Young v. Home Telephone Co.

• Decision Date: 28 January 1918
• Docket Number: No. 12720.,12720.
• Citation: 201 S.W. 635
• Parties: YOUNG et al. v. HOME TELEPHONE CO. et al.
• Court: Missouri Court of Appeals

201 S.W. 635

YOUNG et al. v. HOME TELEPHONE CO. et al.

No. 12720.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Suit by Albert Young and F. Titus against the Home Telephone Company and the Missouri & Kansas Telephone Company. From judgment sustaining demurrers to the petition, plaintiffs appeal. Affirmed.

F. Titus, of Kansas City, for appellants. Battle McCardle, J. W. Gleed, and D. E. Palmer, all of Kansas City, for respondents.

TRIMBLE, J.

Plaintiffs, on February 6, 1917, brought suit against the above-named telephone companies alleging that the defendants were telephone corporations operating and maintaining telephone lines for hire in the state of Missouri; that plaintiffs were the owners of a certain tract of land, describing it; that defendants without lawful right entered upon said land and erected thereon sundry constructions, namely, seven large wooden poles from 30 to 40 feet in height, with crossbars, insulators, braces, and numerous wires thereon, for the transmission of defendants' telephone messages and business; that said use and occupation of said land and the frequent entering thereon for repairs of said constructions and uses thereof by defendants have existed since January 1, 1013, to the present time and still continue; that neither of said corporate defendants, nor any person or persons through whom they exercise the use and occupation complained of, has ever lawfully obtained any right whatever warranting their entry upon, use and occupation of, said land under the law of eminent domain regarding the condemnation of land or the use thereof or right to enter thereon; that plaintiff, on or about April 9, 1913, duly served upon said defendants, and each of them, a certain written notice, as follows:

"The undersigned owners of a certain tract of land in the county of Clay and state of Missouri, being part of the southeast quarter of section twenty-eight, township 51, range 32, in said county, said tract being bordered by Thornton's Mill creek on the north and east and by the public highway between Kansas City and the city of Liberty on the south, do hereby beg to notify you that sundry large poles bearing telephone wires have without the knowledge or consent of the undersigned recently been placed by you jointly and severally and by your respective servants and agents upon said property illegally and continue illegally used thereon by you and each of you. Both your said corporations are accordingly hereby notified and requested to forthwith remove from said tract of land all and singular said poles supporting such wires and all the wires and appurtenances thereto, and upon your neglect, failure or omission to comply with this request you and each of you jointly and severally will be and are hereby charged by the undersigned by reason of your expropriation aforesaid of said real property, the sum of five dollars per month for each of such poles during the continuance thereof upon said lands from the date of their emplacements in and upon said property, and until such obstructions be wholly removed therefrom and your continued permitting the said poles, wire, etc., to remain on said lands following the receipt hereof will be taken and assumed by the undersigned as an acceptance by you and each of you of the aforesaid charge and of your liability and willingness to pay the same during each month by way of compensation for such trespass, intrusion, use and illegal occupation by you the corporations aforesaid.

                    "Very truly yours
                                     "[Signed] Frank Titus
                                     "[Signed] Albert Young
                

"Kansas City, Mo., April 9, 1913."

Plaintiffs further alleged that said defendants assented, agreed to, and acquiesced on their part in the obligation named in and arising from the foregoing instrument so delivered to and received by them, but have neglected and entirely failed to remove said poles, wires, etc., and the same, together with the replacements, from time to time made, yet exist and continue, and an obligation, contractual on the part of defendants and each of them to pay plaintiffs the aforesaid charge of $5 per month per pole during the continuance thereof upon plaintiff's land, has arisen and exists by force of law, by reason, among other facts, of the continued use and occupation of said land and premises as set forth, following said written notification and up to the commencement of this action; that by reason of which facts, as hereinbefore stated, there is now due plaintiffs the sum of $225 for each of said poles for a period of 45 months prior to the filing of the petition aggregating $1,575, for which sum judgment was prayed. Defendants demurred to the petition, and their demurrers were sustained. The plaintiffs, declining to plead further, stood upon their petition, and appealed.

It is manifest that the petition discloses that defendants' original entry upon and appropriation of the land was a trespass. If the petition, under section 1794, R. S. Mo. 1909, which requires only "a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition," can be treated as suing for damages for the trespass, then there is no cause of action stated, since there are no allegations setting forth the character and amount of damages recoverable for the trespass. In the trespasses enumerated in sections 5448 and 5449, R. S. Mo. 1909, the character and amount of the recovery is prescribed. In all other kinds of trespass, the recovery would be either the value of the thing appropriated, removed, or destroyed, or a sum equal to the damage done. The trespass alleged herein is not such as are enumerated in sections 5448 and 5449, and, as stated, the petition makes no allegations as to damages except on the basis of a monthly sum fixed and agreed upon in the way set forth therein.

Assuming that the suit is not one for the use and occupation of land, but that it is, as plaintiffs claim, a suit based upon a contract implied by law from the giving of the notice herein set out and the silent receipt of same by defendant with continued use of said land, the question still remains, Does the petition state a cause of action? There is no doubt but that, in Missouri, a suit "for use and occupation," based merely upon use and occupation, cannot be maintained unless the relation of landlord and tenant, express or implied, exists between the parties. Edmonson v. Kite, 43 Mo. 176; McLaughlin v. Dunn, 45 Mo. App. 645; Bracht v. Johnson, 187 Mo. App. 220, 173 S. W. 692. In some states a suit can be maintained having no other basis than the use...