199 Mo. App. 356 | Mo. Ct. App. | 1918
The petition herein alleges that plaintiff is, and at all times mentioned in the petition was, the owner of a certain tract of ground in the city of St. Louis, consisting of certain lots, with the exception of “that portion of said lots which is contained in a certain public street known as Northland avenue,” which now extends through the original tract, and excepting two public alleys extending through the same; “that defendants, through their agents and servants, between April 25, 1914, and August 6, 1914, without the knowledge or consent of plaintiff, caused to be dumped and laid upon said land a large amount, to-wit, Sixty-three and seventy-one ' hundredths (63.71) cubic yards of earth, taken and removed from said Northland avenue; that the reasonable value of the use of said land for dumping of said earth is the sum of three thousand dollars ($3000); that no part of said sum has been paid by said defendants, although demanded.” Judgment is prayed for $3000.
The answer admits that some earth was placed by defendants upon the land described in the petition, but avers “that the same was done with the permission and consent of plaintiff under verbal agreement between these defendants and plaintiff through F. H. Bailey, the tenant and occupant thereof at the time, who was the agent of plaintiff and duly authorized to make said agreement.” The other allegations of the petition are denied.
The trial, before the court and a jury, resulted in a verdict for defendants. Thereafter the court sustained plaintiff’s motion for a new trial On the ground that error had been committed at the trial in the
The evidence shows that in 1914, and for many years prior thereto, plaintiff owned the tract of land mentioned in the petition, lying on the north side of Spalding avenue between Kings highway and Union boulevards, in the city of St. Louis, containing about ten or twelve acres of land. In 1910 plaintiff rented the property to one Bailey, as a tenant from month' to month, who remained such tenant and was in possession thereof during the year 1914. Bailey occupied an eight room house situated upon the land, and according to plaintiff’s testimony, “had possession of all the land except what was taken for streets and alleys.” It appears that in 1911 there was a large depression upon this land wherein water collected forming a pond; that plaintiff desired to have this depression filled, and that the Board of Health of the city of St. Louis took steps to require this to be done. In that year plaintiff gave a letter to one Holmes authorizing him to enter upon the premises and dump earth into the depression, and later made an arrangement with the Union Electric Light & Power Company to dump earth at this place. According to testimony for plaintiff this depression was entirely filled by some time in 1913'. Plaintiff testified that he never at any time gave Bailey a permit to allow dumping upon the land; but it appears that Bailey did at different times allow contractors to use the land as a dumping place. And in 1914 the defendant Webb-Kunze Construction Co. being then engaged — under contract with its co-defendant — in excavation work for the construction of Northland avenue, which had been opened through plaintiff’s tract of land, entered into an oral agreement with Bailey whereby, in consideration of the sum of $125 paid to him, Bailey undertook to authorize said defendant to dump upon plaintiff’s land the dirt excavated in making this street. And under this agreement said defendant dumped earth
Plaintiff adduced evidence tending to show the reasonable value of the use of the land for dumping purposes. There is no evidence, however, tending to show any injury to the reversion or freehold by the placing of this earth upon plaintiff’s land.
At the close of plaintiff’s case and again at the close of the entire ease, defendants offered a peremptory instruction in the nature of a demurrer to the evidence which was refused. In the view which we take of the case it is unnecessary to set out defendants’ instruction No. 5, or any of the other instructions given.
Learned counsel for appellant, while contending that if the case was one for the jury it was not error to give defendants’ instruction No. 5, argue with much force and earnestness that in no event was plaintiff entitled to recover under the petition and evidence in this ease; that the demurrer to the evidence should therefore have been sustained; and that consequently, regardless of all other considerations, the court erred in disturbing the verdict obtained by defendants at the hands of the jury.
The question as to plaintiff’s right to recover at all was, of course, raised by the demurrers to the evidence interposed below, and is consequently here presented by this record. And it is undeniably true that if plaintiff, under his petition and the evidence adduced, was not entitled to go to the jury, then the order of the trial court setting aside the verdict for defendants, upon the theory
Pursuing the argument advanced by appellant’s counsel in this connection, the averments of the petition should first be noticed It is charged that the defendants dumped the earth' in question upon plaintiff’s land without plaintiff’s knowledge or consent; and it is then averred! that the reasonable value of the use of the land for such dumping purposes was $3000, for which a recovery is sought. Appellant refers to the petition as one seeking to recover in trespass, but says that since plaintiff admits that he was out of possession he can recover only for injury to the reversion. Respondent’s learned counsel at the outset of their statement contained in their brief refer to the action as one in trespass; however, elsewhere throughout their brief they appear to deal with the action as one to recover for the value of a “dumping privilege” — by which must be meant a recovery as for the use and occupation of the land for such purpose.
, It is quite clear that plaintiff being out of possession — the entire premises then being in exclusive possession of Bailey, the tenant — rcannot recover in trespass as for a wrong committed against the possession (Lindenbower v. Bentley, 86 Mo. 515; Zeitinger v. Hackworth, 117 Mo. 505, 23 S. W. 763; Thurmond v. White Lime Ass’n., 125 Mo. App. 73, 102 S. W. 617), though, as an owner out of possession, he may have his action against a trespasser for an injury done to the reversion. [Bobb v. Syenite Grain Co., 41 Mo. App. 642; Bailey v. Siegel Gas Fixtures Co., 54 Mo. App. 50; Ridge v. Transfer Co., 56 Mo. App. 133.] At common law this action - of a landlord for an injury
But plaintiff has neither alleged' any damages to the freehold nor is there any evidence whatsoever tending to show any such damage. Indeed, as said, plaintiff’s case does not proceed upon this theory at all; on the contrary the recovery sought is for the reasonable value of the use of the land for the purpose mentioned, though the petition does not state a cause of action for use and occupation of the land, since it does not’ attempt to allege any contractual relation arising in any manner between the parties, but alleges that defendants made such use of the land “without plaintiff’s knowledge or consent.” An action for use and occupation cannot he maintained unless the relation of landlord and tenant exists between the parties, founded upon an agreement express or implied. [Hood v. Mathis, 21 Mo 308; Kohen v. Kyler, 27 Mo. 122; Hunton v. Powers, 38 Mo. 353; Edmonson v. Kite, 43 Mo. 176; Starbuck v. Avery, 132 Mo. App. 542, 112 S. W. 33; Keinstra v. King, 143 Mo. App. 33, l. c. 37, 122 S. W. 337; State ex rel. v. Dickmann, 146 Mo. App. 396, 124 S. W. 39; Haumueller v. Ackermann, 150 Mo. App. 141, 130 S. W. 91; Bracht v. Johnson, 187 Mo. App. 220, 173 S. W. 692;
Not only is the petition insufficient, as one at tempting to state a cause of action for use and occupation, hut the evidence conclusively shows that the relation of landlord and tenant did not in any manner exist between the plaintiff and the defendants. For the mere use by defendants of the land, for dumping purposes or otherwise, without injury to the reversion, under license from Bailey who was in possession thereof as a tenant from month to month, plaintiff can have no cause of action against defendants. The fact that earth was not only dumped upon the land but was permitted to there remain may perhaps constitute an injury to the reversion for which defendants may be held answerable to plaintiff in damages, but plaintiff’s right to recover damages for such injury, if any, is not here involved.
We regard it as quite clear that under the petition and the evidence in the case plaintiff was not entitled to recover in this action, and that the court should have sustained defendants’ demurrer to the evidence. And it follows, from what he have said above, that the trial court was not warranted in granting the new trial and depriving defendants of the verdict in their favor.
The order granting the new trial will consequently be reversed and the cause remanded with directions to the circuit court to reinstate the verdict and enter judgment thereon accordingly. It is so ordered.