Reinhoff v. Springfield Gas & Electric Co.

ROBERTSON, P. J. The defendant is a corporation organized -under the laws of this state with its office at Springfield. The plaintiffs at the time of the alleged injury were the owners of a residence in that city in front of which, in the parkway between the sidewalk and the pavement, were located large and beautiful shade trees which the defendant practically destroyed in placing its wires and poles through the tops of same. Plaintiffs sued the defendant for these damages and recovered judgment for one thousand dollars. The defendant has appealed. Some objection is made by the defendant to the testimony of conversation claimed to have been had by one of the plaintiffs and an officer of the defendant company, but at the time the testimony was admitted there was a claim then before the jury for exemplary damages;, but, as this testimony was subsequently stricken out and withdrawn from the jury, we are of the opinion that the defendant has no grounds of complaint concerning the admission of this testimony. [419] The defendant’s principal contention here and the only one we consider worthy of notice is that the easement to the entire street, including this parkway, vested in the city in trust for the ordinary and necessary purposes to which the streets of a city are usually subjected; that this includes purposes other than for travel; and that such additional use includes the right to erect poles of the character the defendant was erecting at the time plaintiffs’ trees were destroyed, and that consequently plaintiffs had no cause of action by reason of the destruction of their trees. This question has long since been settled and settled properly, in our opinion, by the case of McAntire v. Telephone Co., 75 Mo. App. 535, holding that while this right may exist in public service corporations it is not possessed to such an extent as to relieve them from liability on account of the destruction of property there located belonging to the owner of the adjacent property. To hold otherwise would be unjust. These parkways are left and recognized by the city for ornamental purposes and with the intention that they shall be used by the adjoining property owners for shade trees and for the purpose of beautifying the streets and the residences of the city (Walker v. Sedalia, 74 Mo. App. 70); and to hold that commercialism is so predominant in this state as to justify the destruction of such ornaments, without compensation to the owner who rightfully placed them there, would be, to our minds, wholly unjustifiable. The judgment is affirmed. Sturgis, J., concurs. Farrington, J., having been of counsel, not sitting.