Area Real Estate Associates, Inc. v. City of Raymore

DIXON, Judge. Plaintiff appeals a jury verdict for defendant City in an inverse condemnation action. The determinative issue is plaintiff’s assertion that the City’s affirmative converse instruction was without evidentia-ry support. The verdict and judgment are reversed, and the cause is remanded for a new trial. The City embarked upon a plan for providing sewer services for its residents. In May 1978, the City sent a letter to plaintiff advising it of the City’s need for sewer easements, and enclosed a right-of-way sewer easement form, a legal description of the affected property, and a map showing the location of the proposed sewer on plaintiff’s property. The map shows the sewer line entering plaintiff’s property from the east at about the center of the east property line, then going west a few feet to a manhole, where it stops. Plaintiff executed the easement form which was recorded without the map. The sewer improvement, constructed during the summer of 1979, entailed cutting a hole 6 X 10 feet and installing a manhole cover. In July 1980, plaintiff’s neighbor to the south, Boneless Beef, contacted plaintiff regarding the possibility of acquiring a private easement from plaintiff to connect Boneless Beef’s facility to the sewer manhole in front of plaintiff’s property. This request was necessitated because the sewer line intended for Boneless Beef’s use was at an elevation that prevented its use. Plaintiff refused the request. A month later, the City’s civil engineer, Tom F. Baker, contacted plaintiff, and in their conversation, it was revealed that the City intended to run an additional sewer line diagonally across plaintiff’s property from the original 1979 manhole to a manhole to be constructed on Boneless Beef’s property. Baker testified at trial that the Boneless Beef line was an addition to the original plan, one that “was never contemplated and never talked about until August of ’80.” The map that plaintiff saw and which was attached to the easement that plaintiff signed did not show this additional line. The easement document granted to the City “a perpetual easement with the right to survey, erect, construct, install, and lay, and thereafter use, operate, inspect, repair, maintain, replace and remove a sewer line over, across and through the land of the GRANTOR, * * The document described plaintiff’s entire property. In addition to the general grant of an easement, the document contained the following language: “[T]he permanent easement shall be 20 feet in width, the center line thereof to be located along said pipe as installed construction width to be as required.” [463] The City then began to install a sewer line across the corner of plaintiffs property, from the manhole originally on plaintiffs property, a distance of some 90 feet, to the property of the adjacent landowner. Plaintiff filed suit, and the cause was submitted to the jury under plaintiffs theory of inverse condemnation. Plaintiff asserts the trial court erred in submitting instruction No. 10, which reads as follows: Your verdict must be for defendant if you believe plaintiff granted defendant an easement to construct and maintain the sewer line to serve Boneless Beef mentioned in evidence on plaintiffs property. Plaintiff argues no evidence supports the submission. The instruction provides that, if plaintiff gave an easement, the verdict must be for defendant. The only evidence of an easement was that shown above. No other evidence supports a grant of easement by plaintiff. It is, therefore, implicit in the submission of Instruction No. 10 that the written easement under the facts outlined above could constitute an easement for the later installation of the line to serve Boneless Beef. The trial court necessarily considered the easement to permit, as a matter of law, such later installation. If, as a matter of law, the only evidence of easement does not permit the later installation, the instruction was erroneously given. In Edward Runge Land Co. v. Busch, 594 S.W.2d 647, 649 (Mo.App.1980), the easement in dispute read as follows: The grantor expressly reserves to himself, his heirs and assigns the right to drain the water from his lands lying south of the lands above described and conveyed over and upon the lands hereby conveyed at such points as he may think best to drain his lands effectively and well. The court affirmed the grant of an injunction permitting the plaintiffs to continue to use a ditch which had been established for many years under this easement. The court held that, where no definite location is given as to an easement’s location the course over which it is to be exercised can be fixed in either of two ways, that is, by express agreement or by a selection that can be inferred by proof of the use of a particular way. Id., at 650. The Runge court had earlier referred to Bolomey v. Houchins, 227 S.W.2d 752 (Mo.App.1950), for the general rule that: Where (as in this case) an easement in land is created in general terms without giving its definite location and description, the course over which the right is to be exercised may be subsequently fixed by the express agreement of the parties, or a selection may be inferred within the boundaries of the land over which the right is granted by proof of the use of a particular way on the part of the grantee or owner of the dominant estate along with the acquiescence of the grantor or owner of the servient estate. Massa v. Union Electric Light & Power Co., Mo.App., 50 S.W.2d 714; Geismann v. Trish, 163 Mo.App. 308, 143 S.W. 876; Davis v. Watson, 89 Mo.App. 15; 28 C.J.S., Easements, § 82; 17 Am.Jur., Easements, sec. 86. Id., at 755. A much more recent case precisely parallels the instant case. In Keener v. Black River Electric Co-Operative, 469 S.W.2d 657 (Mo.App.1971), the plaintiffs brought an action against the electric cooperative for trespass and for the cutting of trees. The defendant electric utility filed an answer, asserting it had a blanket easement covering the entire property in question. The evidence showed that the plaintiffs had sought a connection from the electric utility to serve their property with electricity and had, in connection with that request, executed a blanket easement. The utility then extended the electricity onto the plaintiffs’ property. About a year later, the electric utility entered the plaintiffs’ land and extended the line across the plaintiffs’ property, installing anchors and another pole. The trees were cut to provide the right-of-way for the extension of the line. A judgment was rendered in favor of the [464] plaintiffs and the defendants appealed, asserting the court erred in refusing to give an instruction which directed a verdict for the defendant, if the jury found that the plaintiffs had signed the easement mentioned in evidence. The court held, in determining whether the instruction should have been given, that it would give the easement the same meaning and intent as did the parties. Based on the facts, the court held further, that the easement was intended only for the defendant’s use in the original construction by placing a pole on and extending service to the plaintiffs’ property. The instruction was properly refused, since, as a matter of law, the defendant had no easement to extend the line. The court noted that the trial court had tried the case on the theory of inverse condemnation, but that the plaintiffs had not appealed from a judgment based on that theory and a damage instruction for before and after value. The court, therefore, affirmed the judgment, indicating that if the plaintiffs had appealed, it would have reversed the judgment because the plaintiffs were entitled to recover triple the value of the trees under § 537.340 RSMo 1978. Not the slightest doubt exists under this evidence, that the broad general easement over and across the plaintiff’s land was by the parties’ action, and their acknowledged intent converted it into an easement over a specific portion of the plaintiff’s land, to-wit: the pipe and the manhole installed in 1979. To hold otherwise would permit any utility, which obtained such a general easement and installed some facility, to return and make any extensions it desired from that easement, as long as they were over and across the plaintiff’s property. As a matter of law, under the evidence in this case, the City had no easement right for the construction of the additional line for the Boneless Beef property. Instruction No. 10 was erroneously given and amounted to a misdirection of the jury. The verdict and judgment are reversed and the cause remanded to the circuit court for a new trial. SHANGLER, J., concurs. PRITCHARD, P.J., dissents in separate dissenting opinion.