Opinion
No. 43153.
December 8, 1952.
Action for trespass and punitive damages for fencing a pipe line easement. Said easement did not include the right to fence, and the trespass was willful, justifying punitive damages. This was not a permanent appropriation by a public utility. The punitive damages were excessive.
1. EASEMENTS: Pipe Line Easement: Right to Fence Not Included. An easement for an oil pipe line does not include the right to fence.
2. EASEMENTS: Notice: Corporations: Pipe Line Easement: Corporation Charged with Notice of Limitations. Defendant pipe line corporation was charged with full notice that its pipe line easement did not include the right to fence, such right having been abandoned during the original condemnation proceedings.
3. TRESPASS: Damages: Wrongful Fencing: Punitive Damages Proper. It was proper to allow punitive damages for a willful trespass in fencing a pipe line easement.
4. TRESPASS: Public Utilities: Fencing Pipe Line Easement Not Permanent Appropriation. Fencing a pipe line easement was not a permanent appropriation by a public utility which would prevent an action for temporary damages resulting from a trespass.
5. DAMAGES: Trespass: Punitive Damages Excessive. $2750 punitive damages for a trespass where there was no evidence of actual malice, spite or ill will was excessive by $2250.
Appeal from Circuit Court of City of St. Louis; Hon. William B. Flynn, Judge.
AFFIRMED ( subject to remittitur).
Charles M. Spence and Harold I. Elbert for appellant; Thompson, Mitchell, Thompson Douglas of counsel.
(1) A plaintiff, to make a submissible case on punitive damages, must show the "intentional doing of a wrongful act without just cause or excuse." State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d 46; Ferguson v. Mo. Pac. Ry. Co., 177 S.W. 616; Hussey v. Ellerman, 215 S.W.2d 38; Van Sickle v. Katz Drug Store, 235 Mo. App. 952, 151 S.W.2d 489; Summers v. Keller, 152 Mo. App. 626, 133 S.W. 1180; Prueitt v. Cheltenham Quarry Co., 33 Mo. App. 18. (2) The fact that an act is unlawful is not of itself ground for an award of punitive damages. Hall v. St. Louis-S.F. Ry. Co., 224 Mo. App. 431, 28 S.W.2d 687; Patrick v. Employers Mutual Liability Co., 233 Mo. App. 251, 118 S.W.2d 116; 25 C.J.S. Damages, sec. 123c, p. 726. (3) Defendant, by condemnation proceedings, could have acquired the right to fence. Shell Pipe Line Corp. v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917. (4) The only right plaintiffs were deprived of by defendant's failure to institute condemnation proceedings was the right to have their compensation paid in advance. Mo. Constitution, 1945, Art. 1, Sec. 26; Justice v. Nesquehousing Val. R. Co., 87 Pa. 28. (5) If a corporation having the power of eminent domain appropriates property without instituting condemnation proceedings and the property owner, instead of suing for an injunction or in ejectment, elects to sue for damages, the measure of damages is the same as in condemnation proceedings — necessarily excluding, of course, any element of punitive damages. McReynolds v. K.C. S. Ry. Co., 110 Mo. 484, 19 S.W. 824; Cochran v. M.K. T. Ry. Co., 94 Mo. App. 469, 68 S.W. 367; Justice v. Nesquehousing Val. R. Co., supra; Webster v. K.C. S. Ry Co., 116 Mo. 114, 22 S.W. 474; Miller v. St. L.K.C. Ry. Co., 162 Mo. 424, 63 S.W. 85; Sec. 523.090, R.S. 1949. (6) The trial court erred in holding that this was an action for damages for a temporary trespass and in making numerous rulings based thereon. Where the owner of land sues a corporation having the power of eminent domain for appropriating part of the land to its own use, the measure of damages is depreciation in the market value and not depreciation in rental value. Tooker v. Mo. P. L. Co., 336 Mo. 592, 80 S.W.2d 691; McReynolds v. K.C. S. Ry. Co., 110 Mo. 484, 19 S.W. 824; Smith v. City of Sedalia, 224 Mo. 107, 149 S.W. 597; Langenberg v. St. Louis, 355 Mo. 634, 197 S.W.2d 621; De Geofray v. Merchants Bridge Term. Ry. Co., 179 Mo. 698, 79 S.W. 386; Martin v. Chicago S. F. Ry. Co., 47 Mo. App. 452; Tegeler v. Kansas City, 95 Mo. App. 162, 68 S.W. 953; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 647; City Water Co. of Sedalia v. Hunter, 319 Mo. 1240, 6 S.W.2d 565. (7) In an action for the wrongful erection of a fence on the land of another by a private individual, the measure of damages is depreciation in market value. Welker v. Pankey, 225 S.W.2d 505. (8) The court erred in permitting owners of houses on the pipe line easement, other than plaintiffs, to testify that the fence depreciated the rental value of their propery. 2 Nichols, Eminent Domain, sec. 453, p. 1189; City of St. Louis v. Sheahan, 327 Mo. 305, 36 S.W.2d 951; Forest Preserve of Cook County v. Chilvers, 344 Ill. 573, 176 N.E. 720; Beale v. City of Boston, 166 Mass. 53, 43 N.E. 1029; Credle v. Ayers, 126 N.C. 11, 35 S.E. 128. (9) In any event the award of punitive damages is grossly excessive. Jones v. West Side Auto Buick Co., 231 Mo. App. 187, 93 S.W.2d 1083; Hunter v. Kansas City Ry. Co., 213 Mo. App. 233, 248 S.W. 998; Stephens v. Lever Bros. Co., 155 S.W.2d 540.
Henry C. Stoll for respondents; Joseph Nessenfeld of counsel.
(1) The trial court properly submitted the issue of punitive damages to the jury. Defendant intentionally committed a wrongful act without just cause or excuse. It had actual knowledge that the act was wrongful, and intentionally and willfully constructed the fence without just cause or excuse. Legal malice was proved. Hussey v. Ellerman, 215 S.W.2d 38; Peak v. Taubman, 251 Mo. 390, 158 S.W. 656; Callahan v. Ingram, 122 Mo. 355, 26 S.W. 1020; Kelly v. City of Cape Girardeau, 338 Mo. 619, 89 S.W.2d 41. (2) Defendant, as a corporate entity, had actual knowledge of the amended petition in the Whittemore case and of the limited easement it obtained therein. The Whittemore proceeding was a corporate act, and when defendant ordered the fence built it did so with actual knowledge that it had no lawful right to build such fence. 19 C.J.S., p. 619; Meador v. Trout Brook Ice Feed Co., 96 Conn. 454, 114 A. 668; Neal v. Cincinnati Union Stock Yards Co., 25 Ohio Cir. Ct. 299; State on inf. of Taylor v. American Ins. Co., 355 Mo. 1053, 200 S.W.2d 1; Kregain v. Blake, 292 Mo. 498, 239 S.W. 495; Virginia C. Mining, Milling Smelting Co. v. Clayton, 233 S.W. 215. (3) The mere fact that defendant has the power of eminent domain for pipe line purposes does not justify its wrongful act nor give it immunity from liability for punitive damages. The power of eminent domain may be exercised by a pipe line company only when the necessity therefor is established for pipe line purposes. A bare right to fence may not be condemned, since such is not a public use nor a pipe line purpose where, as here, the surface rights are not taken but are reserved to the landowner. Shell Pipe Line Corp. v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917; St. Louis, K. N.W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192. (4) The judgment in the Whittemore case, based upon the amended petition, constitutes an adjudication, adverse to defendant, that there is no public necessity to take the surface rights to plaintiffs' property and fence the right-of-way. Defendant is bound thereby and may not now contend to the contrary. Shay v. New York Life Ins. Co., 354 Mo. 920, 192 S.W.2d 421; Laughlin v. Boatmen's Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974. (5) Defendant neither pleaded nor proved that it was taking the bare right to fence. There is no allegation nor proof that the surface rights are needed by defendant for pipe line purposes or for a public use. Whether a use is public is a judicial question. Since defendant did not raise the issue in its answer nor present proof thereof, the issue is not in the case. (6) A landowner is not compelled to acquiesce in an attempted appropriation of his property simply because the wrongdoer has the power of eminent domain, but may, if he wishes, sue in trespass even where the use is unquestionably public. Doyle v. K.C. S. Ry Co., 113 Mo. 280, 20 S.W. 970; Ring v. Mississippi River Bridge Co., 57 Mo. 496; Webster v. K.C. S. Ry. Co., 116 Mo. 114, 22 S.W. 474. (7) The trial court did not err in its submission of the measure of actual damages. This suit is for damages resulting from a continuing trespass. The fence can be removed at any time and the injury thereby abated. Hence the injury is temporary and will cease the instant defendant takes down the fence. Since plaintiffs are not suing for a permanent appropriation of the right to fence (and defendant may not legally appropriate such right), the injury sustained is to the value of the use and enjoyment of the property caused by the fence. 61 C.J. pp. 1051, 1052; De Salme v. Union Electric L. P. Co., 102 S.W.2d 779; Kelly v. City of Cape Girardeau, 338 Mo. 619, 89 S.W.2d 41; McGann v. Hamilton, 58 Conn. 69, 19 A. 376; Zella Mining Co. v. Collins, 203 Ky. 178, 261 S.W. 1091; Stowers v. Gilbert, 156 N.Y. 600, 51 N.E. 282. (8) Permanent damages may not be allowed in the absence of proof, and a finding by the jury, that the cost of removing the structure exceeds the depreciation in the value of the property, except in certain instances where it would be against public policy to remove the structure, as in the case of necessary public improvements such as sewer systems, water mains and power lines. Shelley v. Ozark Pipe Line Corp., 327 Mo. 238, 37 S.W.2d 518; Blankenship v. Kansas Explorations, 325 Mo. 998, 30 S.W.2d 471; DeSalme v. Union Electric L. P. Co., 102 S.W.2d 779; 61 C.J., pp. 1051, 1052. (9) There was no prejudicial error in the admission of evidence. The testimony complained of had a direct tendency to show that the fence did in fact depreciate the rental value of all property in the immediate neighborhood, and thereby corroborate plaintiffs. Even if the evidence pertained to collateral issues, as claimed, the admission of such evidence is in the discretion of the trial court. Schonwald v. F. Burkart Mfg. Co., 356 Mo. 435, 202 S.W.2d 7; Brunner v. Stix, Baer Fuller, 352 Mo. 1225, 181 S.W.2d 643. (10) The evidence related solely to the amount of actual damages. There is no claim that the damages awarded are excessive, and no showing that defendant was prejudiced by the admission of the evidence. Prairie Pipe Line Co. v. Shipp. 305 Mo. 663, 267 S.W. 647. (11) The award of punitive damages is not excessive. State ex rel. St. Joseph Belt R. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351; Jones v. West Side Buick Auto Co., 231 Mo. App. 187, 93 S.W.2d 1083; Chrisman v. Terminal R. Assn. of St. Louis, 157 S.W.2d 230; Patrick v. Employers Mutual Ins. Co., 333 Mo. App. 251, 118 S.W.2d 116; Hopkins v. Terminal R. Assn. of St. Louis, 157 S.W.2d 236; Sperry v. Hurd, 267 Mo. 628, 185 S.W. 170.
In this action for trespass the plaintiffs have been awarded $157.50 actual damages and $2750 punitive damages. The appeal has been transferred to this court by the St. Louis Court of Appeals (Beetschen v. Shell Pipe Line Corp., 248 S.W.2d 66) and even though we may approve of that court's opinion and decision it is now the duty of this court to consider and determine the appeal anew. Const. Mo., Art. 5, Sec. 10; Sup. Ct. Rule 2.06; In re Adoption of Sypolt, 361 Mo. 958, 237 [786] S.W. (2) 193; In re Adoption of Duren, 355 Mo. 1222, 200 S.W.2d 343.
The plaintiffs, Kenneth and Alvera Beetschen, are the owners of a home on Lot 64 in St. Ann, a city in St. Louis County. The admitted trespass to the plaintiffs' lot came about in these circumstances: The appellant, Shell Pipe Line Corporation, has a subsurface easement for its crude oil pipe line across the south ten feet of the plaintiff's lot. The easement for the pipe line was acquired in a condemnation proceeding in the United States District Court for the Eastern District of Missouri in 1928. In that proceeding, by amendment of its original petition, the Shell Pipe Line Corporation specifically stipulated that its pipe line would be laid at least two feet underneath the surface of the ground and would be so constructed and maintained as not to interfere with the cultivation or other use of the surface of the land, and "that petitioner and its successors in interest may have no right to fence said strip of land." And, in instructing the jury upon the measure of damages, the trial judge informed the jury that they should take into consideration the fact that the strip of land could not be fenced by the plaintiff or its successors. Despite its specific stipulation in the condemnation proceeding by which the easement was acquired and despite the fact, admitted in this proceeding, that it had no right to enclose the surface of the easement, the Shell Pipe Line Corporation, in 1949, constructed a six-foot steel and wire fence with gates, topped with three strands of barded wire, enclosing the ten-foot strip on the plaintiff's lot.
Even now the appellant does not claim that it had a right to construct the fence, and, while it seeks to palliate the fact, it does not attempt to justify its conduct in having done so. Its defense to the action and claim here is that the trial court erred in holding and instructing the jury upon the theory that this is an action for a temporary trespass. Its position is that it possessed the power of eminent domain and could have condemned the right to fence and having appropriated, without authority, that right, the taking or fencing is permanent and, therefore, there could be no liability for punitive damages and necessarily the landowner is bound to seek his entire recovery in one action for all the damages sustained. As a factual basis for its position the appellant claimed and proved that when the question of its right to fence arose in 1949 its representatives examined their files and did not find the amended petition in the original condemnation proceeding, and, relying upon the original petition and the decision of this court in its companion condemnation case of Shell Pipe Line Corporation v. Woolfolk, 331 Mo. 410, 53 S.W. (2) 917, in which it acquired the right to fence, the opinion was given that it also had the right to fence this easement. In these circumstances it is urged that the knowledge of its officers in 1928 that it had no right to fence could not be imputed to its officers and representatives in 1949, hence that it acted in good faith in constructing the fence and could not be guilty of conscious wrongdoing and, therefore, there was no basis for the submission of punitive damages.
The difficulty with this argument is that it ignores certain basic facts. In the first place the corporation as well as its employees necessarily had knowledge of the fact that the only interest the corporation could acquire in the ten-foot strip for the purpose of its pipe line right of way was an easement. Const. Mo., Art. 1, Sec. 26; Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649; St. L., K. N.W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192. An easement is a nonpossessory interest in land (5 Restatement, Property, p. 2903) and does not include the right to fence, that right remains with the owner of the servient estate and he is not bound to permit the erection of fences. Sizer v. Quinlan, 82 Wis. 390, 52 N.W. 590; 22 Am. Jur., Sec. 3, p. 513; 28 C.J.S., Sec. 98(2)b, p. 783. The right to enclose an easement with a fence does not accrue by reason of the dominant owner's zeal or duty to protect the public, if that right is necessary or desired it must be acquired in an appropriate condemnation proceeding. Annotation 6 A.L. [787] R. (2) 205, 210; Aycock v. Houston Lighting Power Co., (Tex.) 175 S.W.2d 710.
More important, however, is the basic fact of the condemnation proceeding itself in which the limited subsurface easement was acquired. Of course, in instituting, amending and prosecuting its condemnation proceeding in 1928, the corporation necessarily acted through its representatives as it did again in 1949 when the corporation constructed the fence. In that proceeding it could have acquired an easement to the surface use of the ten-foot strip, including the right to fence, but instead it voluntarily elected to acquire a subsurface easement with express reservations to the landowner (annotation 7 A.L.R. (2) 364; Shell Pipe Line Corp. v. Woolfolk, supra) and specifically stipulated that there was no right in the condemner or its successors to fence the easement. The purpose of its action in specifically amending the petition, no doubt, was to reduce the damages in the condemnation proceeding. But, regardless of the reason for its election and irrespective of the fact that it acted through different representatives or agents in 1928 and in 1949, the basic fact is that it is the corporate entity, the Shell Pipe Line Corporation, that has been invested with the right to exercise the power of eminent domain. R.S. Mo. 1949, Sec. 523.010. By reason of that fact the condemnation proceeding was instituted, amended and prosecuted to a conclusion in the name of the Shell Pipe Line Corporation and the title, right or interest condemned and acquired by reason of that proceeding, the specifically limited subsurface easement, vested in the Shell Pipe Line Corporation. The proceedings in the condemnation suit constitute the corporate entity's record and muniments of title, and those proceedings show the title to be an easement, as well as its quantity and quality, vested in the Shell Pipe Line Corporation. State ex rel. Campbell v. Brinkop, 238 Mo. 298, 307, 143 S.W. 444; 6A Fletcher, Cyclopedia Corporations, Sec. 2814, p. 295. Whatever its individual employees may have known or forgotten, either in 1928 or in 1949, the corporate entity of necessity had full knowledge then and now of its right, title and interest in the ten-foot strip, including the fact of no right to fence. Pentz v. Kuester, 41 Mo. 447. "It requires no citation of authority to show that a man can not question a title given by himself or hold possession of the land in the face of his own deed." Steele v. Culver, 158 Mo. 136, 138, 59 S.W. 67.
And so the corporation with full knowledge of its limited and restricted title trespassed and erected the fence. 10 Fletcher, Cyclopedia Corporations, Sec. 4893, p. 431; 36 C.J.S., Sec. 19, p. 669; 1 Restatement, Torts, Secs. 160, 161. The erection of the fence was certainly intentional, it was a wrongful act and was done without just cause or excuse and was therefore wilful, and warranted the submission of punitive damages. Cox v. St. L.M. S.E. Ry. Co., 111 Mo. App. 394, 408, 85 S.W. 989; Kelly v. Cape Girardeau, 338 Mo. 103, 113, 89 S.W. (2) 41, 45; 25 C.J.S., Sec. 123, p. 725. In this situation, the landowners by instituting this type of action tacitly consent to the removal of the fence (Prosser, Torts, p. 91; 1 Restatement, Torts, Sec. 161, comment pages 374, 378) and the continued maintenance of the fence constitutes a temporary continuing trespass giving rise to successive causes of action. 1 Restatement, Torts, Sec. 160; Doyle v. Kansas City S. Ry. Co., 113 Mo. 280, 20 S.W. 970; Hartman v. Tully Pipe Line Co., 25 N.Y.S. 24. In Kansas City, F.S. M.R. Co. v. King, 63 Ark. 251, 38 S.W. 13, a railroad with a right of way across the plaintiff's land so fenced its way as to enclose the plaintiff's spring. The land was in the possession of a tenant so there was no proof of present damage to the landowner, but that court said, "It appears that the structure complained of was a fence, which, according to the adjudged cases, as we understand them, being temporary and not permanent in its character, gave to the party who might be entitled to sue for any damage consequent upon its erection a right to sue for such damages only as had accrued before the institution of the suit, and a right to bring successive actions for damages consequent upon the continuance of the structure thereafter, if the same [788] was wrongful." In addition, "One who intentionally enters land in the possession of another without a privilege to do so is liable, under the rule stated in § 158, to the possessor of the land as a trespasser thereon, although he acts under a mistaken belief of law or fact, however reasonable, not induced by the conduct of the possessor * * *." 1 Restatement, Torts, Sec. 164.
As the appellant urges, there is an exception to this rule of liability and measure of recovery where the appropriation is permanent and "where the actor is a public utility which could by condemnation proceedings have acquired a privilege permanently to maintain on the land the structure, chattel or other thing, unless it appears that the actor does not intend so to maintain it." 1 Restatement, Torts, p. 373; Prosser, Torts, note p. 91. But the exception does not mean that every trespass by a corporation invested with the power of eminent domain is permanent or compels a single action for all damages sustained by reason of the unlawful appropriation or invasion. Doyle v. K.C. S. Ry. Co., supra. In all the instances in which the rule has been applied the landowner in fact sought and prosecuted to a conclusion an action to recover all damages sustained. In several of those actions the trespassing corporation appealed and contended that the taking or injury was not permanent and that recovery could only be had for temporary damages. Blankenship v. Kansas Explorations, 325 Mo. 998, 30 S.W.2d 471. And in all those instances the appropriation was in fact necessary for the very public purpose for which the easement could have been required in a condemnation proceeding. This is particularly true of the cases in which a railroad corporation, without authority, appropriates a right of way and constructs a railroad across land. The appropriation is permanent, it is for a public railroad purpose for which the right of way could have been condemned, and the measure of the landowner's recovery and damages is the same as in condemnation. McReynolds v. K.C., C. S. Ry. Co., 110 Mo. 484, 19 S.W. 824; Webster v. K.C. S. Ry. Co., 116 Mo. 114, 22 S.W. 474; Cochran v. M., K. T. Ry. Co., 94 Mo. App. 469, 68 S.W. 367. Thus the unauthorized construction of an electric transmission line is permanent and the appropriation for a purpose for which an easement could have been acquired in a properly instituted condemnation proceeding. Tooker v. Missouri Power Light Co., 336 Mo. 592, 599, 80 S.W.2d 691; Phillips v. Postal Tel. Cable Co., 130 N.C. 513, 41 S.E. 1022. Likewise, the unauthorized construction of a crude oil pipe line would be permanent and the appropriation for a pipe line purpose as in the railroad cases. Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 671, 267 S.W. 647; Shell Pipe Line Corp. v. Woolfolk, supra. However, all trespasses to land incidental to the maintenance of pipe lines are not permanent and do not necessarily give rise to but a single action for damages. Shelley v. Ozark Pipe Line Corp., 327 Mo. 238, 37 S.W.2d 518. In this case the fence is not permanent in the sense that the construction of a railroad, an electric line or a pipe line is permanent. It is not an integral part of the pipe line purpose for which private property may be condemned. There is no abstract right to condemn land for the mere purpose of erecting a fence and this fence is not necessary or essential to the corporation's full enjoyment of its easement. The course of this pipe line is from Wink, New Mexico, through Texas, Oklahoma and Missouri to Wood River, Illinois and, except for this fence in St. Ann, there are no fences along its entire right of way. In these circumstances the exception is inapplicable and the plaintiffs were not compelled to recover all damages in a single action.
This disposes of the essential merits of the appeal. As indicated in the opinion of the court of appeals, there was no error in the admission of evidence or in instructing the jury so prejudicial as to demand the granting of a new trial. Mo. R.S. 1949, Sec. 512.160. There is no evidence of actual malice, spite or ill will, the trespassing fence had been maintained for a period of three and one half months and the award of $2750 punitive damages is so disproportionate as to be excessive in the sum of $2250. Therefore, [789] if the plaintiffs will, within fifteen days from the date of filing this opinion, enter here a remittitur in the sum of $2250 the total judgment for $657.50, as of the date of the original judgment will be affirmed; otherwise, the judgment will be reversed and the cause remanded because of the excessiveness of the verdict. Westhues and Bohling, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.