Summary
saying "the correctness of [the court of appeals' Young ] ruling is well supported"
Summary of this case from Barfield v. Sho-Me Elec. Coop.Opinion
February 18, 1928.
1. LIMITATIONS: Damages: Recovery in Equity. Actions at law for damages and in ejectment for the unlawful entry upon and use of plaintiff's land being clearly barred by limitations, the defendants, even if their demurrer to the petition does not raise such questions, have a right to a trial before a jury, and relief by plaintiff for such entry and ensuing damages cannot be had in a proceeding in equity.
2. ____: ____: Waste: Equity. Damages for waste of plaintiff's land by an unlawful occupant, if barred by limitations in an action at law, cannot be recovered in a court of equity.
3. ____: Equitable Cognizance. The fact that an action at law is barred by limitations does not justify a court of equity in undertaking to grant relief, where equitable jurisdiction could not be invoked on other grounds.
4. ACCOUNTING: Implied Agreement: Trespasser: Equity: Pleading. A petition based upon the theory of an implied agreement by telephone companies, which more than ten years ago entered upon and proceeded to erect lines of telephone poles and wires upon plaintiff's lands, without condemnation or license, to compensate plaintiff, with the resulting right in plaintiff to have an accounting, but failing to state any enforcible agreement to pay rent or otherwise to make compensation, does not allege facts showing plaintiff entitled to an accounting.
Corpus Juris-Cyc. References: Accounts and Accounting, 1 C.J., Section 98, p. 633, n. 81. Actions, 1 C.J., Section 178, p. 1049, n. 38. Equity, 21 C.J., Section 251, p. 254, n. 86. Limitations of Actions, 37 C.J., Section 57, p. 738, n. 89; Section 117, p. 779, n. 33.
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 F. 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 due knowledge and means of knowledge of the existence of the attendant and foregoing facts and circumstances and thereby assumed and became liable jointly as well as severally to complainants for the indebtedness, obligations, and liabilities arising from such user and license and accruing to complainants and so continue: the license of and for such user as aforesaid has long since been revoked by the complainants and terminated, wherein and whereby said defendants the Home Telephone Company, the Missouri Kansas Telephone Company in that connection agreed with complainants and by their several acts and acquiescence promised as matter of law full and adequate compensation to complainants for such prior continuation and subsequent use of the several telephonic fixtures and apparatus of said defendants emplaced by them upon and over said lands with such additions and replacements thereto made by defendants from time to time during the years aforesaid and up to the present date, which liabilities and obligations to compensate complainants is now and has been in the past largely augmented by the great increased use and value of such privileges in recent years as an integral part of the present consolidated and unified equipment of all said parties sued herein made several years ago and requiring over one hundred thousand miles of wire lines as claimed by said defendants and their unified and consolidated business carried on under the style and title of the Kansas City Telephone Company by and under the governmental powers of eminent domain vested in said defendants corporations or claimed as vested in them with an aggregate income of more than four million dollars yearly and wherein the said Kansas City Telephone Company as unified corporation of the other defendants controls, directs and receives pay for more than one million telephone calls of the contributors and customers of said defendants so consolidated each day.
"Complainants further allege that the due reasonable and proper value of said privileges constantly and continually for many years by day and night exercised over complainants' land by defendants to their great gain and profit and owing and unpaid by them to complainants amount at this time to ten thousand dollars as complainants believe and so charge."
It is alleged that defendants assert a claim of title or interest in plaintiffs' land; that defendants are committing acts of waste upon said land "by breaking down and destroying fencing, by digging holes in the soil causing and permitting the washing away of large portions of said lands and the valuable soil thereof and by cutting down trees thereon permitting thereby the emplacement of telephone poles and supports and wires over said lands."
The theory upon which plaintiffs appealed to the equity powers of the court below is evidenced by the following quotation from their petition:
"That all and singular the acts and omissions of said defendants severally and collectively constitute a deprivation and impairment both of the property and personal rights of the complainants secured to them as citizens under the Constitution of the United States forbidding the deprivation of any person of life, liberty or property without due process of law, or the taking of private property for public use without just compensation, or the depriving of any person within the jurisdiction of a State of equal protection of the laws, all as defined by the courts of the land, and constitute an abuse of the corporate and statutory privileges granted by the State of Missouri to telephone and telegraph corporations as utilities created for public use and benefit.
"Complainants further show to the court here that they are without adequate legal remedy in the following particulars among others (1) that they are barred by law from suing defendants in ejectment or kindred possessory action on the law side of the court (2) that complainants are barred by law from suing defendants in actions sounding in tort under the facts stated (3) that owing to the intermingling of the corporate and business affairs of defendants their combinations and consolidations throughout the several years wherein the liabilities here set forth and obligations to pay have been accruing and still accrue together with the complexity of their several rights, obligations and apportionment of their joint earnings, a Court of Equity is the only proper and adequate tribunal to adjudicate upon and determine the rights and obligations of the parties herein toward each other as well as toward complainants (4) that complainants by statute are forbidden to treat the acts and entries set forth herein upon their property as unlawful appropriation or occupation thereof and are themselves prohibited from destroying or removing the chattels and telephone equipments of defendants from complainants' said property which acts or removal might be done by an individual citizen."
The prayer of the petition was as follows:
"Wherefore, the premises considered complainants do respectfully pray the court here (1) to order and decree an accounting by and under the direction of the court of the sums of money justly owing to complainants by reason of the defendants' acts, agreements and acquiescence and user over and upon the real property of complainants described herein and to enter judgment and decree of the court for due recovery of the same by complainants of such sums and apportionment as required in equity from said defendants (2) to ascertain and adjudge the pecuniary debt and extent of the indebtedness accruing to complainants from defendants from acts of waste committed by defendants their agents or servants upon the lands and property of complainants in connection with the corporate user by defendants jointly and severally of such lands (3) that the court do adjudge and decree that defendants both jointly and severally and all persons claiming under them or in their behalf or in behalf of any of them shall forthwith abandon and surrender all uses of complainants' said lands, to complainants and be and stand enjoined and forbidden from entering thereon thereafter other than by due order of the court, or authority of complainants, and for such other and further relief herein as complainants may be entitled and for all costs of complainants in this behalf sustained and complainants will ever pray."
The defendant Kansas City Telephone Company demurred, first, because the petition failed to state a cause of action, and, second, because the petition showed upon its face that the matters therein set out were res adjudicata. Defendant Southwestern Bell Telephone Company demurred because the petition failed to state a cause of action.
This is the third action growing out of the same alleged trespass which plaintiffs have brought against defendants Home Telephone Company and Missouri Kansas Telephone Company. In February, 1917, they filed suit against said defendants in the Circuit Court of Jackson County alleging an unauthorized entry upon their lands and the erection of a telephone line thereon without condemning the lands or compensating plaintiffs therefor. In the petition in that case, plaintiffs set out a notice to said telephone companies requiring them to remove their poles and wires from plaintiffs' premises and advising them that, upon failure to comply, plaintiffs would charge them as rental five dollars per month for each of the seven poles until removal thereof; and further advising that continuance of such occupancy would be regarded as an acceptance of the charge of five dollars per pole each month and as an agreement on the part of the telephone companies to pay said charge.
Treating the silence of the telephone companies as consent, plaintiffs claimed in the first suit that the sum of $1575 was due them from the telephone companies. Upon demurrer to their petition being sustained, plaintiffs stood upon their petition and declined to plead over, suffered judgment and appealed to the Kansas City Court of Appeals. The judgment of the trial court was affirmed. [Young v. Home Telephone Company, 201 S.W. 635.]
The Kansas City Court of Appeals held that no facts were alleged tending to show the existence of the relation of landlord and tenant between plaintiffs and the defendant telephone companies, because no agreement to pay rent was alleged. It was ruled that an action for use and occupation would not lie upon the facts alleged in said petition.
Thereafter a second action was instituted by plaintiffs against the same defendants. So far as we can determine, the action was based upon the same theory as the first one. On demurrer the petition was again held to state no cause of action. On appeal the ruling of the trial court was affirmed. In the opinion of the Kansas City Court of Appeals (Young v. Home Telephone Company, 233 S.W. l.c. 88) it was said:
"In considering the ruling of the trial court in sustaining defendants' demurrers to the petition, we need but say that a similar suit was instituted by plaintiffs on August 26, 1918, against the defendants herein. The petition in the former case was not materially different from the one in the case at bar. In the former suit demurrer to the petition was sustained by the trial court, and the ruling was affirmed by this court. [Young v. Home Telephone Co., 201 S.W. 635.] The questions involved in the present case are the same as those determined in that case."
The petition in this case is an unusual pleading. After alleging the entry upon their lands by the Home Company and the Missouri Kansas Company and the great profit derived by said companies and their successors (respondents here) from the use of plaintiffs' land, the petition alleges in effect that plaintiffs' rights to sue at law for compensation and to recover possession in ejectment are barred by limitation. It is alleged that the Home and Missouri Kansas companies "agreed with complainants and by their several acts and acquiescence promised as a matter of law full and adequate compensation to complainants," but it is evident from the pleading as a whole that plaintiffs are relying on an implied agreement to pay rent from the mere occupancy of their land. The pleader is manifestly counting upon the same sort of alleged agreement counted on in the first case, which the Kansas City Court of Appeals held did not amount to an agreement to pay rent. [Young v. Telephone Co., 201 S.W. 635.] As there, the petition here fails to plead an enforcible agreement on the part of the Home Telephone Company and the Missouri Kansas Telephone Company to pay any sort of compensation to plaintiffs. This was ruled in the first appeal and the correctness of that ruling is well supported by the authorities there cited.
The entry upon and the taking of plaintiffs' land were alleged to have occurred in the year 1908, or fourteen years before the present suit was filed. Actions at law for damages and in ejectment were clearly barred by limitation long before this suit was instituted. Whether the five-year statute or the ten-year Statute of Limitations governs, it is not necessary to determine. [Secs. 1305, 1316 and 1317, R.S. 1919.] But even if the demurrer did not raise such questions, the respondents have the right to a trial before a jury and relief cannot be had by plaintiffs for such entry and ensuing damages in a proceeding in equity. Hence, the petition states no cause of action in equity. The same thing is true as to the claim for damages for waste. Such damages as are here claimed may not be recovered in an action in equity. [Somerville v. Hellman, 210 Mo. l.c. 574, 111 S.W. 35; Benton County v. Morgan, 163 Mo. l.c. 678, 64 S.W. 119, and cases there cited.]
Nor does the fact that an action at law is barred by the Statute of Limitations justify a court of equity in undertaking to grant relief, where equitable jurisdiction could not otherwise be invoked. [Hoester v. Sammelmann, 101 Mo. l.c. 623, 14 S.W. 728; Washington Savings Bank v. Butchers Drovers' Bank, 107 Mo. l.c. 144, 17 S.W. 644.]
The petition is based upon the theory of an implied agreement by the telephone companies to compensate plaintiffs with the resulting right in plaintiffs to have an accounting. But, as the petition fails to allege any enforcible agreement to pay rent or otherwise to make compensation, plaintiffs do not allege facts showing themselves entitled to an accounting.
We are unable to find that any cause of action in equity is alleged in the petition. The trial court properly sustained the demurrers. Its judgment dismissing the petition is affirmed. All concur.