the other hand the instruction informed the jury that the plaintiff should have seen the ice or oil that caused the plaintiff to slip. Id. at 771. For the jury to find that no light illuminated the alley would require the jury to find a fact inconsistent with the finding that plaintiff should have seen the ice or oil. The instruction " 'required the jury to find two facts which could not coexist.' " Id. at 772 (quoting Pigg v. Bridges, 352 S.W.2d 28, 31 (Mo.1961)).

In Wallace v. Bounds, this Court found that the statutory right of a personal representative of a decedent to recover for the decedent's personal injuries was inconsistent with a plaintiff's right to recover for the wrongful death of the decedent. The theories were factually inconsistent because a personal representative could recover for the decedent's personal injuries only if those injuries did not cause the decedent's death, while a claim for wrongful death would be allowed only if the injuries did cause the decedent's death. Wallace, 369 S.W.2d at 142.

Although each of the cases cited applying the doctrine of election of inconsistent theories is factually unique, there exists in them a common thread. Courts found theories inconsistent only if in all circumstances one theory disproved the other. An alleyway is either illuminated or dark; a driver either has control of his vehicle or does not; a decedent's death is either caused by his personal injuries or is not. The theories must factually disprove each other to be inconsistent and to require election.

In the present case the plaintiffs properly seek only one remedy, right, or privilege: use of the roadway. The plaintiffs pled two theories to obtain that remedy: prescriptive easement and common law dedication. ¹ An examination of the theories of common law dedication and prescriptive easement reveals that, while at times the theories may be inconsistent, the consistency or inconsistency depends upon the facts of each case as applied to the two theories.

Common law dedication awards the public the use of the land in dispute and is proven by showing: (1) that the owner, by unequivocal action, intended to dedicate the land to public use; (2) that the land dedicated was accepted by the public; and (3) that the land dedicated is used by the public. Haertlein, et al., v. Rubin, 195 S.W.2d 480, 483 (Mo.1946); Connell, et al. v. Jersey Realty & Investment Co., 352 Mo. 1122, 180 S.W.2d 49, 52 (1944). The intention of the owner to set apart land for public use is the foundation of every dedication. Connell, 180 S.W.2d at 52. The acts establishing a dedication must be unequivocal, indicating expressly or by plain implication, a purpose to create a right in the public to use the land. Id. When there is no actual intention, it is possible that an owner's actions may nevertheless evince an intention to dedicate. Id. In such circumstances, because dedication is a theory...