Supreme Court

No. 95-1028.

(Also reported in 563 N.W.2d 154.)

Harvey F. Jacque and Lois C. Jacque, Plaintiffs-­Appellants-Petitioners, v. Steenberg Homes, Inc., Defendant-Respondent.

Decided May 16, 1997.

Oral argument January 29, 1997. —

For the plaintiffs-appellants there were briefs by Patrick A. Dewane, Jr. And Dewane, Dewane, Rummer, Lambert & Fox, Manitowoc and oral argument by Pat­rick A. Dewane, Jr.

For the defendant-respondent there were briefs by Mark J. Mingo, Daniel L. Zitzer and Mingo & Yankala, S.C., Milwaukee and oral argument by Mark Mingo.

WILLIAM A. BABLITCH, J.

1. Steenberg Homes had a mobile home to deliver. Unfortunately for Harvey and Lois Jacque (the Jacques), the easiest route of delivery was across their land. Despite ada­mant protests by the Jacques, Steenberg plowed a path through the Jacques' snow-covered field and via that path, delivered the mobile home. Consequently, the Jacques sued Steenberg Homes for intentional tres­pass. At trial, Steenberg Homes conceded the intentional trespass, but argued that no compensatory damages had been proved, and that punitive damages could not be awarded without compensatory damages. Although the jury awarded the Jacques $1 in nominal damages and $100,000 in punitive damages, the circuit court set aside the jury's award of $100,000. The court of appeals affirmed, reluctantly concluding that it could not reinstate the punitive damages because it was bound by precedent establishing that an award of nominal damages will not sustain a punitive damage award. We conclude that when nominal damages are awarded for an intentional trespass to land, punitive damages may, in the discretion of the jury, be awarded. We further conclude that the $100,000 awarded by the jury is not excessive. Accordingly, we reverse and remand for reinstatement of the punitive damage award.

I.

2. The relevant facts follow. Plaintiffs, Lois and Harvey Jacques, are an elderly couple, now retired from farming, who own roughly 170 acres near Wilke's Lake in the town of Schleswig. The defendant, Steenberg Homes, Inc. (Steenberg), is in the business of selling mobile homes. In the fall of 1993, a neighbor of the Jacques purchased a mobile home from Steenberg. Delivery of the mobile home was included in the sales price.

3. Steenberg determined that the easiest route to deliver the mobile home was across the Jacques' land. Steenberg preferred transporting the home across the Jacques' land because the only alternative was a private road which was covered in up to seven feet of snow and contained a sharp curve which would require sets of "rollers" to be used when maneuvering the home around the curve. Steenberg asked the Jac­ques on several separate occasions whether it could move the home across the Jacques' farm field. The Jac­ques refused. The Jacques were sensitive about allowing others on their land because they had lost property valued at over $10,000 to other neighbors in an adverse possession action in the mid-1980's. Despite repeated refusals from the Jacques, Steenberg decided to sell the mobile home, which was to be used as a summer cottage, and delivered it on February 15, 1994.

4. On the morning of delivery, Mr. Jacque observed the mobile home parked on the corner of the town road adjacent to his property. He decided to find out where the movers planned to take the home. The movers, who were Steenberg employees, showed Mr. Jacque the path they planned to take with the mobile home to reach the neighbor's lot. The path cut across the Jacques' land. Mr. Jacque informed the movers that it was the Jacques' land they were planning to cross and that Steenberg did not have permission to cross their land. He told them that Steenberg had been refused permission to cross the Jacques' land.

5. One of Steenberg's employees called the assistant manager, who then came out to the Jacques' home. In the meantime, the Jacques called and asked some of their neighbors and the town chairman to come over immediately. Once everyone was present, the Jac­ques showed the assistant manager an aerial map and plat book of the township to prove their ownership of the land, and reiterated their demand that the home not be moved across their land.

6. At that point, the assistant manager asked Mr. Jacque how much money it would take to get per­mission. Mr. Jacque responded that it was not a question of money; the Jacques just did not want Steenberg to cross their land. Mr. Jacque testified that he told Steenberg to "[F]ollow the road, that is what the road is for." Steenberg employees left the meeting with­out permission to cross the land.

7. At trial, one of Steenberg's employees testi­fied that, upon coming out of the Jacques' home, the assistant manager stated: "I don't give a—what [Mr. Jacque] said, just get the home in there any way you can." The other Steenberg employee confirmed this tes­timony and further testified that the assistant manager told him to park the company truck in such a way that no one could get down the town road to see the route the employees were taking with the home. The assistant manager denied giving these instructions, and Steenberg argued that the road was blocked for safety reasons.

8. The employees, after beginning down the private road, ultimately used a "bobcat" to cut a path through the Jacques' snow-covered field and hauled the home across the Jacques' land to the neighbor's lot. One employee testified that upon returning to the office and informing the assistant manager that they had gone across the field, the assistant manager reacted by giggling and laughing. The other employee confirmed this testimony. The assistant manager dis­puted this testimony.

9. When a neighbor informed the Jacques that Steenberg had, in fact, moved the mobile home across the Jacques' land, Mr. Jacque called the Manitowoc County Sheriffs Department. After interviewing the parties and observing the scene, an officer from the sheriffs department issued a $30 citation to Steenberg's assistant manager.

10. The Jacques commenced an intentional tort action in Manitowoc County Circuit Court, Judge Allan J. Deehr presiding, seeking compensatory and punitive damages from Steenberg. The case was tried before a jury on December 1, 1994. At the completion of the Jacques' case, Steenberg moved for a directed verdict under Wis. Stat. § 805.14(3) (1993-94).1 For purposes of the motion, Steenberg admitted to an intentional trespass to land, but asked the circuit court to find that the Jacques were not entitled to compensatory dam­ages or punitive damages based on insufficiency of the evidence. The circuit court denied Steenberg's motion and the questions of punitive and compensatory dam­ages were submitted to the jury. The jury awarded the Jacques $1 nominal damages and $100,000 punitive damages. Steenberg filed post-verdict motions claim­ing that the punitive damage award must be set aside because Wisconsin law did not allow a punitive damage award unless the jury also awarded compensatory damages. Alternatively, Steenberg asked the circuit court to remit the punitive damage award. The circuit court granted Steenberg's motion to set aside the award. Consequently, it did not reach Steenberg's motion for remittitur.

11. This case presents three issues: (1) whether an award of nominal damages for intentional trespass to land may support a punitive damage award and, if so; (2) whether the law should apply to Steenberg or should only be applied prospectively and, if we apply the law to Steenberg; (3) whether the $100,000 in puni­tive damages awarded by the jury is excessive.

12. The first issue is a question of law which we review de novo. The second issue involves the prospec­tive application of a judicial holding which is a question of policy to be determined by this court. Harmann v. Hadley, 128 Wis. 2d 371, 378, 382 N.W.2d 673 (1986). The court allows prospective application for the pur­pose of mitigating hardships that may occur with the retroactive application of new rules. Colby v. Columbia County, 202 Wis. 2d 342, 364, 550 N.W.2d 124 (1996). Finally, where, as here, the circuit court did not pro­vide a reasoned analysis supporting or rejecting remittitur, in order to determine whether to remit the punitive damages awarded, a reviewing court must review the entire record as a matter of first impression and determine whether, in its judgment, the damage award is excessive. Fahrenberg v. Tengel, 96 Wis. 2d 211, 230, 291 N.W.2d 516 (1980).

II.

13. Before the question of punitive damages in a tort action can properly be submitted to the jury, the circuit court must determine, as a matter of law, that the evidence will support an award of punitive dam­ages. Lievrouw v. Roth, 157 Wis. 2d 332, 344, 459 N.W.2d 850 (Ct. App. 1990). To determine whether, as a matter of law, the question of punitive damages should have been submitted to the jury, this court reviews the record de novo. Bank of Sun Prairie v. Esser, 155 Wis. 2d 724, 736, 456 N.W.2d 585 (1990); Lievrou, 157 Wis. 2d at 344.

14. Steenberg argues that, as a matter of law, punitive damages could not be awarded by the jury because punitive damages must be supported by an award of compensatory damages and here the jury awarded only nominal and punitive damages. The Jac­ques contend that the rationale supporting the compensatory damage award requirement is inapposite when the wrongful act is an intentional trespass to land. We agree with the Jacques.

15. Our analysis begins with a statement of the rule and the rationale supporting the rule. First, we consider the individual and societal interests impli­cated when an intentional trespass to land occurs. Then, we analyze the rationale supporting the rule in light of these interests.

16. The general rule was stated in Barnard v. Cohen, 165 Wis. 417, 162 N.W.2d 480 (1917), where the question presented was: "In an action for libel, can there be a recovery of punitory damages if only nominal compensatory damages are found?" With the bare assertion that authority and better reason supported its conclusion, the Barnard court said no. Id. at. 418. Barnard continues to state the general rule of punitive damages in Wisconsin. See Tucker v. Marcus, 142 Wis. 2d 425, 438-40, 418 N.W.2d 818 (1988). The rationale for the compensatory damage requirement is that if the individual cannot show actual harm, he or she has but a nominal interest, hence, society has little interest in having the unlawful, but otherwise harmless, conduct deterred, therefore, punitive damages are inappropri­ate. Jacque v. Steenberg Homes, Inc., 201 Wis. 2d 22, 548 N.W.2d 80 (Ct. App. 1996); Maxwell v. Kennedy, 50 Wis. 645, 649, 7 N.W. 657 (1880).

17. However, whether nominal damages can support a punitive damage award in the case of an intentional trespass to land has never been squarely addressed by this court.2 Nonetheless, Wisconsin law is not without reference to this situation. In 1854 the court established punitive damages, allowing the assessment of "damages as a punishment to the defen­dant for the purpose of making an example." McWilliams v. Bragg, 3 Wis. 377, 378 (1854).3 The McWilliams court related the facts and an illustrative tale from the English case of Merest v. Harvey, 128 Eng. Rep. 761 (C.P. 1814), to explain the rationale underly­ing punitive damages.

18. In Merest, a landowner was shooting birds in his field when he was approached by the local magis­trate who wanted to hunt with him. Although the landowner refused, the magistrate proceeded to hunt. When the landowner continued to object, the magis­trate threatened to have him jailed and dared him to file suit. Although little actual harm had been caused, the English court upheld damages of 500 pounds, explaining "in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?" McWil­liams, 3 Wis. 377 at 380.

19. To explain the need for punitive damages, even where actual harm is slight, McWilliams related the hypothetical tale from Merest of an intentional tres­passer:

Suppose a gentleman has a paved walk in his pad­dock, before his window, and that a man intrudes and walks up and down before the window of his house, and looks in while the owner is at dinner, is the trespasser permitted to say "here is a halfpenny for you which is the full extent of the mischief I have done." Would that be a compensation? I cannot say that it would be... .

McWilliams, 3 Wis. At 380-81. Thus, in the case estab­lishing punitive damages in this state, this court recognized that in certain situations of trespass, the actual harm is not in the damage done to the land, which may be minimal, but in the loss of the individ­ual's right to exclude others from his or her property and, the court implied that this right may be punished by a large damage award despite the lack of measura­ble harm.

20. Steenberg contends that the rule estab­lished in Barnard prohibits a punitive damage award, as a matter of law, unless the plaintiff also receives compensatory damages. Because the Jacques did not receive a compensatory damage award, Steenberg con­tends that the punitive damage award must be set aside. The Jacques argue that the rationale for not allowing nominal damages to support a punitive dam­age award is inapposite when the wrongful act involved is an intentional trespass to land. The Jacques argue that both the individual and society have significant interests in deterring intentional trespass to land, regardless of the lack of measurable harm that results. We agree with the Jacques. An examination of the indi­vidual interests invaded by an intentional trespass to land, and society's interests in preventing intentional trespass to land, leads us to the conclusion that the Barnard rule should not apply when the tort support­ing the award is intentional trespass to land.

21. We turn first to the individual landowner's interest in protecting his or her land from trespass. The United States Supreme Court has recognized that the private landowner's right to exclude others from his or her land is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Dolan v. City of Tigard, 512 U.S. 374, 384 (1994); (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)). Accord Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982).4 This court has long recognized "[e]very person[’s] constitutional right to the exclusive enjoy­ment of his own property for any purpose which does not invade the rights of another person." Diana Shoot­ing Club v. Lamoreux, 114 Wis. 44, 59 (1902) (holding that the victim of an intentional trespass should have been allowed to take judgment for nominal damages and costs). Thus, both this court and the Supreme Court recognize the individual's legal right to exclude others from private property.

22. Yet a right is hollow if the legal system provides insufficient means to protect it. Felix Cohen offers the following analysis summarizing the relation­ship between the individual and the state regarding property rights:

[T]hat is property to which the following label can be attached:

To the world:

Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private Citizen

Endorsed: The state

Felix S. Cohen, Dialogue on Private Property, IX Rutgers Law Review 357, 374 (1954). Harvey and Lois Jacque have the right to tell Steenberg Homes and any other trespasser, "No, you cannot cross our land." But that right has no practical meaning unless protected by the State. And, as this court recognized as early as 1854, a "halfpenny" award does not constitute state protection.

23. The nature of the nominal damage award in an intentional trespass to land case further supports an exception to Barnard. Because a legal right is involved, the law recognizes that actual harm occurs in every trespass. The action for intentional trespass to land is directed at vindication of the legal right. W. Page Keeton, Prosser and Keeton on Torts, § 13 (5th ed. 1984). The law infers some damage from every direct entry upon the land of another. Id. The law recognizes actual harm in every trespass to land whether or not compensatory damages are awarded. Id. Thus, in the case of intentional trespass to land, the nominal dam­age award represents the recognition that, although immeasurable in mere dollars, actual harm has occurred.

24. The potential for harm resulting from intentional trespass also supports an exception to Bar­nard. A series of intentional trespasses, as the Jacques had the misfortune to discover in an unrelated action, can threaten the individual's very ownership of the land. The conduct of an intentional trespasser, if repeated, might ripen into prescription or adverse pos­session and, as a consequence, the individual landowner can lose his or her property rights to the trespasser. See Wis. Stat. § 893.28.

25. In sum, the individual has a strong interest in excluding trespassers from his or her land. Although only nominal damages were awarded to the Jacques, Steenberg's intentional trespass caused actual harm. We turn next to society's interest in protecting private property from the intentional trespasser.

26. Society has an interest in punishing and deterring intentional trespassers beyond that of pro­tecting the interests of the individual landowner. Society has an interest in preserving the integrity of the legal system. Private landowners should feel confi­dent that wrongdoers who trespass upon their land will be appropriately punished. When landowners have confidence in the legal system, they are less likely to resort to "self-help" remedies. In McWilliams, the court recognized the importance of "'prevent[ing] the prac­tice of dueling, [by permitting] juries [ ] to punish insult by exemplary damages.'" McWilliams, 3 Wis. at 381. Although dueling is rarely a modern form of self-help, one can easily imagine a frustrated landowner taking the law into his or her own hands when faced with a brazen trespasser, like Steenberg, who refuses to heed no trespass warnings.

27. People expect wrongdoers to be appropri­ately punished. Punitive damages have the effect of bringing to punishment types of conduct that, though oppressive and hurtful to the individual, almost invari­ably go unpunished by the public prosecutor. Kink v. Combs, 28 Wis. 2d 65, 135 N.W.2d 789 (1965). The $30 forfeiture was certainly not an appropriate punish­ment for Steenberg's egregious trespass in the eyes of the Jacques. It was more akin to Merest's "halfpenny." If punitive damages are not allowed in a situation like this, what punishment will prohibit the intentional trespass to land? Moreover, what is to stop Steenberg Homes from concluding, in the future, that delivering its mobile homes via an intentional trespass and pay­ing the resulting Class B forfeiture, is not more profitable than obeying the law? Steenberg Homes plowed a path across the Jacques' land and dragged the mobile home across that path, in the face of the Jac­ques' adamant refusal. A $30 forfeiture and a $1 nominal damage award are unlikely to restrain Steen­berg Homes from similar conduct in the future. An appropriate punitive damage award probably will.

28. In sum, as the court of appeals noted, the Barnard rule sends the wrong message to Steenberg Homes and any others who contemplate trespassing on the land of another. It implicitly tells them that they are free to go where they please, regardless of the land­owner's wishes. As long as they cause no compensable harm, the only deterrent intentional trespassers face is the nominal damage award of $1, the modern equivalent of Merest's halfpenny, and the possibility of a Class B forfeiture under Wis. Stat. § 943.13. We con­clude that both the private landowner and society have much more than a nominal interest in excluding others from private land. Intentional trespass to land causes actual harm to the individual, regardless of whether that harm can be measured in mere dollars. Conse­quently, the Barnard rationale will not support a refusal to allow punitive damages when the tort involved is an intentional trespass to land. Accord­ingly, assuming that the other requirements for punitive damages have been met, we hold that nominal damages may support a punitive damage award in an action for intentional trespass to land.

29. Our holding is supported by respected legal commentary. The Restatement (Second) of Torts sup­ports the proposition that an award of nominal damages will support an award of punitive damages in a trespass to land action:

The fact that the actor knows that his entry is without the consent of the possessor and without any other privilege to do so, while not necessary to make him liable, may affect the amount of damages recoverable against him, by showing such a com­plete disregard of the possessor's legally protected interest in the exclusive possession of his land as to justify the imposition of punitive in addition to nom­inal damages for even a harmless trespass, or in addition to compensatory damages for one which is harmful.

Restatement (Second) of Torts § 163 cmt. e (1979). The Restatement reiterates this position under the puni­tive damages section: nominal damages support an award of punitive damages "when a tort, such as tres­pass to land, is committed for an outrageous purpose, but no significant harm has resulted." Restatement (Second) of Torts § 908 cmt. c (1979).

30. Prosser also finds the compensatory dam­ages prerequisite unsupportable:

Since it is precisely in the cases of nominal damages that the policy of providing an incentive for plain­tiffs to bring petty outrages into court comes into play, the view very much to be preferred appears to be that of the minority which have held that there is sufficient support for punitive damages.

W. Page Keeton, et. al., Prosser and Keeton on the Law of Torts § 2, at 14 (5th ed. 1984) (citations omitted). A minority of other jurisdictions follow this approach. See, Annotation, Sufficiency of Showing of Actual Dam­ages to Support Award of Punitive Damages - Modern Cases, 40 A.L.R.4th 11, 36 (1985).

I­I­I.

31. Next we consider the effect of our holding on the parties before us. Steenberg argues that its reliance at trial on the well-established Barnard rule compels this court to either apply our holding prospec­tively, or grant a new trial.

32. Steenberg argues if we should hold, as we do, that punitive damages can be awarded with only a nominal damage award, our holding should not apply to them. Steenberg cites Colby, 202 Wis. 2d 342, for the proposition that a holding that departs from past pre­cedent should only be applied prospectively. Steenberg argues that because it relied on the well-established Barnard rule at trial, and our holding today recognizes an exception to the Barnard rule, today's holding should not apply to this case. Steenberg misunder­stands Colby and the doctrine of sunbursting.

33. Sunbursting5 is an exception to the general rule referred to as the "Blackstonian Doctrine." Fitz­gerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571, 575, 157 N.W.2d 595 (1968). This classic doctrine provides that a decision which overrules precedent is accorded retroactive effect. Thomas E. Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: "Pro­spective Overruling" or "Sunbursting", 51 Marq. L. Rev. 254 (1967-68).

34. At times, inequities will occur when a court departs from precedent and announces a new rule of law. In an effort to avoid inequity on these rare occa­sions, the court has recognized exceptions to the Blackstonian Doctrine and used the device of prospec­tive overruling, known as "sunbursting," to limit the effect of a newly announced rule when retroactive application would be inequitable.

35. Prospective application of a judicial holding is a question of policy to be determined by this court. Harmann, 128 Wis. 2d at 378. The court allows sunbursting for the purpose of mitigating hardships that may occur with the retroactive application of a new rule. Colby, 202 Wis. 2d at 364. This court will not sunburst absent a compelling judicial reason for doing so. Harmann, 128 Wis. 2d at 379 (citation omitted). No simple rule helps us determine the existence of a judi­cial reason for sunbursting. Id. Instead, the equities peculiar to a given rule or case determine the rule adopted by the court in each case.

36. Steenberg contends that its reliance on Barnard at trial creates a compelling judicial reason to sunburst. Steenberg explains that its trial strategy was dependent on the Barnard rule. Therefore, it con­tends that a holding in this case, recognizing an exception to the Barnard rule should only apply pro­spectively, i.e., not to Steenberg Homes. We disagree. We find Steenberg's contention that it relied on the Barnard rule misleading. Steenberg did not concede the intentional trespass until after the Jacques rested at trial. At this point, when overwhelming evidence clearly established Steenberg's intentional trespass on the Jacques' land, then and only then, did Steenberg rely on Barnard and concede intentional trespass. This type of "reliance" does not give rise to the inequity that sunbursting is designed to prevent.

37. Steenberg's reliance on the Barnard rule is not the type of reliance that normally forms the basis for sunbursting. The court does not prospectively apply a holding merely because of reliance on an old rule. Rolo v. Goers, 174 Wis. 2d 709, 723, 497 N.W.2d 724 (1993). Prospective application of a holding based on reliance on an old rule has occurred when there has been reliance on an overruled decision by a substantial number of persons and considerable harm or detriment could result to them. Id. See also Kojis v. Doctors Hospi­tal, 12 Wis. 2d 367, 107 N.W.2d 131, 107 N.W. 292 (1961) (abrogating charitable immunity); Holytz v. Mil­waukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962) (abrogating governmental immunity); Widell v. Holy Trinity Catholic Church, 19 Wis. 2d 648, 121 N.W.2d 249 (1963) (abrogating immunity of religious entity). When tort law is changed, the court is concerned about exposing many individuals and institutions to liability who would have obtained liability insurance had they known they would no longer enjoy immunity. Harmann, 128 Wis. 2d at 381. Steenberg does not claim that others will be adversely affected by our recogni­tion of an exception to the Barnard rule. Steenberg only refers to its own reliance, and to its own punishment.

38. The Jacques' interests also prevent us from sunbursting in this case. In determining whether hard­ship or injustice will occur, the court must also consider the effect of prospective application on the party who sought to change the law. Retroactivity is usually justi­fied as a reward for the litigant who has persevered in attacking an unsound rule. To refuse to apply the new rule here would deprive the Jacques of any benefit from their effort and expense in challenging the old rule which we now declare erroneous. That, we conclude, would be the greater injustice. Accordingly, we hold that the exception to Barnard that we recognize today shall be applied to Steenberg.

IV.

39. Finally, we consider whether the jury's $100,000 punitive damage award to the Jacques is excessive. In this case, the circuit court, finding that the issue was moot, rejected Steenberg's motion for remittitur without review. Because we conclude that the nominal damages awarded to the Jacques support the jury's punitive damage award, and because we con­clude that our holding today applies to Steenberg, the issue is not moot. Therefore, we review the $100,000 award to determine whether it is clearly excessive. We conclude that it is not. Accordingly, we do not order remittitur.

40. The award of punitive damages in a partic­ular case is entirely within the discretion of the jury. Notwithstanding the jury's broad discretion, the circuit court has the power to reduce the amount of punitive damages to an amount that it determines is fair and reasonable. Malco v. Midwest Aluminum Sales, 14 Wis. 2d 57, 65, 109 N.W.2d 516 (1961). We are reluctant to set aside an award merely because it is large or we would have awarded less. Fahrenberg v. Tengel, 96 Wis. 2d 211, 236, 291 N.W.2d 516 (1980). A jury's puni­tive damage award will not be disturbed unless the verdict is so clearly excessive as to indicate passion and prejudice. Fuchs v. Kupper, 22 Wis. 2d 107, 125 N.W.2d 360 (1963). When we review the record to determine whether a punitive damage award is excessive, the evi­dence must be viewed in the light most favorable to the plaintiff. Fahrenberg, 96 Wis. 2d at 231. A punitive damage award that is the product of a fair process is entitled to a strong presumption of validity. TXO, 509 U.S. at 457. Nonetheless, the Due Process Clause of the Fourteenth Amendment imposes substantive limits on the size of punitive damage awards. Management Comp. Serv. v. Hawkins, Ash, Baptie, 206 Wis. 2d 157, 557 N.W. 2d 67 (1996).

41. The Due Process Clause prohibits the court from imposing a "'grossly excessive'" punishment on a tortfeasor. BMW of North America, Inc. v. Gore, 116 S.Ct. 1589, 1592 (1996) (quoting TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 454 (1993). The Due Process Clause dictates that an individual receive fair notice not only of the conduct that will subject him or her to punishment, but also of the sever­ity of the penalty that a state may impose. Gore, 116 S.Ct. at 1598. Only when a punitive damage award can be fairly categorized as grossly excessive in relation to the State's legitimate interests in punishment and deterrence does it enter the zone of arbitrariness that violates the Due Process Clause. Id. at 1595.

42. The Supreme Court has recently clarified the three factors a court must consider when determin­ing whether a punitive damage award violates the Due Process Clause: (1) the degree of reprehensibility of the conduct; (2) the disparity between the harm or poten­tial harm suffered by the plaintiff and the punitive damage award; and (3) the difference between this remedy and the civil or criminal penalties authorized or imposed in comparable cases. Gore, 116 S.Ct. at 1598-99, 1603.

43. We turn first to the reprehensibility factor. The most important indicium of the reasonableness of a punitive damage award is the degree of reprehensi­bility of the defendant's conduct. Punitive damages should reflect the egregiousness of the offense. Id. at 1599. In other words, some wrongs are more blamewor­thy than others and the punishment should fit the crime. In this case, the "crime" was Steenberg's brazen, intentional trespass on the Jacques' land.

44. Steenberg's intentional trespass reveals an indifference and a reckless disregard for the law, and for the rights of others. At trial, Steenberg took an arrogant stance, arguing essentially that yes, we inten­tionally trespassed on the Jacques' land, but we cannot be punished for that trespass because the law protects us. We reject that position. We are further troubled by Steenberg's utter disregard for the rights of the Jac­ques. Despite numerous unambiguous refusals by the Jacques to allow Steenberg access to their land, Steenberg delivered the mobile home across the Jacques' land.

45. Furthermore, these deceitful acts were egregious; Steenberg Homes acted deviously. After the conversation in the Jacques' kitchen, the Jacques, their neighbors, and the town chairman were satisfied that the matter was resolved, and Steenberg would not tres­pass on the Jacques' land. Nevertheless, the Steenberg employees testified that as they walked out of the Jac­ques' home, the assistant manager told them to use any means to deliver the mobile home. This conduct is rep­rehensible. We conclude that the degree of reprehensibility of Steenberg's conduct supports the imposition of a substantial punitive award.

46. We now turn to the next factor in the Gore analysis: the disparity between the harm or potential harm suffered by the Jacques and the punitive damage award. Gore, 116 S.Ct. at 1601.

47. In Management Computer Services, this court concluded that a reasonable relationship between the amount of compensatory damages, the potential criminal penalties, and the punitive damage award is required. Management Comp. Serv., 206 Wis. 2d at 193. This requirement combines the second and third Gore factors. We address them separately.

48. We have expressly rejected the use of a fixed multiplier, either a fixed ratio of compensatory to punitive damages or of criminal fine to punitive dam­ages, to calculate the amount of reasonable punitive damages. Id. However, in the appropriate case, a com­parison of the compensatory damages and the punitive award is important. While a constitutional line ought not be marked by a simple mathematical formula, the proportionate rule for punitive damages is one factor in determining the reasonableness of the punitive dam­age award. Id. See James D. Ghiardi, Punitive Damages in Wisconsin, 1977 Wis. L.Rev. 753, 771.

49. When compensatory damages are awarded, we consider the ratio of compensatory to punitive dam­ages. This is so because compensatory damages represent the actual harm inflicted on the plaintiff. However, when nominal damages support a punitive damage award, use of a multiplier is of dubious assis­tance because the nominal damage award may not reflect the actual harm caused. If it did, the breathtak­ing 100,000 to 1 ratio of this case could not be upheld. However, in the proper case, a $1 nominal damage award may properly support a $100,000 punitive dam­age award where a much larger compensatory award might not. This could include situations where egre­gious acts result in injuries that are hard to detect or noneconomic harm that is difficult to measure. In these instances, as in the case before us, a mathematical bright line between the constitutional and the uncon­stitutional would turn the concept of punitive damages on its head.

50. Finally, we turn to the third factor in the Gore analysis: we compare the punitive damage award and the civil or criminal penalties that could be imposed for comparable misconduct. Gore, 116 S.Ct. at 1603. Since punitive damages are assessed for punish­ment, it is relevant to compare the punitive damage award to the maximum fine in the section of the Wis­consin Criminal Code that contains a similar offense. Meke v. Nicol, 56 Wis. 2d 654, 664, 203 N.W.2d 129 (1973). A reviewing court engaged in determining whether a punitive damages award is excessive should accord "'substantial deference' to legislative judg­ments concerning appropriate sanctions for the conduct at issue." Gore, 116 S.Ct. at 1603 (citation omitted).

51. We consider this factor largely irrelevant in the present case because the "conduct at issue" here was scarcely that contemplated by the legislative action. Steenberg received a citation for trespass to land under Wis. Stat. § 943.13, a Class B forfeiture. Wis. Stat. § 939.52(3)(b). Section 943.13(1)(b)provides that "[w]hoever. . . [e]nters or remains on any land of another after having been notified by the owner or occupant not to enter or remain on the premises" is subject to a Class B forfeiture. The maximum penalty for a Class B forfeiture is $1000. § 939.52(3)(b). Steen­berg's egregious conduct could scarcely have been contemplated by the legislature when it enacted this statute which provides a penalty for simply "entering or remaining" on the land of another. Here, not only did Steenberg Homes illegally enter and remain on the Jacques' land, first they plowed a path across the Jac­ques' field, then they transported a mobile home over the path. Furthermore, the statute failed to deter Steenberg's egregious misconduct. And we see no rea­son why the legislative penalty for simple trespass will deter future conduct by Steenberg. Without punitive damages, Steenberg has a financial incentive to tres­pass again.

52. Our concern for deterrence is guided by our recognition of the nature of Steenberg's business. Steenberg sells and delivers mobile homes. It is, there­fore, likely that they will again be faced with what was, apparently for them, a dilemma. Should they trespass and pay the forfeiture, which in this case was $30? Or, should they take the more costly course and obey the law? Today we alleviate the uncertainty for Steenberg Homes. We feel certain that the $100,000 will serve to encourage the latter course by removing the profit from the intentional trespass.

53. Punitive damages, by removing the profit from illegal activity, can help to deter such conduct. In order to effectively do this, punitive damages must be in excess of the profit created by the misconduct so that the defendant recognizes a loss. It can hardly be said that the $30 forfeiture paid by Steenberg significantly affected its profit for delivery of the mobile home. One hundred thousand dollars will.

54. Finally, a substantial punitive damage award serves to assure that tort claims involving egre­gious conduct will be prosecuted. By allowing punitive damages, the self interest of the plaintiff might lead to prosecution of a claim that might not otherwise be pur­sued. A $100,000 punitive damage award will not only give potential trespassers reason to pause before tres­passing, it will also give aggrieved landowners reason to pursue a trespass action.

55. In sum, although actual harm and criminal penalties have some relevance to the amount of puni­tive damages and may be factors in determining the reasonableness of the punitive damage award, we have not been willing in the past, and are not willing in this case, to adopt a mathematical formula for awarding such damages. Fahrenberg, 96 Wis. 2d at 235-36. Our consideration of the Gore factors leads us to the conclu­sion that the $100,000 punitive damages award does not excessively punish Steenberg Homes for its egre­gious conduct, to deter it from trespassing again, and to deter others who might be similarly tempted. The puni­tive award neither shocks our conscience, nor takes our breath away. On the contrary, it is the brazen conduct of Steenberg Homes that we find shocking, not the $100,000 punitive damages award.

56. In conclusion, we hold that when nominal damages are awarded for an intentional trespass to land, punitive damages may, in the discretion of the jury, be awarded. Our decision today shall apply to Steenberg Homes. Finally, we hold that the $100,000 punitive damages awarded by the jury is not excessive. Accordingly, we reverse and remand to the circuit court for reinstatement of the punitive damage award.

By the Court.—Reversed and remanded with direc­tions.

1

All future statutory references are to the 1993-94 volume unless otherwise indicated.

2

Although Steenberg cites Sunderman v. Warnken, 251 Wis. 471, 29 N.W.2d 496 (1947), for the proposition that the Barnard rule applies to a trespass case, we disagree. Barnard, 165 Wis. 417. In Sunderman, the court affirmed the order dis­missing the tenants action against the landlord for wrongful and illegal entry. The court held that "a landlord who entered the leased premises in order to make necessary repairs, as required by public officials" had not violated the lease, i.e., the court found that there had not been a wrongful entry. In light of this holding, any discussion of the Barnard rule was dicta. Sun­derman, 251 Wis. at 477.

3

Because McWilliams was an action of trespass for assault and battery, we cite it not for its precedential value, but for its reasoning.

4

We refer to these cases only to emphasize the nature of the Jacques' interest and, correspondingly, Steenberg's violation.

5

Judge Thomas Fairchild has suggested that "[i]f one thinks of a judicially pronounced new rule of law as the rosy dawn of a new day, 'sunbursting' has an appropriate connota­tion." Thomas E. Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: "Prospective Overruling" or "Sunbur­sting", 51 Marq. L. Rev. 254, 255 (1967-68). However, the illustrative nature of the term is purely coincidental. Prospec­tive overruling earned the nickname "sunbursting" from the name of a party to litigation involving prospective application. Great Northern Railway Company v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932).

326 U.S. 501 (1946)

APPEAL FROM THE COURT OF APPEALS OF ALABAMA.

Mr. Hayden C. Covington, with whom Mr. Grover C. Powell was on the brief, for appellant.

William M. McQueen, Attorney General of Alabama, and John O. Harris, Assistant Attorney General, submitted for appellee.

MR. JUSTICE BLACK delivered the opinion of the Court.

In this case we are asked to decide whether a State, consistently with the First and Fourteenth Amendments, can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town's management. The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a "business block" on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.

Appellant, a Jehovah's Witness, came onto the sidewalk we have just described, stood near the post office and undertook to distribute religious literature. In the stores the corporation had posted a notice which read as follows: "This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted." Appellant was warned that she could not distribute the literature without a permit and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw she declined. The deputy sheriff arrested her and she was charged in the state court with violating Title 14, § 426 of the 1940 Alabama Code which makes it a crime to enter or remain on the premises of another after having been warned not to do so. Appellant contended that to construe the state statute as applicable to her activities would abridge her right to freedom of press and religion contrary to the First and Fourteenth Amendments to the Constitution. This contention was rejected and she was convicted. The Alabama Court of Appeals affirmed the conviction, holding that the statute as applied was constitutional because the title to the sidewalk was in the corporation and because the public use of the sidewalk had not been such as to give rise to a presumption under Alabama law of its irrevocable dedication to the public. 21 So.2d 558. The State Supreme Court denied certiorari, 246 Ala. 539, 21 So.2d 564, and the case is here on appeal under § 237 (a) of the Judicial Code, 28 U.S.C. § 344 (a).

Had the title to Chickasaw belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant's conviction must be reversed. Under our decision in Lovell v. Griffin, 303 U.S. 444 and others which have followed that case,^[1] neither a State nor a municipality can completely bar the distribution of literature containing religious or political ideas on its streets, sidewalks and public places or make the right to distribute dependent on a flat license tax or permit to be issued by an official who could deny it at will. We have also held that an ordinance completely prohibiting the dissemination of ideas on the city streets cannot be justified on the ground that the municipality holds legal title to them. Jamison v. Texas, 318 U.S. 413. And we have recognized that the preservation of a free society is so far dependent upon the right of each individual citizen to receive such literature as he himself might desire that a municipality could not, without jeopardizing that vital individual freedom, prohibit door to door distribution of literature. Martin v. Struthers, 319 U.S. 141, 146, 147. From these decisions it is clear that had the people of Chickasaw owned all the homes, and all the stores, and all the streets, and all the sidewalks, all those owners together could not have set up a municipal government with sufficient power to pass an ordinance completely barring the distribution of religious literature. Our question then narrows down to this: Can those people who live in or come to Chickasaw be denied freedom of press and religion simply because a single company has legal title to all the town? For it is the State's contention that the mere fact that all the property interests in the town are held by a single company is enough to give that company power, enforceable by a state statute, to abridge these freedoms.

We do not agree that the corporation's property interests settle the question.^[2] The State urges in effect that the corporation's right to control the inhabitants of Chickasaw is coextensive with the right of a homeowner to regulate the conduct of his guests. We cannot accept that contention. Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Cf. Republic Aviation Corp. v. Labor Board, 324 U.S. 793, 798, 802, n. 8. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.^[3] And, though the issue is not directly analogous to the one before us, we do want to point out by way of illustration that such regulation may not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. Port Richmond Ferry v. Hudson County, supra, 234 U.S. at 326 and cases cited, pp. 328-329; cf. South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177. Had the corporation here owned the segment of the four-lane highway which runs parallel to the "business block" and operated the same under a state franchise, doubtless no one would have seriously contended that the corporation's property interest in the highway gave it power to obstruct through traffic or to discriminate against interstate commerce. See County Commissioners v. Chandler, 96 U.S. 205, 208; Donovan v. Pennsylvania Co., supra, 199 U.S. at 294; Covington Drawbridge Co. v. Shepherd, 21 How. 112, 125. And even had there been no express franchise but mere acquiescence by the State in the corporation's use of its property as a segment of the four-lane highway, operation of all the highway, including the segment owned by the corporation, would still have been performance of a public function and discrimination would certainly have been illegal.^[4]

We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a "business block" in the town and a street and sidewalk on that business block. Cf. Barney v. Keokuk, 94 U.S. 324, 340. Whether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. As we have heretofore stated, the town of Chickasaw does not function differently from any other town. The "business block" serves as the community shopping center and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.

Many people in the United States live in company-owned towns.^[5] These people, just as residents of municipalities, are free citizens of their State and country. Just as all other citizens they must make decisions which affect the welfare of community and nation. To act as good citizens they must be informed. In order to enable them to be properly informed their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.^[6]

When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.^[7] As we have stated before, the right to exercise the liberties safeguarded by the First Amendment "lies at the foundation of free government by free men" and we must in all cases "weigh the circumstances and . . . appraise the . . . reasons . . . in support of the regulation. . . of the rights." Schneider v. State, 308 U.S. 147, 161. In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State's permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute. Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand. The case is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MR. JUSTICE FRANKFURTER, concurring.

So long as the views which prevailed in Jones v. Opelika, 319 U.S. 103, in connection with 316 U.S. 584, 600; Murdock v. Pennsylvania, 319 U.S. 105; Martin v. Struthers, 319 U.S. 141, express the law of the Constitution, I am unable to find legal significance in the fact that a town in which the Constitutional freedoms of religion and speech are invoked happens to be company-owned. These decisions accorded the purveyors of ideas, religious or otherwise, "a preferred position," Murdock v. Pennsylvania, supra at 115, even to the extent of relieving them from an unhampering and non-discriminatory duty of bearing their share of the cost of maintaining the peace and the other amenities of a civilized society. Constitutional privileges having such a reach ought not to depend upon a State court's notion of the extent of "dedication" of private property to public purposes. Local determinations of such technical matters govern controversies affecting property. But when decisions by State courts involving local matters are so interwoven with the decision of the question of Constitutional rights that one necessarily involves the other, State determination of local questions cannot control the Federal Constitutional right.

A company-owned town gives rise to a network of property relations. As to these, the judicial organ of a State has the final say. But a company-owned town is a town. In its community aspects it does not differ from other towns. These community aspects are decisive in adjusting the relations now before us, and more particularly in adjudicating the clash of freedoms which the Bill of Rights was designed to resolve—the freedom of the community to regulate its life and the freedom of the individual to exercise his religion and to disseminate his ideas. Title to property as defined by State law controls property relations; it cannot control issues of civil liberties which arise precisely because a company town is a town as well as a congeries of property relations. And similarly the technical distinctions on which a finding of "trespass" so often depends are too tenuous to control decision regarding the scope of the vital liberties guaranteed by the Constitution.

Accordingly, as I have already indicated, so long as the scope of the guarantees of the Due Process Clause of the Fourteenth Amendment by absorption of the First remains that which the Court gave to it in the series of cases in the October Term, 1942, the circumstances of the present case seem to me clearly to fall within it. And so I agree with the opinion of the Court, except that portion of it which relies on arguments drawn from the restrictions which the Commerce Clause imposes on State regulation of commerce. It does not seem to me to further Constitutional analysis to seek help for the solution of the delicate problems arising under the First Amendment from the very different order of problems which the Commerce Clause presents. The latter involves an accommodation between National and State powers operating in the same field. Where the First Amendment applies, it is a denial of all governmental power in our Federal system.

MR. JUSTICE REED, dissenting.

Former decisions of this Court have interpreted generously the Constitutional rights of people in this Land to exercise freedom of religion, of speech and of the press.^[8] It has never been held and is not now by this opinion of the Court that these rights are absolute and unlimited either in respect to the manner or the place of their exercise.^[9] What the present decision establishes as a principle is that one may remain on private property against the will of the owner and contrary to the law of the state so long as the only objection to his presence is that he is exercising an asserted right to spread there his religious views. See Marrone v. Washington Jockey Club, 227 U.S. 633. This is the first case to extend by law the privilege of religious exercises beyond public places or to private places without the assent of the owner. Compare Martin v. Struthers, 319 U.S. 141.

As the rule now announced permits this intrusion, without possibility of protection of the property by law, and apparently is equally applicable to the freedom of speech and the press, it seems appropriate to express a dissent to this, to us, novel Constitutional doctrine. Of course, such principle may subsequently be restricted by this Court to the precise facts of this case—that is to private property in a company town where the owner for his own advantage has permitted a restricted public use by his licensees and invitees. Such distinctions are of degree and require new arbitrary lines, judicially drawn, instead of those hitherto established by legislation and precedent. While the power of this Court, as the interpreter of the Constitution to determine what use of real property by the owner makes that property subject, at will, to the reasonable practice of religious exercises by strangers, cannot be doubted, we find nothing in the principles of the First Amendment, adopted now into the Fourteenth, which justifies their application to the facts of this case.^[10]

Both Federal and Alabama law permit, so far as we are aware, company towns. By that we mean an area occupied by numerous houses, connected by passways, fenced or not, as the owners may choose. These communities may be essential to furnish proper and convenient living conditions for employees on isolated operations in lumbering, mining, production of high explosives and large-scale farming. The restrictions imposed by the owners upon the occupants are sometimes galling to the employees and may appear unreasonable to outsiders. Unless they fall under the prohibition of some legal rule, however, they are a matter for adjustment between owner and licensee, or by appropriate legislation. Compare Western Turf Assn. v. Greenberg, 204 U.S. 359.

Alabama has a statute generally applicable to all privately owned premises. It is Title 14, § 426, Alabama Code 1940 which so far as pertinent reads as follows:

"Trespass after warning.—Any person who, without legal cause or good excuse, enters into the dwelling house or on the premises of another, after having been warned, within six months preceding, not to do so; or any person, who, having entered into the dwelling house or on the premises of another without having been warned within six months not to do so, and fails or refuses, without legal cause or good excuse, to leave immediately on being ordered or requested to do so by the person in possession, his agent or representative, shall, on conviction, be fined not more than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than three months."

Appellant was distributing religious pamphlets on a privately owned passway or sidewalk thirty feet removed from a public highway of the State of Alabama and remained on these private premises after an authorized order to get off. We do not understand from the record that there was objection to appellant's use of the nearby public highway and under our decisions she could rightfully have continued her activities a few feet from the spot she insisted upon using. An owner of property may very well have been willing for the public to use the private passway for business purposes and yet have been unwilling to furnish space for street trades or a location for the practice of religious exhortations by itinerants. The passway here in question was not put to any different use than other private passways that lead to privately owned areas, amusement places, resort hotels or other businesses. There had been no dedication of the sidewalk to the public use, express or implied. Alabama so decided and we understand that this Court accepts that conclusion. Alabama, also, decided that appellant violated by her activities the above-quoted state statute.

The Court calls attention to the fact that the owners of public utilities, bridges, ferries, turnpikes and railroads are subject to state regulation of rates and are forbidden to discriminate against interstate commerce. This is quite true but we doubt if the Court means to imply that the property of these utilities may be utilized, against the companies' wishes, for religious exercises of the kind in question.

A state does have the moral duty of furnishing the opportunity for information, education and religious enlightenment to its inhabitants, including those who live in company towns, but it has not heretofore been adjudged that it must commandeer, without compensation, the private property of other citizens to carry out that obligation. Heretofore this Court has sustained the right of employees, under an appropriate statute, protecting full freedom of employee organization, to solicit union membership in nonworking time on the property of an employer and against his express prohibition. This is because the prohibition is an impediment to the right of organization which is protected by a statute which governs a relation between employers and employees if and when the latter are admitted to the employers' premises as licensees. It was recognized in the opinion that the freedom of solicitation was the result of a regulatory statute and was not a Constitutional right. Republic Aviation Corp. v. Labor Board, 324 U.S. 793, 803. In the area which is covered by the guarantees of the First Amendment, this Court has been careful to point out that the owner of property may protect himself against the intrusion of strangers. Although in Martin v. Struthers, 319 U.S. 141, an ordinance forbidding the summonsing of the occupants of a dwelling to receive handbills was held invalid because in conflict with the freedom of speech and press, this Court pointed out at page 147 that, after warning, the property owner would be protected from annoyance.^[11] The very Alabama statute which is now held powerless to protect the property of the Gulf Shipbuilding Corporation, after notice, from this trespass was there cited, note 10, to show that it would protect the householder, after notice. The right to communicate ideas was expressed by us in Jamison v. Texas, 318 U.S. 413, 416, as follows: "But one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the Constitutional right to express his views in an orderly fashion."

Our Constitution guarantees to every man the right to express his views in an orderly fashion. An essential element of "orderly" is that the man shall also have a right to use the place he chooses for his exposition. The rights of the owner, which the Constitution protects as well as the right of free speech, are not outweighed by the interests of the trespasser, even though he trespasses in behalf of religion or free speech. We cannot say that Jehovah's Witnesses can claim the privilege of a license, which has never been granted, to hold their meetings in other private places, merely because the owner has admitted the public to them for other limited purposes. Even though we have reached the point where this Court is required to force private owners to open their property for the practice there of religious activities or propaganda distasteful to the owner, because of the public interest in freedom of speech and religion, there is no need for the application of such a doctrine here. Appellant, as we have said, was free to engage in such practices on the public highways, without becoming a trespasser on the company's property.

The CHIEF JUSTICE and MR. JUSTICE BURTON join in this dissent.

[1] Hague v. C.I.O., 307 U.S. 496; Schneider v. State, 308 U.S. 147; Thornhill v. Alabama, 310 U.S. 88; Cantwell v. Connecticut, 310 U.S. 296; dissent of Chief Justice Stone in Jones v. Opelika, 316 U.S. 584, 600, adopted as the opinion of the Court, 319 U.S. 103; Largent v. Texas, 318 U.S. 418; Murdock v. Pennsylvania, 319 U.S. 105; Follett v. McCormick, 321 U.S. 573.

[2] We do not question the state court's determination of the issue of "dedication." That determination means that the corporation could, if it so desired, entirely close the sidewalk and the town to the public and is decisive of all questions of state law which depend on the owner's being estopped to reclaim possession of, and the public's holding the title to, or having received an irrevocable easement in, the premises. Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Hamilton v. Town of Warrior, 215 Ala. 670, 112 So. 136; Town of Leeds v. Sharp, 218 Ala. 403, 405, 118 So. 572; Forney v. Calhoun County, 84 Ala. 215, 4 So. 153; Cloverdale Homes v. Cloverdale, 182 Ala. 419, 62 So. 712. The "dedication" of a road to the public may also be decisive of whether, under Alabama law, obstructing the road constitutes a crime, Beverly v. State, 28 Ala. App. 451, 185 So. 768, and whether certain action on or near the road amounts to a tort. Thrasher v. Burr, 202 Ala. 307, 80 So. 372. But determination of the issue of "dedication" does not decide the question under the Federal Constitution here involved.

[3] Clark's Ferry Bridge Co. v. Public Service Commission, 291 U.S. 227; American Toll Bridge Co. v. Railroad Commission, 307 U.S. 486; Mills v. St. Clair County, 8 How. 569, 581; Port Richmond Ferry v. Hudson County, 234 U.S. 317, 327, 331-332; Covington & L. Turnpike Road Co. v. Sandford, 164 U.S. 578; Norfolk & S. Turnpike Co. v. Virginia, 225 U.S. 264; Donovan v. Pennsylvania Co., 199 U.S. 279, and cases cited on pp. 293-295.

[4] And certainly the corporation can no more deprive people of freedom of press and religion than it can discriminate against commerce. In his dissenting opinion in Jones v. Opelika, 316 U.S. 584, 600, which later was adopted as the opinion of the Court, 319 U.S. 103, 104, Mr. Chief Justice Stone made the following pertinent statement: "Freedom of press and religion, explicitly guaranteed by the Constitution, must at least be entitled to the same freedom from burdensome taxation which it has been thought that the more general phraseology of the commerce clause has extended to interstate commerce. Whatever doubts may be entertained as to this Court's function to relieve, unaided by Congressional legislation, from burdensome taxation under the commerce clause, see Gwin, White & Prince v. Henneford, 305 U.S. 434, 441, 446-55; McCarroll v. Dixie Lines, 309 U.S. 176, 184-85, it cannot be thought that that function is wanting under the explicit guaranties of freedom of speech, press and religion." 316 U.S. at 610-11.

[5] In the bituminous coal industry alone, approximately one-half of the miners in the United States lived in company-owned houses in the period from 1922-23. The percentage varied from 9 per cent in Illinois and Indiana and 64 per cent in Kentucky, to almost 80 per cent in West Virginia. U.S. Coal Commission, Report, 1925, Part III, pp. 1467, 1469 summarized in Morris, The Plight of the Coal Miner, Philadelphia 1934, Ch. VI, p. 86. The most recent statistics we found available are in Magnusson, Housing by Employers in the United States, Bureau of Labor Statistics Bulletin No. 263 (Misc. Ser.) p. 11. See also United States Department of Labor, Wage and Hour Division, Data on Pay Roll Deductions, Union Manufacturing Company, Union Point, Georgia, June 1941; Rhyne, Some Southern Cotton Mill Workers and Their Villages, Chapel Hill, 1930 (Study completed under the direction of the Institute for Research in Social Science at the University of North Carolina); Comment, Urban Redevelopment, 54 Yale L.J. 116.

[6] As to the suppression of civil liberties in company towns and the need of those who live there for Constitutional protection, see the summary of facts aired before the Senate Committee on Education and Labor, Violations of Free Speech and Rights of Labor, Hearings pursuant to S. Res. 266, 74th Cong., 2d Sess., 1937, summarized in Bowden, Freedom for Wage Earners, Annals of The American Academy of Political and Social Science, Nov. 1938, p. 185; Z. Chafee, The Inquiring Mind (New York, 1928), pp. 173-74; Pamphlet published in 1923 by the Bituminous Operators' Special Committee under the title The Company Town; U.S. Coal Commission, Report, supra, Part III, p. 1331.

[7] Jones v. Opelika, supra, 316 U.S. at 608; Murdock v. Pennsylvania, supra, 319 U.S. at 115; Follett v. McCormick, supra, 321 U.S. at 577.

[8] Lovell v. Griffin, 303 U.S. 444; Hague v. C.I.O., 307 U.S. 496; Schneider v. State, 308 U.S. 147; Thornhill v. Alabama, 310 U.S. 88; Cantwell v. Connecticut, 310 U.S. 296; dissent of Chief Justice Stone in Jones v. Opelika, 316 U.S. 584, 600, adopted as the opinion of the Court, 319 U.S. 103; Jamison v. Texas, 318 U.S. 413; Largent v. Texas, 318 U.S. 418; Murdock v. Pennsylvania, 319 U.S. 105; Martin v. Struthers, 319 U.S. 141; Follett v. McCormick, 321 U.S. 573.

[9] Schenck v. United States, 249 U.S. 47; Gitlow v. New York, 268 U.S. 652; Near v. Minnesota, 283 U.S. 697; Cantwell v. Connecticut, 310 U.S. 296; Chaplinsky v. New Hampshire, 315 U.S. 568; Prince v. Massachusetts, 321 U.S. 158.

[10] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." First Amendment to the Constitution.

[11] "The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.

"Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states, while similar statutes of narrower scope are on the books of at least twelve states more. We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away. The National Institute of Municipal Law Officers has proposed a form of regulation to its member cities which would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed. This or any similar regulation leaves the decision as to whether distributors of literature may lawfully call at a home where it belongs—with the homeowner himself." Martin v. Struthers, 319 U.S. 141, 147-48.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. PETER K. SHACK AND FRANK TEJERAS, DEFEND­ANTS-APPELLANTS.

Decided May 11, 1971.

Argued March 8 and 9, 1971

Mr. Max B. Rothman argued the cause for appellants (Mr. David H. Dugan, III, Camden Regional Legal Services, Inc., attorney; Mr. Peter K. Shack and Mr. Christian B. Peper, Jr., of the Missouri bar, on the brief).

Mr. Samuel J. Serata, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph Tuso, Cumberland County Prosecutor, attorney).

Mr. Barry H. Evenchick, Deputy Attorney General, argued the cause for the Attorney General of New Jersey, amicus curiae (Mr. George F. Kugler, Jr., Attorney General of New Jersey).

Mr. Carl R. Lobel argued the cause for New Jersey State Office of Legal Services, amicus curiae (Mr. Carl F. Bianchi, attorney).

Mr. Frederick B. Lacey, United States Attorney, submitted a brief on behalf of the United States, amicus curiae (Mr. Jerris Leonard, Assistant Attorney General, Mr. David L. Norman, Deputy Assistant Attorney General, and Mr. Joseph B. Scott, attorney, U. S. Department of Justice, of the D. C. bar, on the brief).

The opinion of the Court was delivered by

Weintraub, C. J.

Defendants entered upon private prop­erty to aid migrant farmworkers employed and housed there. Having refused to depart upon the demand of the owner, defendants were charged with violating N.J.S.A. 2A:170-31 which provides that “[a]ny person who trespasses on any lands * * * after being forbidden so to trespass by the owner * * * is a disorderly person and shall be punished by a fine of not more than $50.” Defendants were convicted in the Municipal Court of Deerfield Township and again on appeal in the County Court of Cumberland County on a trial de novo. R. 3:23-8(a). We certified their further ap­peal before argument in the Appellate Division.

Before us, no one seeks to sustain these convictions. The complaints were prosecuted in the Municipal Court and in the County Court by counsel engaged by the complaining landowner, Tedesco. However Tedesco did not respond to this appeal, and the county prosecutor, while defending ab­stractly the constitutionality of the trespass statute, expressly disclaimed any position as to whether the statute reached the activity of these defendants.

Complainant, Tedesco, a farmer, employs migrant workers for his seasonal needs. As part of their compensation, these workers are housed at a camp on his property.

Defendant Tejeras is a field worker for the Farm Workers Division of the Southwest Citizens Organization for Poverty Elimination, known by the acronym SCOPE, a nonprofit corporation funded by the Office of Economic Opportunity pursuant to an act of Congress, 42 U.S.C.A. §§ 2861-28C4. The role of SCOPE includes providing for the “health serv­ices of the migrant farm worker.”

Defendant Shack is a staff attorney with the Farm Work­ers Division of Camden Regional Legal Services, Inc., known as “CRLS,” also a nonprofit corporation funded by the Office of Economic Opportunity pursuant to an act of Congress, 42 U.S.C.A. § 2809(a)(3). The mission of CRLS includes legal advice and representation for these workers.

Differences had developed between Tedesco and these defendants prior to the events which led to the trespass charges now before us. Hence when defendant Tejeras wanted to go upon Tedesco’s farm to find a migrant worker who needed medical aid for the removal of 28 sutures, he called upon defendant Shack for his help with respect to the legalities involved. Shack, too, had a mission to perform on Tedesco’s farm; he wanted to discuss a legal problem with another migrant worker there employed and housed. De­fendants arranged to go to the farm together. Shack carried literature to inform the migrant farmworkers of the assist­ance available to them under federal statutes, but no men­tion seems to have been made of that literature when Shack was later confronted by Tedesco.

Defendants entered upon Tedesco’s property and as they neared the camp site where the farmworkers were housed, they were confronted by Tedesco who inquired of their pur­pose. Tejeras and Shack stated their missions. In response, Tedesco offered to find the injured worker, and as to the worker who needed legal advice, Tedesco also offered to lo­cate the man but insisted that the consultation would have to take place in Tedesco’s office and in his presence. De­fendants declined, saying they had the right to see the men in the privacy of their living quarters and without Tedesco’s supervision. Tedesco thereupon summoned a State Trooper who, however, refused to remove defendants except upon Tedesco’s written complaint. Tedesco then executed the formal complaints charging violations of the trespass statute.

I

The constitutionality of the trespass statute, as applied here, is challenged on several scores.

It is urged that the First Amendment rights of the de­fendants and of the migrant farmworkers were thereby offended. Reliance is placed on Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946), where it was held that free speech was assured by the First Amendment in a company-owned town which was open to the public gen­erally and was indistinguishable from any other town except for the fact that the title to the property was vested in a private corporation. Hence a Jehovah’s Witness who dis­tributed literature on a sidewalk within the town could not be held as a trespasser. Later, on the strength of that case, it was held that there was a First Amendment right to picket peacefully in a privately owned shopping center which was found to be the functional equivalent of the business district of the company-owned town in Marsh. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968). See, to the same effect, the earlier case of Schwartz-Torrance Investment Corp. v. Bakery and Confectionery Workers’ Union, 61 Cal 2d 766, 40 Cal Rptr. 233, 394 P. 2d 921 (Sup. Ct. 1964), cert. denied, 380 U.S. 906, 85 S. Ct. 888, 13 L. Ed. 2d 794 (1964). Those cases rest upon the fact that the prop­erty was in fact opened to the general public. There may be some migrant camps with the attributes of the company town in Marsh and of course they would come within its holding. But there is nothing of that character in the case before us, and hence there would have to be an extension of Marsh to embrace the immediate situation.

Defendants also maintain that the application of the tres­pass statute to them is barred by the Supremacy Clause of the United States Constitution, Art. VI, cl. 2, and this on the premise that the application of the trespass statute would defeat the purpose of the federal statutes, under which SCOPE and CRLS are funded, to reach and aid the migrant farmworker. The brief of the United States, amicus curiae, supports that approach. Here defendants rely upon cases construing the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and holding that an employer may in some circumstances be guilty of an unfair labor practice in viola­tion of that statute if the employer denies union organizers an opportunity to communicate with his employees at some suitable place upon the employer’s premises. See NLRB v. Babcock and Wilcox Co., 351 U.S. 105, 76 S. Ct. 679, 100 L. Ed. 975 (1956), and annotation, 100 L. Ed. 984 (1956). The brief of New Jersey State Office of Legal Services, ami­cus curias, asserts the workers’ Sixth Amendment right to counsel in criminal matters is involved and suggests also that a right to counsel in civil matters is a “penumbra” right emanating from the whole Bill of Rights under the thinking of Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), or is a privilege of national citizen­ship protected by the privileges and immunities clause of the Fourteenth Amendment, or is a right “retained by the peo­ple” under the Ninth Amendment, citing a dictum in United Public Workers v. Mitchell, 330 U.S. 75, 94, 67 S. Ct. 556, 91 L. Ed. 754, 770 (1947).

These constitutional claims are not established by any definitive holding. We think it unnecessary to explore their validity. The reason is that we are satisfied that under our State law the ownership of real property does not include the right to bar access to governmental services available to migrant workers and hence there was no trespass within the meaning of the penal statute. The policy considerations which underlie that conclusion may be much the same as those which would be weighed with respect to one or more of the constitutional challenges, but a decision in noncon­stitutional terms is more satisfactory, because the interests of migrant workers are more expansively served in that way than they would be if they had no more freedom than these constitutional concepts could be found to mandate if indeed they apply at all.

II

Property rights serve human values. They are recognized to that end, and are limited by it. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their well-being must remain the paramount concern of a system of law. Indeed the needs of the occupants may be so imperative and their strength so weak, that the law will deny the occupants the power to contract away what is deemed essential to their health, welfare, or dignity.

Here we are concerned with a highly disadvantaged seg­ment of our society. We are told that every year farmworkers and their families numbering more than one million leave their home areas to fill the seasonal demand for farm labor in the United States. The Migratory Farm Labor Problem in the United States (1969 Report of Subcommittee on Migratory Labor of the United States Senate Committee on Labor and Public Welfare), p. 1. The migrant farmworkers come to New Jersey in substantial numbers. The report just cited places at 55,700 the number of man-months of such employment in our State in 1968 (p. 7). The num­bers of workers so employed here in that year are estimated at 1,300 in April; 6,500 in May; 9,800 in June; 10,600 in July; 12,100 in August; 9,600 in September; and 5,500 in October (p. 9).

The migrant farmworkers are a community within but apart from the local scene. They are rootless and isolated. Although the need for their labors is evident, they are un­organized and without economic or political power. It is their plight alone that summoned government to their aid. In response, Congress provided under Title III-B of the Economic Opportunity Act of 1964 (42 U.S.C.A. § 2701 et seq.) for “assistance for migrant and other seasonally em­ployed farmworkers and their families.” Section 2861 states “the purpose of this part is to assist migrant and seasonal farmworkers and their families to improve their living con­ditions and develop skills necessary for a productive and self-sufficient life in an increasingly complex and tech­nological society.” Section 2862(b)(1) provides for fund­ing of programs “to meet the immediate needs of migrant and seasonal farmworkers and their families, such as day care for children, education, health services, improved hous­ing and sanitation (including the provision and maintenance of emergency and temporary housing and sanitation facili­ties), legal advice and representation, and consumer train­ing and counseling.” As we have said, SCOPE is engaged in a program funded under this section, and CRLS also pursues the objectives of this section although, we gather, it is funded under § 2809 (a) (3), which is not limited in its concern to the migrant and other seasonally employed farmworkers and seeks “to further the cause of justice among persons living in poverty by mobilizing the assistance of lawyers and legal institutions and by providing legal advice, legal representation, counseling, education, and other ap­propriate services.”

These ends would not be gained if the intended bene­ficiaries could be insulated from efforts to reach them. It is in this framework that we must decide whether the camp operator’s rights in his lands may stand between the migrant workers and those who would aid them. The key to that aid is communication. Since the migrant workers are outside the mainstream of the communities in which they are housed and are unaware of their rights and opportunities and of the services available to them, they can be reached only by posi­tive efforts tailored to that end. The Report of the Gover­nor’s Task Force on Migrant Farm Labor (1968) noted that “One of the major problems related to seasonal farm labor is the lack of adequate direct information with regard to the availability of public services,” and that “there is a dire need to provide the workers with basic educational and informational material in a language and style that can be readily understood by the migrant” (pp. 101-102). The re­port stressed the problem of access and deplored the notion that property rights may stand as a barrier, saying “In our judgment, ‘no trespass’ signs represent the last dying rem­nants of paternalistic behavior” (p. 63).

A man’s right in his real property of course is not abso­lute. It was a maxim of the common law that one should so use his property as not to injure the rights of others. Broom, Legal Maxims (10th ed. Kersley 1939), p. 238; 39 Words and Phrases, “Sic Utere Tuo ut Alienum Non Laedas,” p. 335. Although hardly a precise solvent of actual con­troversies, the maxim does express the inevitable proposition that rights are relative and there must be an accommodation when they meet. Hence it has long been true that necessity, private or public, may justify entry upon the lands of an­other. For a catalogue of such situations, see Prosser, Torts (3d ed. 1964), § 24, pp. 127-129; 6A American Law of Property (A. J. Casner ed. 1954) § 28.10, p. 31; 52 Am. Jur., "Trespass” §§ 40-41, pp. 867-869. See also Restate­ment, Second, Torts (1965) §§ 197-211; Krauth v. Geller, 31 N. J. 270, 272-273 (1960).

The subject is not static. As pointed out in 5 Powell, Real Property (Rohan 1970) § 745, pp. 493-494, while so­ciety will protect the owner in his permissible interests in land, yet

“* * * [S]uch an owner must expect to find the absoluteness of his property rights curtailed by the organs of society, for the pro­motion of the best interests of others for whom these organs also operate as protective agencies. The necessity for such curtailments is greater in a modern industrialized and urbanized society than it was in the relatively simple American society of fifty, 100, or 200 years ago. The current balance between individualism and dominance of the social interest depends not only upon political and social ideolo­gies, but also upon the physical and social facts of the time and place under discussion.”

Professor Powell added in § 746, pp. 494-496:

“As one looks back along the historic road traversed by the law of land in England and in America, one sees a change from the viewpoint that he who owns may do as he pleases with what he owns, to a position which hesitatingly embodies an ingredient of stewardship; which grudgingly, but steadily, broadens the recognized scope of social interests in the utilization of things. * * *

To one seeing history through the glasses of religion, these changes may seem to evidence increasing embodiments of the golden rule. To one thinking in terms of political and economic ideologies, they are likely to be labeled evidences of ‘social enlightment,’ or of ‘creeping socialism’ or even of ‘communistic infiltration,’ according to the in­dividual’s assumed definitions and retained or acquired prejudices. With slight attention to words or labels, time marches on toward new adjustments between individualism and the social interests.”

This process involves not only the accommodation between the right of the owner and the interests of the general public in his use of his property, but involves also an accommoda­tion between the right of the owner and the right of indi­viduals who are parties with him in consensual transactions relating to the use of the property. Accordingly substantial alterations have been made as between a landlord and his tenant. See Reste Realty Corp. v. Cooper, 53 N.J. 444, 451-453 (1969); Marini v. Ireland, 56 N.J. 130, 141—143 (1970).

The argument in this case understandably included the question whether the migrant worker should be deemed to be a tenant and thus entitled to the tenant’s right to receive visitors, Williams v. Lubbering, 73 N.J.R. 317, 319-320 (Sup. Ct. 1906), or whether his residence on the employer’s property should be deemed to be merely incidental and in aid of his employment, and hence to involve no possessory interest in the realty. See Scottish Rite Co. v. Salkowitz, 119 N.J.R. 558 (E. & A. 1938); New Jersey Midland Ry. Co. v. Van Syckle, 37 N.J.R. 496, 506 (E. & A. 1874); Gray v. Reynolds, 67 N.J.L. 169 (Sup. Ct. 1901); McQuade v. Emmons, 38 N.J.L. 397 (Sup. Ct. 1876); Morris Canal & Banking Co. v. Mitchell, 31 N.J.L. 99 (Sup. Ct. 1864); Schuman v. Zurawell, 24 N.J. Misc. 180 (Cir. Ct. 1946). These cases did not reach employment situations at all com­parable with the one before us. Nor did they involve the question whether an employee who is not a tenant may have visitors notwithstanding the employer’s prohibition. Rather they were concerned with whether notice must be given to end the employee’s right to remain upon the premises, with whether the employer may remove the discharged employee without court order, and with the availability of a particular judicial remedy to achieve his removal by process. We of course are not concerned here with the right of a migrant worker to remain on the employer’s property after the em­ployment is ended.

We see no profit in trying to decide upon a conventional category and then forcing the present subject into it. That approach would be artificial and distorting. The quest is for a fair adjustment of the competing needs of the parties, in the light of the realities of the relationship between the migrant worker and the operator of the housing facility.

Thus approaching the case, we find it unthinkable that the farmer-employer can assert a right to isolate the migrant worker in any respect significant for the worker’s well-being. The farmer, of course, is entitled to pursue his farming activities without interference, and this defendants readily concede. But we see no legitimate need for a right in the farmer to deny the worker the opportunity for aid available from federal, State, or local services, or from rec­ognized charitable groups seeking to assist him. Hence rep­resentatives of these agencies and organizations may enter upon the premises to seek out the worker at his living quarters. So, too, the migrant worker must be allowed to receive visitors there of his own choice, so long as there is no behavior hurtful to others, and members of the press may not be denied reasonable access to workers who do not object to seeing them.

It is not our purpose to open the employer’s premises to the general public if in fact the employer himself has not done so. We do not say, for example, that solicitors or ped­dlers of all kinds may enter on their own; we may assume for the present that the employer may regulate their entry or bar them, at least if the employer’s purpose is not to gain a commercial advantage for himself or if the regulation does not deprive the migrant worker of practical access to things he needs.

And we are mindful of the employer’s interest in his own and in his employees’ security. Hence he may rea­sonably require a visitor to identify himself, and also to state his general purpose if the migrant worker has not already informed him that the visitor is expected. But the employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. These rights are too funda­mental to be denied on the basis of an interest in real prop­erty and too fragile to be left to the unequal bargaining strength of the parties. See Henningsen v. Bloomfield Mo­tors, Inc., 32 N.J. 358, 403-404 (1960); Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 555 (1967).

It follows that defendants here invaded no possessory right of the farmer-employer. Their conduct was therefore beyond the reach of the trespass statute. The judgments are accordingly reversed and the matters remanded to the County Court with directions to enter judgments of acquittal.

For reversal and remandment—Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hail and Schettino—6.

For affirmance—None.

Missouri Court of Appeals, St. Louis District, Division One.

No. 35699.

Dr. Edward L. EYERMAN et al., Plaintiffs-Appellants, v. MERCANTILE TRUST CO., N.A., et al., Defendants-Respondents.

April 22, 1975.

Motion for Rehearing or to Transfer to Supreme Court Denied June 12, 1975. Application to Transfer Denied July 14, 1975.

DOWD, P. J., concurs.

CLEMENS, J., dissents in separate opin­ion.

Armstrong, Teasdale, Kramer & Vaughan, Edwin S. Fryer, St. Louis, for plaintiffs-appellants.

Harry W. Kroeger, Lashly, Caruthers, Rava, Hyndman & Rutherford, Michael C. Walther, Thompson, Mitchell, Douglas, Neill, Guerri & Elbert, Fred E. Arnold, St. Louis, for defendants-respondents.

RENDLEN, Judge.

Plaintiffs appeal from denial of their pe­tition seeking injunction to prevent demoli­tion of a house at #4 Kingsbury Place in the City of St. Louis. The action is brought by individual neighboring property owners and certain trustees for the Kingsbury Place Subdivision. We reverse.

Louise Woodruff Johnston, owner of the property in question, died January 14, 1973, and by her will directed the executor “. . . to cause our home at 4 Kingsbury Place . . . to be razed and to sell the land upon which it is located . . . and to transfer the proceeds of the sale . . . to the residue of my estate.” Plaintiffs assert that razing the home will adversely affect their property rights, violate the terms of the subdivision trust indenture for Kingsbury Place, produce an actionable pri­vate nuisance and is contrary to public poli­cy.

The area involved is a “private place” established in 1902 by trust indenture which provides that Kingsbury Place and Kings­bury Terrace will be so maintained, im­proved, protected and managed as to be desirable for private residences. The trus­tees are empowered to protect and preserve “Kingsbury Place” from encroachment, trespass, nuisance or injury, and it is “the intention of these presents, forming a gen­eral scheme of improving and maintaining said property as desirable residence proper­ty of the highest class.” The covenants run with the land and the indenture empowers lot owners or the trustees to bring suit to enforce them.

Except for one vacant lot, the subdivision is occupied by handsome, spacious two and three-story homes, and all must be used exclusively as private residences. The in­denture generally regulates location, costs and similar features for any structures in the subdivision, and limits construction of subsidiary structures except those that may beautify the property, for example, private stables, flower houses, conservatories, play houses or buildings of similar character.

On trial the temporary restraining order was dissolved and all issues found against the plaintiffs.

Defendants question plaintiffs’ standing to bring this suit, arguing that plaintiffs are not parties in interest who may invoke the rights of beneficiaries of the will against a trustee to enforce a trust or en­join its breach, citing Restatement, Second, Trusts § 200. This is not such a suit. Plaintiffs’ action is not to invoke the rights of beneficiaries of the will for enforcement of a trust or to enjoin its breach; instead, they seek protection of competing interests shared by themselves and the general com­munity against a capricious condition of a will directing the defendant-executor to de­stroy estate property. If appellants are successful, important rights personal to plaintiffs and the public will be vindicated and it is only incidental that the effect on decedent’s estate will increase funds availa­ble for distribution to the beneficiaries. Here the gift is not a devise of particular land to specific beneficiaries, but instead testatrix’s house is to be razed and the lot converted to cash. From this we find no intent to preserve the land for a settled purpose or the use of any person or group; instead, it becomes a gift of money, indefi­nite as to amount, for the residual estate.

The issues, simply stated, involve: (1) Private nuisance; (2) enforcement of re­strictive covenants and (3) public policy.

Plaintiffs clearly have standing to raise the issues of nuisance abatement and enforcement of the restrictive covenants in the subdivision indenture. Persons threat­ened with wrongful interference of proper­ty rights may seek injunction against a threatened nuisance, Lee v. Rolla Speed­way, Inc., 494 S.W.2d 349 (Mo.1973), and the trust indenture regulating Kingsbury Place empowers the trustees or any property owner to bring suit to enforce the cove­nants. Under Rule 52.011 trustees of an express trust may bring a civil action in their own names in such representative ca­pacity. As to plaintiffs’ standing to raise the public policy issue, we must determine whether plaintiffs alleged a legally protec­tible interest. Allen v. Coffel, 488 S.W.2d 671, 674 (Mo.App.1972); Smith v. Cowen, 350 S.W.2d 96 (Mo.App.1961); Rule 52.01. Though defendants cite no authority on the question of whether private individuals have a legally protectible interest sufficient to give them standing to raise public policy issues, the question has been examined by federal courts in recent years. In United States v. S.C.R.A.P., 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), the Supreme Court held that members of an environmen­tal organization had standing to challenge a railroad surcharge on shipping rates of re­cyclable materials on allegation that the higher rates would discourage the use of recyclable waste materials and promote in­creased use of new raw materials, thus ad­versely affecting the environment. Plain­tiffs pleaded, more specifically, the environ­ment surrounding their legal residences would be affected, causing them direct, per­sonal injury. The Supreme Court recog­nized the test for standing as whether plaintiffs alleged that they had been or will in fact be perceptibly harmed by the chal­lenged action, not merely that they can imagine circumstances in which they might be harmed or that the actions are generally undesirable. This concept was restated in Coalition for the Environment v. Volpe, 504 F.2d 156, 165 (8th Cir. 1974), noting a dual test of whether the challenged action will cause plaintiffs injury in fact, and whether the injury is within the “zone of interests” created by statutes which plaintiffs con­tended were being violated, suggesting the need for a causal relationship between the action challenged and the injury complained of.

In Volpe the 8th circuit granted standing to individuals living near a proper­ty development who alleged that they would be injured by increased traffic and loss of open space. According to the court, such allegations constituted “statements of specific injury experienced by ascertainable individuals who reside near or pass through the affected area.” Coalition for the Envi­ronment v. Volpe, supra at 167. These con­siderations are applicable even when plain­tiffs raise aesthetic or environmental inter­ests which they wish to protect, or that these interests may be common to the en­tire community, so long as the named plain­tiffs are threatened with specific, personal injury. “Aesthetic and environmental well-­being, like economic well-being, are impor­tant ingredients of the quality of life in our society, and the fact that particular envi­ronmental interests are shared by the many rather than the few does not make them less deserving of legal protection . . . ” Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). See United States v. S.C.R.A.P., supra, 412 U.S. at 687, 93 S.Ct. 2405.

Whether #4 Kingsbury Place should be razed is an issue of public policy involving individual property rights and the community at large. The plaintiffs have pleaded and proved facts sufficient to show a personal, legally protectible interest.

Demolition of the dwelling will re­sult in an unwarranted loss to this estate, the plaintiffs and the public. The uncon­tradicted testimony was that the current value of the house and land is $40,000.00; yet the estate could expect no more than $5,000.00 for the empty lot, less the cost of demolition at $4,350.00, making a grand loss of $39,350.00 if the unexplained and capri­cious direction to the executor is effected. Only $650.00 of the $40,000.00 asset would remain.

Kingsbury Place is an area of high archi­tectural significance, representing excel­lence in urban space utilization. Razing the home will depreciate adjoining property values by an estimated $10,000.00 and ef­fect corresponding losses for other neigh­borhood homes. The cost of constructing a house of comparable size and architectural exquisiteness would approach $200,000.00.

The importance of this house to its neigh­borhood and the community is reflected in the action of the St. Louis Commission on Landmarks and Urban Design designating Kingsbury Place as a landmark of the City of St. Louis. This designation, under con­sideration prior to the institution of this suit, points up the aesthetic and historical qualities of the area and assists in stabiliz­ing Central West End St. Louis. It was testified by the Landmarks Commission chairman that the private place concept, once unique to St. Louis, fosters higher home maintenance standards and is among the most effective methods for stabilizing otherwise deteriorating neighborhoods. The executive director of Heritage St. Louis, an organization operating to pre­serve the architecture of the city, testified to the importance of preserving Kingsbury Place intact: 2

“The reasons [sic] for making Kingsbury Place a landmark is that it is a definite piece of urban design and architecture. It starts out with monumental gates on Union. There is a long corridor of space, furnished with a parkway in the center, with houses on either side of the street, . . . The existence of this piece of architecture depends on the continuity of the [sic] both sides. Breaks in this conti­nuity would be as holes in this wall, and would detract from the urban design qualities of the streets. And the richness of the street is this belt of green lot on either side, with rich tapestry of the indi­vidual houses along the sides. Many of these houses are landmarks in them­selves, but they add up to much more . . . I would say Kingsbury Place, as a whole, with its design, with its impor­tant houses . . . is a most signifi­cant piece of urban design by any stan­dard.”

To remove #4 Kingsbury from the street was described as having the effect of a missing front tooth. The space created would permit direct access to Kingsbury Place from the adjacent alley, increasing the likelihood the lot will be subject to uses detrimental to the health, safety and beau­ty of the neighborhood. The mere possibili­ty that a future owner might build a new home with the inherent architectural signif­icance of the present dwelling offers little support to sustain the condition for destruc­tion.

We are constrained to take judicial notice3 of the pressing need of the commu­nity for dwelling units as demonstrated by recent U.S. Census Bureau figures showing a decrease of more than 14% in St. Louis City housing units during the decade of the 60’s. This decrease occurs in the face of housing growth in the remainder of the metropolitan area.4 It becomes apparent that no individual, group of individuals nor the community generally benefits from the senseless destruction of the house; instead, all are harmed and only the caprice of the dead testatrix is served. Destruction of the house harms the neighbors, detrimentally affects the community, causes monetary loss in excess of $39,000.00 to the estate and is without benefit to the dead woman. No reason, good or bad, is suggested by the will or record for the eccentric condition. This is not a living person who seeks to exercise a right to reshape or dispose of her proper­ty; instead, it is an attempt by will to confer the power to destroy upon an execu­tor who is given no other interest in the property. To allow an executor to exercise such power stemming from apparent whim and caprice of the testatrix contravenes public policy.

The Missouri Supreme Court held in State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S.W. 806, 808 (banc 1918), that the taking of property by inheritance or will is not an absolute or natural right but one created by the laws of the sovereign power. The court points out the state “may foreclose the right absolutely, or it may grant the right upon conditions precedent, which conditions, if not otherwise violative of our Constitution, will have to be com­plied with before the right of descent and distribution (whether under the law or by will) can exist.” Further, this power of the state is one of inherent sovereignty which allows the state to “say what becomes of the property of a person, when death fore­closes his right to control it.” McClintock v. Guinotte, supra at 808, 809. While living, a person may manage, use or dispose of his money or property with fewer restraints than a decedent by will. One is generally restrained from wasteful expenditure or de­structive inclinations by the natural desire to enjoy his property or to accumulate it during his lifetime. Such considerations however have not tempered the extrava­gance or eccentricity of the testamentary disposition here on which there is no check except the courts.

In the early English case of Egerton v. Brownlow, 10 Eng.Rep. 359, 417 (H.L.C. 1853), it is stated: “The owner of an estate may himself do many things which he could not (by a condition) compel his successor to do. One example is sufficient. He may leave his land uncultivated, but he cannot by a condition compel his successor to do so. The law does not interfere with the owner and compel him to cultivate his land, (though it may be for the public good that land should be cultivated) so far the law respects ownership; but when, by a condi­tion, he attempts to compel his successor to do what is against the public good, the law steps in and pronounces the condition void and allows the devisee to enjoy the estate free from the condition.” A more recent application of this principle is found in M’Caig’s Trustees v. Kirk-Session of the United Free Church of Lismore, et al., 1915 Sess.Cas. 426 (Scot.). There, by codicil to her will, testatrix ordered certain statues erected to honor her family in a tower built in the form of an amphitheater on a hill. Balustrades were to be erected so that even the public would have no access inside the tower. Special provision was made for keeping out the public and the ground en­closed was expressly declared to be a pri­vate enclosure. There were no living de­scendants of any member of the family who might, if so permitted, take pleasure in contemplating the proposed statues. The court states at 434: “If a bequest such as in Miss M’Caig’s codicil were held good, money would require to be expended in perpetuity merely gratifying an absurd whim which has neither reason nor public sentiment in its favor.” In striking down the provisions of the codicil, the court further notes that there is indeed a “difference between what a man, uncognosed, may do at his own hand, and what the law will support under the provisions of his will . . . there­fore, without being illegal in the sense of being contrary to any express rule of the common law or contrary to any statute, the principle of public policy will prevent such post-mortem expenditure. Whether the act is sufficiently contrary to public policy to warrant the court’s interference must de­pend on the degree to which it is against public policy.” The court further observed that the erection of the eleven statues “would be of no benefit to anyone except those connected with the carrying out of the work, for whose interest she expresses no concern.” M’Caig’s Trustees v. Kirk-­Session of the United Free Church of Lismore, et al., supra at 438. In the case sub judice, testatrix similarly expressed no such concern; nothing in the will or record indi­cates an intent to benefit any razing com­pany called upon to destroy her beautiful home.

In the case of In re Scott’s Will, Board of Commissioners of Rice County v. Scott et al., 88 Minn. 386, 93 N.W. 109 (1903), the Supreme Court of Minnesota stated, when considering the provision of a will directing the executor to destroy money belonging to the estate: “We assume, for purpose of this decision, that the direction in the codicil to the executor to destroy all of the residue of the money or cash or evidences of credit belonging to the estate was void.” In re Scott’s Will, supra at 109. See also Re­statement, Second, Trusts § 124, at 267: “Although a person may deal capriciously with his own property, his self interest ordi­narily will restrain him from doing so. Where an attempt is made to confer such a power upon a person who is given no other interest in the property, there is no such restraint and it is against public policy to allow him to exercise the power if the pur­pose is merely capricious.” The text is fol­lowed by this illustration: “A bequeaths $1,000.00 to B in trust to throw the money into the sea. B holds the money upon a resulting trust for the estate of A and is liable to the estate of A if he throws the money into the sea.” Restatement, supra at 267.

In Brown v. Burdett, 21 Chan.Div. 667 (Eng.1882), the testatrix devised her house with directions that the doors and windows be boarded, shuttered, bricked and sealed, to be held by the trustees in this wasteful manner for twenty years and thereafter to the named beneficiaries as tenants in com­mon. This provision was stricken by the court at 673: “I think I must ‘unseal’ this useless, undisposed of property.” The pro­vision of the will was void and found to be a nullity and the court declared that the house and premises were undisposed of by will for a term of twenty years from the testatrix’s death.

In Restatement, Second, Trusts § 124(g), at 267, the writers suggest this hypothesis as an illustration of the principle involved in Brown v. Burdett, supra:

“A devises a house and lot to B ‘in trust’ to block up the windows and doors and leave the house vacant for 20 years. B holds the house and lot upon a resulting trust for the estate of A and is liable to the estate of A if he blocks up the win­dows and doors.”

It is important to note that the purposes of testatrix’s trust will not be defeated by injunction; instead, the proceeds from the sale of the property will pass into the resid­ual estate and thence to the trust estate as intended, and only the capricious destruc­tive condition will be enjoined.

In Colonial Trust Co. v. Brown et al., 105 Conn. 261, 135 A. 555 (1926) the court inval­idated, as against public policy, the provi­sions of a will restricting erection of build­ings more than three stories in height and forbidding leases of more than one year on property known as “The Exchange Place” in the heart of the City of Waterbury. The court stated:

“‘As a general rule, a testator has the right to impose such conditions as he pleases upon a beneficiary as conditions precedent to the vesting of an estate in him, or to the enjoyment of a trust estate by him as cestui que trust. He may not, however, impose one that is uncertain, unlawful, or opposed to public policy.’

In the instant case, the length of time during which the testator directed that the property should remain in the trust, and the complete uncertainty as to the individuals to whom it would ultimately go, preclude any thought of an intent on his part to forbid the cumbering of the property by long leases or the burdening of it with large buildings, lest the benefi­ciaries be embarrassed in the develop­ment of it along such lines as they might themselves prefer. The only other pur­pose which can be reasonably attributed to him is to compel the trustee to follow his own peculiar ideas as to the proper and advantageous way to manage such properties. That the restrictions are op­posed to the interests of the beneficiaries of the trust and that they are imprudent and unwise is made clear by the state­ment of agreed facts, but that is not all, for their effect is not confined to the beneficiaries. The Exchange Place prop­erty is located at a corner of the public square in the very center of the city of Waterbury, in the heart of the financial and retail business district, is as valuable as any land in the city, and is most favor­ably adapted for a large building contain­ing stores and offices, and the homestead is located in the region of changing char­acter, so that its most available use can­not now be determined. To impress the restrictions in question upon these prop­erties, as the statement of agreed facts makes clear, makes it impossible to obtain from them a proper income return or to secure the most desirable and stable class of tenants, requires for the maintenance of the buildings a proportion of income greatly in excess of that usual in the case of such properties, and will be likely to preclude their proper development and natural use. The effect of such condi­tions cannot but react disadvantageously upon neighboring properties, and to con­tinue them, as the testator intended, for perhaps 75 years or even more, would carry a serious threat against the proper growth and development of the parts of the city in which the lands in question are situated. The restrictions militate too strongly against the interests of the bene­ficiaries and the public welfare to be sus­tained, particularly when it is remem­bered that they are designed to benefit no one, and are harmful to all persons interested, and we hold them invalid as against public policy.” l.c. 564. (Empha­sis ours.)

See also Restatement, Second, Trusts § 166(b), pp. 348-349, and illustration at p. 349.

The term “public policy” cannot be com­prehensively defined in specific terms but the phrase “against public policy” has been characterized as that which conflicts with the morals of the time and contravenes any established interest of society. Acts are said to be against public policy “when the law refuses to enforce or recognize them, on the ground that they have a mischievous tendency, so as to be injurious to the inter­ests of the state, apart from illegality or immorality.” Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615, 620 (1946); Brawner v. Brawner, 327 S.W.2d 808, 812 (Mo. banc 1959).

Public policy may be found in the Constitution, statutes and judicial decisions of this state or the nation. In re Rahn’s Estate, 316 Mo. 492, 291 S.W. 120 (1927). But in a case of first impression where there are no guiding statutes, judicial deci­sions or constitutional provisions, “a judicial determination of the question becomes an expression of public policy provided it is so plainly right as to be supported by the general will.” In re Mohler’s Estate, 343 Pa. 299, 22 A.2d 680, 683 (1941). In the absence of guidance from authorities in its own jurisdiction, courts may look to the judicial decisions of sister states for assist­ance in discovering expressions of public policy. In re Rahn’s Estate, supra at 125.

Although public policy may evade precise, objective definition, it is evident from the authorities cited that this senseless destruc­tion serving no apparent good purpose is to be held in disfavor. A well-ordered society cannot tolerate the waste and destruction of resources when such acts directly affect important interests of other members of that society. It is clear that property own­ers in the neighborhood of #4 Kingsbury, the St. Louis community as a whole and the beneficiaries of testatrix’s estate will be severely injured should the provisions of the will be followed. No benefits are present to balance against this injury and we hold that to allow the condition in the will would be in violation of the public policy of this state.

Having thus decided, we do not reach the plaintiffs’ contentions regarding enforce­ment of the restrictions in the Kingsbury Place trust indenture and actionable private nuisance, though these contentions may have merit.5

The judgment is reversed and the cause remanded to the Circuit Court to enter judgment as prayed.

1

All references are to V.A.M.R. unless otherwise indicated.

2

#4 Kingsbury Place was rated as being “highly architecturally significant”.

3

State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 424 S.W.2d 73[11] (Mo.App.1968); State ex rel. State Highway Commission v. Galeener, 402 S.W.2d 336[2] (Mo.1966); McCormick, Evidence (2nd Ed.) § 331.

4

OWNER OCCUPIED UNITS

1960 1970 Change

Metropolitan Area

without St. Louis 269,873 347,443 +29%

St. Louis City 68,967 62,359 -10%

RENTER OCCUPIED UNITS

Metropolitan Area

without St. Louis 82,539 128,005 +55%

St. Louis City 153,771 127,620 -17%

The figure of 14% represents the total decline of own­er occupied and renter occupied units.

SOURCE: Census of Housing, United States Census Bureau, St. Louis SMSA Abstract.

5

The dissenting opinion suggests this case be decided under the general rule that an owner has exclusive control and the right to untrammeled use of real property, citing Reutner v. Vouga, 367 S.W.2d 34 (Mo.App.­1963), City of Fredericktown v. Osborn, 429 S.W.2d 17 (Mo.App.1968), and Gibbs v. Cass, 431 S.W.2d 662 (Mo.App.1968). Al­though maxims of this sort are attractive in their simplicity, standing alone they seldom suffice in a complex case. None of the cited cases pertains to the qualified right of testa­trix to impose, post mortem, a condition upon her executor requiring an unexplained destruction of estate property; instead, they involve, respectively, surface water, use of property for commercial purposes and re­strictive covenants as to subdivision lot sizes. Each acknowledges the principle of an owner’s “free use” as the starting point but all recognize competing interests of the community and other owners of great im­portance. Accordingly, the general princi­ple of “free and untrammeled” use is mark­edly narrowed, supporting in each case a result opposite that urged by the dissent in the case at bar.

CLEMENS, Judge

(dissenting).

I dissent.

My initial, but not dominant, concern is the inadequacy of plaintiffs’ brief. Despite the mandate of Rule 84.04(c) that an appel­lant’s brief present a concise statement of relevant facts, plaintiffs’ brief merely sets out separate testamentary summaries by each of ten witnesses. Such summaries are permissible to supplement, but not to sup­plant, a concise statement of relevant facts. Plaintiffs’ inexcusable breach imposes upon the court a burden we should not assume, and this appeal should be dismissed for fail­ure to comply with Rule 84.04(c). Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223[3] (Mo.App.1972). In view of the majority opinion, however, I have considered the al­ternative of Rule 79.04, which allows us to rule a case on its merits if we find plain error constituting a miscarriage of justice. But I find no plain error here.

The simple issue in this case is whether the trial court erred by refusing to enjoin a trustee from carrying out an explicit testa­mentary directive. In an emotional opin­ion, the majority assumes a psychic knowl­edge of the testatrix’ reasons for directing her home be razed; her testamentary dispo­sition is characterized as “capricious,” “un­warranted,” “senseless,” and “eccentric.” But the record is utterly silent as to her motives.

The majority’s reversal of the trial court here spawns bizarre and legally untenable results. By its decision, the court officious­ly confers a “benefit” upon testamentary beneficiaries who have never litigated or protested against the razing. The majority opinion further proclaims that public policy demands we enjoin the razing of this pri­vate residence in order to prevent land mis­use in the City of St. Louis. But the City, like the beneficiaries, is not a party to this lawsuit. The fact is the majority’s holding is based upon wispy, self-proclaimed public policy grounds that were only vaguely pleaded, were not in evidence, and were only sketchily briefed by the plaintiffs.

The only plaintiffs in this case are resi­dents of Kingsbury Place and trustees un­der its indenture. In seeking to enjoin the removal of testatrix’ home at #4 Kings­bury Place, these plaintiffs claim they are entitled to an injunction first, by virtue of language in the trust indenture; secondly, because the razing would constitute a nui­sance; and thirdly on the ground of public policy. But plaintiffs have not shown the indenture bars razing testatrix’ home or that the razing would create a nuisance. And no grounds exist for ruling that the razing is contrary to public policy.

The Trust Indenture. Kingsbury Place is a “private place” established in 1902 by trust indenture. Except for one well-tend­ed vacant lot (whose existence the majority ignores in saying the street minus #4 Kingsbury Place would be like “a missing front tooth”) the trust indenture generally regulates size, constructions and cost of structures to be built on Kingsbury Place. It empowers the trustees to maintain va­cant lots and to protect the street from “encroachment, trespass, nuisance and inju­ry.” The indenture’s acknowledgment that vacant lots did and would exist shows that such lots were not to be considered an “in­jury.” The fact the indenture empowers the trustees to maintain vacant lots is nei­ther an express nor an implied ban against razing residences. The indenture simply recognizes that Kingsbury Place may have vacant lots from time to time—as it now has—and that the trustees may maintain them—as they now do. The indenture it­self affords plaintiffs no basis for injunc­tive relief.

Nuisance. Plaintiffs contend the non-ex­istence of the Johnston dwelling would cre­ate a nuisance. Plaintiffs opined the home’s removal would be detrimental to neighbors’ health and safety, would lower property values in the area and would be undesirable aesthetically, architecturally, socially and historically. These opinions were based upon conjecture rather than upon a reasonable degree of certainty; hence, they were not binding on the trial court. Kinzel v. West Park Investment Corp., 330 S.W.2d 792[3] (Mo.1959); Aber­nathy v. Coca-Cola Bottling Co. of Jackson, 370 S.W.2d 175[1, 2] (Mo.App.1963). Plain­tiffs’ witnesses made questionable compari­sons with other neighborhoods and speculat­ed a nuisance would arise if the dwelling were removed. These witnesses concluded the lot would thereafter remain vacant, be­cause the trustees would breach their duty under the indenture to maintain the lot, and because the existing private police pa­trol would no longer function. None of these conclusions have bases in fact. The record reveals the one existing vacant lot on Kingsbury Place is well-maintained by the trustees; it does not constitute a nui­sance. There is no reason to presume a second vacant lot would be left untended or that private police would cease patrolling. The facts do not support an inference that plaintiffs’ rights in the use of their own lands would be invaded by removing the Johnston home. They are not entitled to injunctive relief on the basis of imagined possibilities.

Public Policy. The majority opinion bas­es its reversal on public policy. But plain­tiffs themselves did not substantially rely upon this nebulous concept. Plaintiffs’ brief contends merely that an “agency of the City of St. Louis has recently [?] desig­nated Kingsbury Place as a landmark,” cit­ing § 24.070, Revised Code of the City of St. Louis. Plaintiffs argue removal of the Johnston home would be “intentional . . . destruction of a landmark of historical in­terest.” Neither the ordinance cited in the brief nor any action taken under it were in evidence. Indeed, the Chairman of the Landmarks and Urban Design Commission testified the Commission did not declare the street a landmark until after Mrs. Johnston died. A month after Mrs. Johnston’s death, several residents of the street apparently sensed the impending razing of the John­ston home and applied to have the street declared a landmark. The Commissioner testified it was the Commission’s “civic duty to help those people.”

The majority opinion goes far beyond the public-policy argument briefed by plain­tiffs. It suggests the court may declare certain land uses, which are not illegal, to be in violation of the City’s public policy. And the majority so finds although the City itself is not a litigant claiming injury to its interests. The majority’s public-policy con­clusions are based not upon evidence in the lower court, but upon incidents which may have happened thereafter.

The court has resorted to public policy in order to vitiate Mrs. Johnston’s valid testa­mentary direction. But this is not a proper case for court-defined public policy.

In Asel v. Order of Commercial Travelers, 355 Mo. 658, 197 S.W.2d 639[1] (banc 1946), the court viewed as contrary to public poli­cy any act that is inherently vicious and contrary to natural justice. The Asel court further cited as the definitive statement of public policy “the principle which declares that no one can lawfully do that which has a tendency to be injurious to the public welfare. 12 Am.Jur., § 666, now 12 Am. Jur.2d, § 175. But plaintiffs’ theory below was that only the plaintiffs, not the public, were injured by the imminent demolition of the Johnston home.

The leading Missouri case on public policy as that doctrine applies to a testator’s right to dispose of property is In re Rahn’s Es­tate, 316 Mo. 492, 291 S.W. 120 [1, 2] (banc 1927), cert. den. 274 U.S. 745, 47 S.Ct. 591, 71 L.Ed. 1325. There, an executor refused to pay a bequest on the ground the benefi­ciary was an enemy alien, and the bequest was therefore against public policy. The court denied that contention: “We may say, at the outset, that the policy of the law favors freedom in the testamentary disposi­tion of property and that it is the duty of the courts to give effect to the intention of the testator, as expressed in his will, provid­ed such intention does not contravene an established rule of law.” And the court wisely added, “it is not the function of the judiciary to create or announce a public policy of its own, but solely to determine and declare what is the public policy of the state or nation as such policy is found to be expressed in the Constitution, statutes, and judicial decisions of the state or nation,1 not by the varying opinions of laymen, lawyers, or judges2 as to the demands or the interests of the public.” And, in cautioning against judges declaring pub­lic policy the court stated: “Judicial tribu­nals hold themselves bound to the observ­ance of rules of extreme caution when in­voked to declare a transaction void on grounds of public policy, and prejudice to the public interest must clearly appear be­fore the court would be warranted in pro­nouncing a transaction void on this account.” In resting its decision on public-­policy grounds, the majority opinion has transgressed the limitations declared by our Supreme Court in Bahn’s Estate.

The right of these plaintiffs to injunctive relief is by no means clear and injunction is “a harsh remedy, granted only in clear cases.” American Pamcor, Inc., v. Klote, 438 S.W.2d 287[1] (Mo.App.1969). It re­quires judicial imagination to hold, as the majority does, that the mere presence of a second vacant lot on Kingsbury Place vio­lates public policy.

As much as our aesthetic sympathies might lie with neighbors near a house to be razed, those sympathies should not so inter­fere with our considered legal judgment as to create a questionable legal precedent. Mrs. Johnston had the right during her lifetime to have her house razed, and I find nothing which precludes her right to order her executor to raze the house upon her death. It is clear that “the law favors the free and untrammeled use of real proper­ty.” Gibbs v. Cass, 431 S.W.2d 662[2] (Mo. App.1968). This applies to testamentary dispositions. Mississippi Valley Trust Co. v. Ruhland, 359 Mo. 616, 222 S.W.2d 750[2] (1949). An owner has exclusive control over the use of his property subject only to the limitation that such use may not sub­stantially impair another’s right to peace­ably enjoy his property. City of Fredrick­town v. Osborn, 429 S.W.2d 17[2, 3] (Mo.­App.1968), Reutner v. Vouga, 367 S.W.2d 34[11-13] (Mo.App.1963). Plaintiffs have not shown that such impairment will arise from the mere presence of another vacant lot on Kingsbury Place.

I find no plain error in the trial court’s denial of injunctive relief, and on the merits I would affirm the trial court’s judgment. Because of plaintiffs’ defective brief, how­ever, I would dismiss the appeal.

1

See also Phoenix Assurance Co. of N.Y. v. Royale Investment Co., 393 S.W.2d 43[1] (Mo.App.1965), holding “public policy is not an unknown and variable quantity upon which a valid judgment may be based. It is to be determined by the Constitution, the laws, and the judicial decisions of the State.”

2

In his treatise on The Nature of the Judi­cial Process, p. 141, Mr. Justice Benjamin Cardozo discussed the role of the judge as a legislator and warned: “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benev­olence.”