Layman v. Southwestern Bell Telephone Co.

554 S.W.2d 477 (Mo. Ct. App. 1977)

What's Going On?

Plaintiff appeals from a decision for Defendants holding that Defendants' affirmative defense of a right of entry by easement did not need to be pleaded in Defendant's answer in order to be admissible at trial in Plaintiff's action for trespass.

Who's Who?

Plaintiff       :

Eileen Layman – owner of property upon which Defendants dug a trench and laid telephone wires.

Defendants :

Southwestern Bell Telephone Co. – telephone company that contracted with co-defendant Wright Tree Service to install telephone wires on Plaintiff's property.
Wright Tree Service of Iowa, Inc. – company that dug a trench for the installation of telephone wires on Plaintiff's property.

Facts:

Plaintiff Eileen Layman owned land upon which Defendant Wright Tree Service of Iowa, Inc. dug a trench, without Plaintiff's consent, destroying trees in the process. Defendant Wright also installed telephone wires in the trench and covered the wires under contract with Defendant Southwestern Bell Telephone Co. Plaintiff brought suit seeking $7,500 in damages as the result of depreciation in her property's value due to Defendants' alleged trespass, and $2,000 in punitive damages due to the willful and forceful nature of Defendants' acts. Defendant Southwestern Bell pleaded a general denial, but did not plead an affirmative defense of easement to Plaintiff's trespass claim. Defendant Bell contended that it had received an assignment of an easement originally executed by owners of the land prior to the conveyance to Plaintiff, and that Plaintiff had given permission to Defendants to install the wires across her land. Defendant Bell offered the recorded easement as evidence. The trial court accepted the easement into evidence over Plaintiff's objection, which was based on the fact that Defendant Bell had not pleaded an affirmative defense of easement. The trial court found for Defendants. Plaintiff appeals.

Issue:

In an action for trespass, is a right of entry by easement an affirmative defense that must be pleaded in the answer?

Decision:

Yes. Missouri Rule of Civil Procedure 55.08[, which is similar to FRCP 8(c),] requires matters constituting an affirmative defense to be pleaded in a pleading preceding the complaint. In determining what defenses must be affirmatively pleaded as a condition to the admissibility of such evidence at trial, the applicable test is whether the defendant intends to rest his defense upon some fact, not included in the allegations, that is necessary to support the plaintiff's case. If the defendant presents an affirmative defense, the defense must be set forth in his answer. In this case, Defendant Bell raises an affirmative defense of a positive right, in the form of an easement, to enter and disturb the possessory rights of Plaintiff. A right to disturb Plaintiff's possessory rights would indisputably have to be proven by some form of evidence. Therefore, in this action for trespass, Defendant Bell was obligated to plead and prove the matters in justification of its trespass. Plaintiff's objection to the introduction of the easement evidence should have been sustained because Defendant Bell failed to plead an affirmative defense. Reversed and remanded.

Basic Rule:

A party must plead an affirmative defense if evidence establishing the affirmative defense is to be admissible at trial.

Terms:

Easement :

A right to make use of or control land, or the space above or below that land, for a specific purpose.

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