Mississippi Supreme Court, 1939

Goodman v. Long Funeral Home

Mississippi Supreme Court · Decided February 13, 1939 · McGeh

186 So. 313; 184 Miss. 851; 1939 Miss. LEXIS 57 (Southern Reporter)

Counsel

Augustin Magruder, of Starkville, for appellants. Quoting from 26 R.C.L. 957, Trespass: "But one having merely an easement over land cannot maintain trespass for an injury to or disturbance in the enjoyment thereof, his possession being inadequate." Chlonpek v. Perotka, 89 Wis. 551 , 62 N.W. 537, 46 A.S.R. 858; Lacoste v. Pipkin, 13 S. M. 590; Brown v. Thomas, 26 Miss. 335 ; Gathings v. Miller, 76 Miss. 651 , 24 So. 974; Houston Bros. v. Lenhart, 101 So. 289; Hodges v. Town of Drew, 159 So. 298 , 172 Miss. 668 . Could there be any question that in this case, had the appellants committed even gross and malicious trespass to the vacant Odd Fellows property, the right to recover therefor was vested in the Lodge rather than in appellees, who availed themselves of no more than a permissive easement? The procedure of appellee J.R. Long in making complaint to the Lodge shows that he, himself, recognized that the Lodge, and not he, had the very rights for whose trespass recovery was sought under Count I. Brown v. Thomas, 26 Miss. 337 ; Gathings v. Miller, 76 Miss. 651 , 24 So. 974; Houston Bros. v. Lenhart, 101 So. 289. Unless this array of cases, above presented, have been erroneously applied throughout, it would seem to be the positive rule in Mississippi, as elsewhere, that an alleged trespass to realty cannot be predicated on any permissive user, easement, or self-asserted "privilege;" and that the directed verdict on Count I should have been entered at the conclusion of plaintiff's testimony; and that not having been done, that the requested peremptory instruction on Count I should have been given. In making out their case in chief, appellees offered no testimony to show any negligence of defendants respecting the freezing of the water pipe. The pipe was there. The pipe burst. Other than that, appellee Long did not testify in chief on the point, except to say that appellees quit work (and hence quit using water from the pipe) two or three days before the freeze. Thus appellees relied as to this proposition on the doctrine of res ipsa loquitur. That this doctrine, one of negligence per se, in leaving a water pipe like the one in question, has no application, is clearly established by numerous cases. N. W. Ry. Co. v. Amicon Fruit Co., 269 Fed. 559, 14 A.L.R. 547; Losee v. Buchanan, 51 N.Y. 476 , 10 Am. Rep. 623; Bernhard v. Reeves, 6 Wn. 424 , 33 P. 873; Causey v. Norwood, 156 So. 592 . Negligence must be shown, and is not to be presumed, in order to establish liability against a defendant for damages resulting from a burst water pipe under the facts herein presented. And in the case at bar absolutely no testimony of negligence was introduced. Daniel Bates, of Starkville, for appellee. Answering the appellants' brief in the order in which they complain, let it be said that Count I is not one of trespass on an easement, but is trespass on property in possession of appellees and which appellees had improved, and to which appellants had absolutely no right. The only instruction on this count requested by, and given to, appellees restricts recovery to that of damages to the lot, and excluding any recovery relating to interference with the easement across said lot. And this instruction also put in issue the fact of occupancy by the appellees. Therefore, this appeal does not involve a recovery for damage to an easement, such as the roadway that passed by the back door of appellees' leased premises. It was a recovery for an interference with appellees' right of possession to the entire lot. 26 R.C.L. 955; 30 L.R.A. (N.S.) 254; 46 L.R.A. (N.S.) 487. We contend that appellants have cited no cases in point, since the question of an interference with the right of possession is not involved in any of them. However, in Hodges v. Town of Drew, 159 So. 298 , cited by appellant, an interference with enjoyment, use and possession was involved, and the court, speaking through Justice ANDERSON said: "It is now generally held by the courts that lawful possession of land, although unaccompanied by title, is sufficient to support an action for damages for interference with the lawful enjoyment of the premises by the person in possession." 46 C.J. 738, sec. 318 (3) and (4). Appellants contend that there was no showing of negligence by appellees sufficient to support a verdict on Count Two, and that a recovery thereon relied upon the doctrine of res ipsa loquitur. Appellants are wrong on both these contentions. As to the first contention of appellants, appellees showed all conditions in detail that occasioned the water damage; that the water was "on"; the holes in the wall, and that appellants exposed the pipe, on top of the ground, charged with water under high pressure when a freeze was impending. This involved, as to negligence, a question of fact for the jury, which was submitted under proper instructions, under the authority of Sec. 512, Code of 1930, which provides: "All questions of negligence and contributory negligence shall be for the jury to determine, etc." And why should appellees have relied on the doctrine of res ipsa loquitur? Appellees not only knew the fact causing the damage, but showed them by the evidence. It was not a case for application of that doctrine, and appellees did not rely upon it in the lower court, and do not here. Weaver Mercantile Co. v. Therman, 68 W. Va. 530 , 33 L.R.A. (N.S.) 1061. Argued orally by Augustin Magruder, for appellant.

Opinion of the Court

*855 McGeh.ee, J.,

delivered opinion of the court.

The appellee was in possession of certain leased premises belonging to the Odd Fellows Lodge at Starkville, fronting on Main Street. The premises are described in the lease as the first or ground floor of the building. The proof disclosed that on account of the elevation of the lot where it fronted on Main Street, the building was accessible only from the rear for use in the operation of a funeral home business therein. While the lease did not expressly by its terms cover the vacant part of the lot in the rear, the right to 'use the same was necessarily granted by implication as being essential to the enjoyment of the premises particularly described. The proof was sufficient for the submission of the case to the jury on the question as to whether or not the appellants trespassed upon that part of the vacant premises other than a passage-way common to this and other properties by piling brick and other building materials thereon so as to obstruct passage to a warehouse used in connection with the operation of the funeral home and to otherwise interfere with the rights of the appellee as the lessee thereof; and the proof was likewise sufficient to warrant the amount of damages awarded against the appellants on account thereof.

In support of the second count of the declaration, it was shown that the appellants, while removing the debris of their own building which had been burned on an adjoining lot, caused certain holes to be made in the party wall by the removal of the ends of floor-joists, etc., therefrom; and that knowing of this condition the appellants, in the work of restoring the building, negligently allowed a water-pipe to burst alongside of these holes in the party wall while the pipe was elevated above the ground during a severe freeze, and with the result that the water ran into the ground floor of the Odd Fellows Building occupied by appellee and greatly damaged a stock of caskets and other funeral home accessories. The proof *856 as to the damage under this count of the declaration also sustains the amount awarded by the jury thereon.

Where a water-pipe is left exposed to the elements above the ground during freezing weather, charged with water, so as to negligently damage the property of another, a different rule as to liability applies than where there has been a bursting of underground water-pipes, as in those cases which have arisen between landlord and tenant on account thereof. Negligence may cause the damage in the first instance, whereas, the exercise of reasonable care would not likely prevent it in the other.

Referring again to the damage recovered under the first count of the declaration, numerous authorities are cited by the appellants to sustain a contention that since the appellee’s lease did not cover the vacant portion of the lot at the rear of the building, its use thereof was only permissive and constituted at law a mere easement, for the protection of which an action of trespass would not lie, we are of the opinion that a sufficient answer to this contention in the case at bar is that the lessee was in actual and rightful possession and was using the vacant portion of the lot under the rights granted by necessary implication in the lease; and was entitled to protection against the depredations of others in the enjoyment thereof.

We do not think that the other assignments of error are of any merit. The judgment of the court below will therefore be affirmed.

Affirmed.

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