Young v. Telephone Co.
| Decision Date | 18 February 1928 |
| Docket Number | No. 26382.,26382. |
| Citation | 3 S.W.2d 381 |
| Parties | ALBERT YOUNG, ALBERT R. STROTHER and PIERRE R. PORTER, Executors of Estate of FRANK TITUS, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY and KANSAS CITY TELEPHONE COMPANY, Respondents. |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. — Hon. James H. Austin, Judge.
AFFIRMED.
Albert Strother and Pierre R. Porter for appellants.
(1) Of the seven grounds for demurrer to a petition allowed in our courts by statute (Sec. 1226, R.S. 1919), but one of such grounds is presented by the two demurrers filed in this cause, viz., that the petition does not state facts sufficient to constitute a cause of action; and this defect must, by statute, appear upon the face of the petition so attacked. But when the court below sustained the demurrers herein it failed to adjudge as true either or any of the allegations of demurrants. Both law and justice require that litigants be informed by the court of the ground of its determination and decision. But the court by inference only appears to hold that the facts set forth and stated in complainants' petition herein do not, by the liberal construction required in our law and practice, constitute or disclose any liability of defendants or any of them to the complainants; though the Home Telephone Company and the Missouri & Kansas Telephone Company, also defendants, do not join in any of the grounds of criticism made by their co-defendants regarding the petition in this cause. Under the statute (Sec. 2366, R.S. 1909, now Sec. 1797, R.S. 1919), such corporations are forbidden to erect poles so near buildings as materially to inconvenience the owner in the use thereof. These powers of eminent domain, meaning the Supreme Power, pertain to sovereignty alone, and in all respects are beyond the powers of the citizen and their exercise strictly construed against a claimant. The corporations claim privileges of deputized sovereign power regarding the ownership of lands and the uses thereof. Sec. 3327, R.S. 1909 (now Sec. 10133, R.S. 1919); Sec. 2360, R.S. 1909 (now Sec. 1791, R.S. 1919); State v. Graves, 130 Mo. App. 138; American Co. v. Railway, 202 Mo. 656; National Refrigerator Co. v. Light Co., 288 Mo. 312. (2) At an early day it was held by this court that a final adjudication upon the facts complained of and stated by complainants as their cause of action and basis for a suit, cannot be invoked by demurrer. This rule has been maintained by the courts uniformly to the present day. Kelley v. Hurt, 61 Mo. 463; Beatty Mfg. Co. v. Galardy, 166 Mo. 142; Northrup v. Miss. Valley Co., 47 Mo. 443; Musser v. Adler, 86 Mo. 449. (3) In all the states having codes of pleading, all forms as to distinction of actions are abolished, both in law and in equity. Bliss on Code Pleading (3 Ed.) secs. 4, 5, 280; Boone on Code Pleading, secs. 41, 47; Macton v. Catterton, 290 Mo. 185; Spalding v. Edison, 122 Mo. App. 68; St. Louis Agr. Assn. v. Delano, 108 Mo. 217; Glennon v. Priest, 48 Fed. 19; Titus v. Tolle, 290 Mo. 175; Pacific Co. v. Mo. Bridge Co., 286 Mo. 112. (4) The plea of res judicata, set out in a demurrer, is a speaking demurrer and bad. Bennett v. Lehman, 292 Mo. 493; Baldridge v. Ryan, 260 S.W. 536. (5) The facts, as stated in plaintiffs' petition in this action, are admitted as true by demurrants, though not as to pleaders' conclusions. Harbern v. Tyler, 281 Mo. 397. (6) The action of trespass as for a tort is not maintainable in the present case or under the facts stated in the petition herein. Thompson v. Granite Co., 203 S.W. 497. (7) An action of ejectment is not permissible and will not lie by complainants against defendants exercising the rights of eminent domain conferred upon them by statute. Improvement Co. v. Railroad, 255 Mo. 519; Davis v. Lee, 239 S.W. 823; Scarritt v. Railroad, 127 Mo. 298. (8) That plaintiffs, having sustained a wrong at hands of defendant, may waive the tort and sue in assumpsit is established law in Missouri. Cowan v. Young, 282 Mo. 36. (9). Testing the facts stated in the petition by the law there clearly appears therein violation by defendants of rights secured to complainants by the Constitution of Missouri and of the United States set forth in Article V of the Amendments thereof, forbidding that any person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation. Southwest Mo. Light Co. v. Schenrick, 174 Mo. 235. The facts in this cause show dispossession of complainants' property without due process of law forbidden by Section 30, Article II, Missouri Constitution. Steamship Co. v. Emigration Com., 131 U.S. 39; Muskrat v. United States, 219 U.S. 361. The actions of the defendants in persisting in the maintenance of use over complainants' property, upon and after notice to surrender such maintenance, constitute violation of the law and deprivations of personal rights, as set forth in Sections 20 and 21, Article II, of the Constitution of Missouri, by defendants' failure and refusal to obey the same by ascertainment and payment of statutory compensation by defendants. State ex rel. Penrose v. McKelvey, 256 S.W. 474; Bridge Co. v. Stone, 174 Mo. 1; McGrew v. Paving Co., 247 Mo. 549; Perry Pipeline Co. v. Shipp, 276 S.W. 647. (10) The averments of fact admitted herein by demurrants are conclusive against them, as shown by the following authorities: Pacific Lime Co. v. Bridge Co., 286 Mo. 112; Bennett v. Lehman, 292 Mo. 477; Baldridge v. Ryan, 260 S.W. 536. (11) It is manifest that complainants, by their statements in their petition, are without adequate remedy at law against the defendants, to prevent the recurrence or the continuance of defendants' malfeasance towards them. Cole County v. Augney, 12 Mo. 132; Western Union Tel. Co. v. Guernsey, 46 Mo. App. 144. Due process of law requires full obedience to the sanctions of authorities herein cited, preservative of the citizen's rights, and is indispensable to sustain the relations of the defendants to the complainants herein as herein stated and admitted. Bank v. Kercheval, 65 Mo. 682; Turner v. Stewart, 78 Mo. 482; Towne v. Bowers, 81 Mo. 495; State ex rel. v. Purl, 228 Mo. 22; Ex parte Lucas, 160 Mo. 160; St. Louis Tel. Co. v. Western Union Co., 148 U.S. 98; Randolph on Eminent Domain, 401, 416.
Battle McCardle for respondent Southwestern Bell Telephone Company; Jos. W. Jamison and D.E. Palmer of counsel; L.E. Durham, Henry S. Conrad and Hale Houts for respondent Kansas City Telephone Company.
(1) Appellants possessed adequate remedies at law. By ejectment. But by acquiescence appellants forfeited their right to maintain ejectment. Snyder v. Railroad Co., 112 Mo. 527; Webster v. Railroad Co., 116 Mo. 114; Rivard v. Ry. Co., 257 Mo. 171; Improvement Co. v. Ry. Co., 255 Mo. 519. By an action for the value of the land taken, and damages to the remainder. Doyle v. Ry. Co., 113 Mo. 280; Hickman v. Kansas City, 120 Mo. 110. But by laches appellants permitted this action to be barred by the Statute of Limitations. Secs. 1316, 1317, R.S. 1919. (2) If adequate legal remedies have become barred appellants, under the averments of the petition, have lost any right to proceed in equity. (3) The petition did not state a cause of action. Appellants never had a cause of action in equity.
This action was commenced in the Circuit Court of Jackson County on July 5, 1922. The original plaintiffs were Albert Young and Frank Titus. To avoid confusion, we will refer to them in this opinion as plaintiffs. In addition to Southwestern Bell Telephone Company and Kansas City Telephone Company, who are respondents in this court, the Home Telephone Company and the Missouri & Kansas Telephone Company were named as defendants below. Respondents Southwestern Bell Telephone Company and Kansas City Telephone Company appeared in the circuit court and filed separate demurrers. No service of summons was obtained upon Home Telephone Company or Missouri & Kansas Telephone Company and neither of said companies entered its appearance in the court below. The separate demurrers of respondents were sustained by the trial court. Plaintiffs refused to plead over and the trial court dismissed their petition. Thereupon an appeal was granted to this court. Upon suggestion of the death of appellant, Frank Titus, since the appeal was granted in the circuit court, the cause has been revived here in the name of his executors, Strother and Porter, who have been made parties appellant and have entered their appearance in this court.
The facts gleaned from the petition are that plaintiffs owned a tract of land in Clay County abutting the Kansas City-Liberty public highway. During the year 1908 defendants Home Telephone Company and Missouri & Kansas Telephone Company, without permission from plaintiffs, entered upon the said premises of plaintiffs and erected thereon a telephone line, including poles, wires, etc., without condemning the same or compensating plaintiffs therefor in any manner. All this is alleged to have been to the great profit of said defendants and their successors, Southwestern Bell Telephone Company and Kansas City Telephone Company (respondents), and to the damage of plaintiffs in the sum of $10,000.
It is then alleged that "defendants the Home Telephone Company and the Missouri & Kansas Telephone Company at the outset of their user of complainants' property by acquiescence therein of complainant owners as aforesaid and by operation of law became licensees of said complainants during and about the year 1908 as to the user herein set forth of complainants' property as stated herein and that said defendants the Kansas City Telephone Company and the Southwestern Bell Telephone Company jointly and severally became successors in estate or partners in statutory telephone privileges with said Missouri & Kansas Telephone Company and Home Telephone Company with...
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