Ewen v. Hart

166 S.W. 315, 183 Mo. App. 107, 1914 Mo. App. LEXIS 460

• Court: Missouri Court of Appeals
• Decided: April 7, 1914
• Status: Published

Opinion

REYNOLDS, P. J.

This is an action by plaintiffs, who state in their petition that they were “lawfully possessed of and in possession of” certain real estate, consisting of three lots in Tuxedo Park in the city of Webster Groves, and that defendants, on the day named, with force and arms, entered upon the premises of plaintiffs and dug and excavated for the laying off, and did lay, a sewer, or sewers, diagonally across the premises, contrary to the form of the statute in such case made and provided; that by reason of the excavation and laying of the sewer or sewers,, the premises have been made totally unfit for building purposes, and plaintiffs have been damaged in the sum of $1500. They ask judgment “for treble damages as were occasioned by the acts of defendants, together with costs.”

The abstract sets out that the defendants, “further answering,” aver that the sewer was laid along a natural watercourse, with the consent of plaintiffs and on a right of way condemned by the city of Webster Groves for sewer purposes. It appears by the briefs and statements of counsel that the answer also contained a general denial.

The reply filed was a general denial. The cause went to trial before the court and a jury and resulted in a verdict in favor of defendants. Piling a motion for new trial and excepting to that being overruled, plaintiffs sued out a writ of error from this court.

There are eight points made in support of the contention that the action of the circuit court should be reversed and the cause remanded.

The first is, that the court erred in sustaining a demurrer of defendants, the city of Webster Groves and Hart, at the close of plaintiffs’ case in chief. In support of this contention it is urged that the general denial is overcome by a subsequent confession and avoidance, and that as' the evidence showed that these two defendants were present from time to time in superintending and encouraging the work, they were joint trespassers. The first of these propositions cannot be sustained. There is nothing inconsistent in joining with the denial of having committed a trespass, an averment of facts which, if true, as for instance, a license or a lawful condemnation, controverts the averment of no trespass. Nor did these denials shift the burden of proof. As to the second proposition above, it is true that-where parties are present or assist in the commission of a trespass, all who participate in it are liable, either jointly or severally, but in the case at bar when plaintiffs closed in chief there was a total failure of evidence connecting either the city of Webster Groves or defendant Hart with any trespass upon this property, so that the demurrer to the evidence, so far as they were concerned and as-the evidence then stood, was properly sustained.

The second point made is that the court erred in the admission of defendants’ Exhibit “No. 1,” in evidence, for the reason, as it is alleged that one of the plaintiffs in the case, Mrs. Kate Ewen, is not shown, either by this exhibit or by any other evidence to have been connected with that paper or assented to its execution. This Exhibit “No. 1” referred to is a communication addressed to Mr. Hart, the mayor of the city of Webster Groves by Mr. McMahon, the contractor for the construction of the sewer, in which Mr. McMahon sets out that his contract calls for the placing of the ground over the ditches in which the sewers are laid in as good condition as before work was begun, and that “in regard to the laying of the sewers through the properties of J. C. Davison and M. Ewexi in ‘Block 18’—I will remove all spauls (spalls) from premises, level all ditches, and repair all damage caused to fences or property, ‘including the replacing of any fruit trees that may be damaged by the work or workmen, to the satisfaction of yourself and the sewer commissioner.” Below this was a note addressed to Messrs. J. D. Davison and M. Ewen, signed by the mayor, in which he writes: “I think this statement should he satisfactory to you both and should remove any prejudice against the sewer work being done.” On the other side of this paper* was written after the date: ‘ ‘ This agreement is satisfactory to me, ’ ’ and this is signed by Messrs. J. D. Davison and M. Ewen.

It was in evidence that there was a controversy between the city authorities and the owners of lots in this block about the construction of this sewer through their premises and at a conference between the parties, at which plaintiff Mathias Ewen was present, the above agreement was signed.

The objection on the part of learned counsel for plaintiffs in error to the reception of this in evidence and to its probative value, is that the plaintiff, Mrs. Kate Ewen, had not signed it. It is stated in the abstract that plaintiffs, husband and wife, “through deeds vesting title by entirety in both plaintiffs” to the lots had instituted this suit and it is alleged, in the statement and argument of counsel for plaintiffs,- that this had been proved. We are compelled to say, on a very careful reading of the testimony as abstracted by that learned counsel, that there is nothing whatever in the testimony to sustain this contention. The nearest approach to it occurs in the testimony of the plaintiff, Mr. Ewen, who, under direct examination, stated he was 61 years old; lived in Webster Groves; had lived there over four years, and he then says: “We own four lots in Tuxedo boulevard, and two lots on Clara avenue—lots 29, 30 and 31, situate in block number 18.” That is no proof of title in himself and wife and is the only testimony in the whole record where the word “we” occurs, with reference to the ownership of the lots. It is not even alleged in the petition, or in evidence, that plaintiffs were husband and wife, so that who “we” refers to is a matter of mere guess and conjecture. Moreover in the examination of witnesses, these lots were continually referred to as the “lots of Mr. Ewen. ’ ’ Mrs. Ewen was a witness but was not asked if she was the wife of plaintiff Ewen; did not testify to that effect and made no statement whatever in regard to ownership; did not refer in any way to the property as property in which she was interested. A1L that her testimony amounts to is that she had never signed this paper or consented to- the construction of this sewer. Counsel for plaintiffs himself, in rebuttal and in examination of a witness, Davison, asked him to tell the court and jury if he was acz quainted with the lay of the land there “of Mr. Ewen’s property.” Further examining this same witness, that counsel asked him to look at the paper which was before him and to tell the court whether or not he had ever discussed with a Mr. Jarvis “the lots of Mr. Ewen individually.” The witness asked if he meant of Mr. Ewen, and counsel said, “Well, the general property.” Counsel then asked that witness: “What is the valuation of Mr. Ewen’s property?” This same line of inquiry on the part of counsel himself appears all through the testimony, so that there is absolutely no evidence whatever in the case that plaintiff Kate Ewen had any interest whatever in this property. Whether this paper which was offered and read in evidence had been signed by Mrs. Ewen, or whether she had consented to the construction of the sewer through the property, is entirely immaterial, as far as the evidence of any title in her is concerned.

Over and above this, however, that evidence of consent or permit, signed by Mr. Ewen alone is good and admissible as against both plaintiffs. Assuming, as stated by the learned counsel for plaintiffs, that the title to these lots was in the plaintiffs, husband and wife, as an estate in entirety, it does not follow that this license or permit, which the husband undoubtedly gave to the contractor here (McMahon) to enter upon the land and construct the sewer, is void as against the husband or wife, because not signed by the wife. Nor is it true that it was necessary for the wife to join her husband in that license. “At common law the right to the possession and control of the joint estate during the lives of the husband and wife is in the husband, the same as when the wife is sole seized; and this right of the husband is not affected by statutes enabling married women to hold and dispose of their property as if sole, unless expressly so stated; but he cannot defeat the right of the wife in the estate on surviving him.” [3 Kerr on Real Property (Ed. 1895), sec. 1976.]

In a very careful and thorough consideration of this question, our Supreme Court, speaking through Judge Sherwood, in Hall v. Stephens, 65 Mo. 670, commencing at page 676, after stating that, “ Husband and wife, at common law, to whom a grant or devise was made took per toivb et non per my, and the survivor took the whole, ’ ’ has said: Our statute has wrought no change in this particular, as has been expressly and repeatedly adjudged. Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Shroyer v. Nickell, 55 Mo. 264. ’ ’ This is reiterated By our Supreme Court in Frost v. Frost, 200 Mo. 474, 98 S. W. 527, where Judge Valliant, delivering the opinion of the court, referring to Hall v. Stephens, supra, and First National Bank of Plattsburg v. Fry, 168 Mo. 492, 68 S. W. 348, holds that the common law doctrine of estates in entirety is the law in this State. In Frost v. Frost, supra, it is said (l. c. 481): “ Modern legislation has done much to destroy the unity of husband and wife, yet in spite of such legislation it has been held in this State and elsewhere that estates in entirety remain as at common law.” So that the husband undoubtedly had a right to grant this license or permission to make this entry and it is certainly good as against both husband and wife during their joint lives; if the wife should die before her husband, it is absolute as against the husband.

The defendant McMahon, entering upon the premises and constructing the sewer under the sanction of the husband, if he did so, cannot be held to be a trespasser and that applies to the other defendants, even assuming that there was evidence that they entered upon the lots.

The third, fourth and fifth assignments are to the introduction in evidence of certain records of the city of Webtser Groves, relating to the construction of this sewer and condemnation of the land through which it was passed. We see no error in the action of the court in admitting these records in evidence.

The sixth point made is that the court erred in refusing three instructions asked by plaintiffs. The first, in substance, undertook to tell the jury that if it be- . lieved that defendants jointly or severally entered upon the premises of plaintiffs in the month of March, 1908, and excavated and laid a sewer diagonally through the lots in question without rendering plaintiffs adequate compensation therefor, and that if the jury further believed from the evidence that the sewers are now constructed and running through the lots, the jury should take into account the way in which the sewer runs and the fact that it creates an easement of the city of Webster Groves in the lots, and that in arriving at its verdict the jury will take into account the fact that the lots are damaged for building purposes and give due consideration to the fact as to whether or not the lots can be used for building purposes, and' if the jury found that the total building-value is taken away by the sewer and easement running through them, the jury will fix the damages at such value as it may believe is reasonable compensation for the injuries. This instruction purports to cover the whole case and is defective for many reasons, mainly in that it entirely leaves out of view the issues presented by the pleadings and evidence, that the entry upon the land and construction of the sewer was under either a valid ordinance of condemnation or by permission of the plaintiff.

The court was asked by the second instruction to direct the jury, “that this is an action against three defendants, charging a joint trespass on the real estate of the plaintiffs, and that the defendants’ answer is that the defendant, the city of Webster Groves, duly ’ condemned the right-of-way for the sewer described in plaintiffs’ petition, and defendants answer that as a defense the property was duly condemned, if it appears that a trespass has been committed, that all who encouraged, advised, or assisted in the trespass at the time the act was committed are guilty, whether they were present or not.-’ ’

As the court had already instructed that there was no evidence against the city and Mr. Hart, the Mayor, this instruction could not be given; moreover, it omits the defense of permission.

The third instruction asked by plaintiffs was to the effect that the burden of proving condemnation was on plaintiff. We see no reversible error in the refusal of this instruction. As touching all the instructions asked by plaintiff and refused, we see no error to the prejudice of appellant. The case was fairly submitted to the jury.

The seventh point is that the court committed error in giving instructions numbered 2 and 4 at the instance of defendants. We find no error in these instructions. They were correct statements of the law, warranted by the facts in the case.

The final point made is that the instruction given by the court of its own motion is erroneous. That instruction told the jury that if it believed from the evidence that before and at the time of the construction of the sewer across the premises, plaintiffs were in actual, peaceable possession of the lots described, and that without the consent of plaintiffs or either of them, defendants entered upon their premises and excavated a trench or trenches and laid a sewer pipe diagonally through the lots, they should find for plaintiffs and against the defendant John J. McMahon, and that in arriving at the damages, if any, sustained by plaintiffs they would take into account the diminution of value, if any, by reason of the laying and construction of such sewer.

If anybody can complain of this instruction it is McMahon, the defendant in error. As Mr. McMahon was the only defendant left in the case, it was proper, in directing a finding for plaintiffs, to direct it to be made against McMahon alone. Surely this instruction, given by the court at its own motion, was very favorable to plaintiffs, more so than they were entitled to have. Certainly they are in no condition to complain of it.

The verdict in the case is supported by substantial evidence. Even if all the testimony as to the condemnation of the right of way is excluded, the evidence as to entry having been made and the work having been done under the permission of Mr. Ewen is certainly strong and substantial, if not conclusive, and sufficient, if believed by the jury, to support the verdict.

We find no reversible error to the prejudice of plaintiffs and the judgment of the circuit court is. affirmed.

Nortoni and Allen, JJ., concur.