                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1651
                                    ___________

Jack Randall; Pearl Randall,             *
                                         *
            Appellants,                  *
                                         *   Appeal from the United States
      v.                                 *   District Court for the
                                         *   Eastern District of Missouri
Federated Retail Holdings, Inc.,         *
                                         *
            Appellee.                    *

                                    ___________

                               Submitted: November 14, 2005
                                  Filed: November 23, 2005
                                   ___________

Before MURPHY, McMILLIAN, and GRUENDER, Circuit Judges.
                          ___________

McMILLIAN, Circuit Judge

       In this diversity action, Jack and Pearl Randall appeal from a final order
entered in the United States District Court1 for the Eastern District of Missouri
granting a Directed Verdict in favor of May Department Stores Co. (“May”), 2 in
their nuisance case. On appeal, the Randalls challenge the district court’s Directed


      1
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
      2
       Now Federated Retail Holdings, Inc.
Verdict on their nuisance claim and the district court’s granting of May’s Motion In
Limine No. 1, restricting the Randalls’ proof of damages to those damages accrued
as of the date of filing of the initial complaint. For the reasons discussed below, we
affirm the judgment of the district court.


                                   Background

       In 1961, May purchased the property to the east and south of the four-story
building located at 224 North Seventh Street in St. Louis, Missouri (the “Randall
Building”). In 1962, May built a multi-story parking garage with basement level
parking on its property immediately adjacent to the Randall Building. Only six to
eight inches separate the east wall of the Randall Building and the west wall of May’s
parking garage.

      In March 1962, May and the then-owners of the Randall Building entered into
a license agreement under which May built an emergency exit on its property
allowing exiting from the basement restaurant in the Randall Building into the
stairwell of May’s parking garage for emergency purposes. The license agreement
provided it would expire if certain events occurred affecting May’s parking garage
or on March 31, 2000.

       In 1976, the Randalls purchased the Randall Building, knowing that the
second, third and fourth floors of the building did not have any emergency exits. The
Randalls wished to convert the top three floors to residential use. In order to do so,
the City of St. Louis required the Randalls to install an emergency exit on the fourth
floor of the building.

      On January 5, 1978, the Randalls and May entered into a license agreement
granting the Randalls a license for emergency exiting purposes from the second, third


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or fourth floors of the Randall Building into the stairwell of May’s parking garage.
Like the 1962 license agreement, the 1978 license agreement provided that it would
expire no later than March 31, 2000. May broke through its parking garage wall to
accommodate the emergency exit on the fourth floor of the Randall Building, and,
like the basement exit, the fourth floor exit entered into May’s property.

      In 1978, the Randalls installed a new sprinkler system in the basement of the
Randall Building. Pursuant to an oral license, May permitted the Randalls to use
May’s private waterline as a source of water for the Randall Building’s sprinkler
system.

      In 2000, May sent the Randalls notice that the licenses for the emergency exits
from the Randall Building into May’s parking garage were expiring on March 31,
2000. In early 2000, May offered to lease the first floor of the Randall building for
$20 per square foot, and the Randalls rejected it. In February 2000, May offered to
purchase the Randall Building for $350,000, and again the Randalls rejected the offer.

      On March 31, 2000, the license agreements for the emergency exits expired.
On April 25, 2000, May revoked the oral license permitting the Randalls to use the
waterline. May capped the water supply to the fire sprinkler system in the Randall
Building, and on April 25, 2002, May sealed the emergency exits from the Randall
Building into the stairwell of May’s parking garage.

     The Randalls installed a new water connection for the sprinkler system in the
basement of their building at a cost of $33,142.00.

       The Randalls filed suit against May on February 25, 2003, in the Circuit Court
of St. Clair County, Illinois. The Randalls sought monetary damages based upon
state common law claims, including interference with the right of quiet enjoyment,
tortious interference with prospective economic advantage, and nuisance. May

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removed the case to the U.S. District Court for the Southern District of Illinois based
on diversity jurisdiction. The case was then transferred to the U.S. District Court for
the Eastern District of Missouri.

       On May 23, 2003, May filed a Motion to Dismiss, or in the alternative, a
Motion for More Definite Statement, asserting that the Randalls failed to plead the
necessary elements of their stated causes of action. The district court allowed the
Randalls to file an amended complaint. The Randalls’ Second Amended Complaint
alleged that May: (1) interfered with their right of quiet enjoyment (Count I); (2)
tortiously interfered with their prospective economic advantage (Count II); and (3)
created a nuisance (Count III). The Randalls also claimed a right to an “easement by
necessity” (Count IV).

       On February 26, 2003, the district court dismissed the Randalls’ claims for
interference with the right of quiet enjoyment (Count I), tortious interference with
prospective economic advantage (Count II), and imposition of an easement by
necessity (Count IV). The nuisance claim (Count III) remained the issue for trial.

       Prior to trial, the district court granted May’s Motion In Limine No. 1,
restricting the Randalls’ proof of damages to those damages that had accrued as of the
date of filing of the initial Complaint because the Randalls failed to specifically
request an injunction in the prayer for relief of Count III.

        A jury trial began on November 15, 2004. On November 17, 2004, at the
conclusion of the Randalls’ evidence, the district court granted May’s Motion for a
Directed Verdict, entering judgment in favor of May. On December 2, 2004, the
Randalls filed their Motion to Vacate the Directed Verdict Finding. The district court
denied the Randalls’ contention that the reasonableness of the defendant’s land use
is the primary question in a nuisance suit. Instead, the district court held that “before
issues of reasonableness can be addressed by the jury, Plaintiffs must demonstrate

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that they have a right susceptible to legal protection under Missouri nuisance law.”
Relying on 44 Plaza, Inc. v. Gray-Pac Land Co., 845 S.W.2d 576 (Mo. Ct. App.
1992) (44 Plaza, Inc.), the district court further held that the Randalls did not
demonstrate a right susceptible to legal protection and denied the Randalls’ Motion
to Vacate. The Randalls appealed.

                                      Discussion

       We review the grant of a motion for directed verdict de novo, applying the
same standard used by the district court, which is Fed. R. Civ. P. 50. Arabian
Agriculture Services Co. v. Chief Industries, Inc., 309 F.3d 479, 482 (8th Cir. 2002).
Under Fed. R. Civ. P. 50, a judgment as a matter of law is appropriate “if during a
trial by jury a party has been heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue.” Fed. R.
Civ. P. 50(a)(1).

        The Randalls first challenge the district court’s reliance on the nuisance
standard stated in 44 Plaza, Inc. In that case, the court held that “[o]ne of the
prerequisites to a cause of action for nuisance is that the right of enjoyment which is
impaired must be a right that is susceptible to legal protection.” 845 S.W.2d at 578.
First, the Randalls contend that they did have rights susceptible to legal protection:
(1) to be able to escape their residence safely in the event of fire, (2) to be able to
occupy their home, (3) to be able to maintain the use of their building for residential
use, (4) to be able to rent the commercial portion of their building, and (5) to be able
to use or sell their building for a fair market price. The Randalls contend these rights
are distinguishable from the right to a view, which was the focus of 44 Plaza, Inc. and
which was held to be an unprotected right. See id.

      Each one of the rights the Randalls assert existed only because of the license
agreements. Once the license agreements expired, the Randalls were no longer able

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to rely on May to provide them these rights. In Missouri, “[a] license is a privilege
to enter certain premises for a stated purpose and does not vest any title, interest or
estate in the licensee.” Hill v. Eads, 970 S.W.2d 882, 883 (Mo. Ct. App. 1998) (citing
Hermann v. Lynnbrook Land Co., 806 S.W.2d 128, 130 (Mo. Ct. App.1991)).
Because May no longer had any obligation to provide the Randall Building with fire
escapes and water to the sprinkling system, it was proper for May to seal its exits and
sever its waterline to prevent others from using May’s property without May’s
consent. By allowing the licenses to expire pursuant to the license agreements, May
and the Randalls simply put the Randall Building in the same place it was before
those agreements came into being.

       The Randalls next contend that the district court was wrong to rely on 44
Plaza, Inc. First, the Randalls claim that the standard set forth in dicta in Howe v.
Standard Oil Co. of Indiana, 150 S.W.2d 496 (Mo. Ct. App. 1941), is the appropriate
standard for nuisance. In Howe, the court stated that “[t]here must be something more
[than merely the inconvenience of neighbors to enjoin a property owner from doing
lawful acts], such as an injurious invasion of a fixed and determined property right,
or a use creating a discomfort in the enjoyment of the property which threatens the
health or welfare of the occupant, with resultant injury to property.” Id. at 497. The
Randalls claim that the district court applied only the first part of the test to rule that
no “fixed and determined property right” had been invaded. The Randalls contend
the district court erred in failing to apply the second part of the test to determine
whether the Randalls’ use created a “discomfort in the enjoyment of the property
which threaten[ed] the health or welfare of the occupant, with resultant injury to
property.” Id. The Randalls assert that May’s cutting off the water and blocking the
emergency exits threatened the health and welfare of the Randall Building’s
occupants and resulted in the severe diminution of the Randall Building’s value.

      Howe helps May more than the Randalls. The court in Howe decided that no
nuisance had occurred because “Plaintiff’s real contention is Defendant should permit

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the use of its land as part of the right of way to Plaintiff’s land” and no “right of way
in defendant’s premises [existed], either by prescription or by grant, which might be
protected by an injunction.” Id. The Randalls, like the plaintiffs in Howe, seek to
physically use May’s property without a right to do so by prescription or grant.

       Finally, the Randalls claim that “nuisance is the unreasonable, unusual, or
unnatural use of one’s property so that it substantially impairs the right of another to
peacefully enjoy his [or her] property.” Frank v. Environmental Sanitation Mgmt.,
687 S.W.2d 876, 880 (Mo. 1985) (en banc). The Randalls claim that the focus should
be on the reasonableness of May’s actions and that reasonableness is a question for
the jury, not the judge. The Randalls argue that May’s sealing the emergency exits
and capping the water line constitute unreasonable uses of May’s property because
these acts were done only to force the Randalls to sell the Randall Building for a price
far below market value.

      Reasonableness is a question for the jury; however, the issue of reasonableness
and the balancing of the above-mentioned factors can only occur after the plaintiff
has presented a submissible case. Under Missouri law, a submissible nuisance claim
requires a right of enjoyment susceptible to legal protection. 44 Plaza, Inc., 845
S.W.2d at 578. Here, each of the rights that the Randalls claim stem from the expired
license agreements.

       The Randalls also challenge the district court’s ruling on May’s Motion In
Limine No. 1, restricting the Randalls’ proof of damages to those damages accrued
as of the date of filing the initial Complaint. However, because the Randalls failed
to make a submissible case of nuisance, we need not address the issue of the scope
of damages.




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                             Conclusion

For the above stated reasons, we affirm the district court’s judgment.

                 _____________________________




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