United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-2964

___________________________

Chase Barfield

lllllllllllllllllllll Plaintiff

Michael D. Biffle; Gina Biffle; Dwight K. Robertson

lllllllllllllllllllll Plaintiffs - Appellees

J. Carol Hutchens; Rowena Hutchens

lllllllllllllllllllll Plaintiffs

v.

Sho-Me Power Electric Cooperative; Sho-Me Technologies, LLC

lllllllllllllllllllll Defendants - Appellants

KAMO Electric Cooperative, Inc.; K-PowerNet, LLC

lllllllllllllllllllll Defendants

------------------------------

National Rural Electric Cooperative Association; Associated Electric Cooperative;

Association of Missouri Electric Cooperatives

lllllllllllllllllllllAmici on Behalf of Appellants

____________

Appeal from United States District Court 

for the Western District of Missouri - Jefferson City
____________

 Submitted: September 22, 2016

 Filed: March 29, 2017

____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

____________

BENTON, Circuit Judge.

This case is about the scope of easements under Missouri law and the remedies

if easement holders exceed their rights. Sho-Me Power Cooperative held easements

to construct and operate an electric transmission line over thousands of parcels. In

1997, it decided to install fiber-optic cables alongside its electrical lines. Sho-Me

used the cables for internal communications. Sho-Me assigned the cables’ excess

capacity to a separate company, Sho-Me Technologies, LLC (Tech), to operate a

public-serving commercial telecommunications business. A putative class of owners

of land subject to Sho-Me’s easementssued Sho-Me and Tech for trespass and unjust

enrichment. The district court certified a class oflandowners, granted the landowners

summary judgment on liability, and held a jury trial on damages. The district court

instructed the jury to award the landowners “the fair market rental value” of Sho-Me

and Tech’s use of the fiber-optic cable on the landowner’s land “for

commercial-telecommunications purposes.” The jury awarded the landowners over

$79 million.

Sho-Me and Tech appeal the liability determinations, damages instructions,

evidentiary rulings, and class certification. Having jurisdiction under 28 U.S.C.

§ 1291, this court affirms the summary judgment on trespass liability and the class

certification, reverses the summary judgment on unjust-enrichment liability, vacates

the damages award, and remands.

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I.

Sho-Me is a rural electric cooperative (REC) governed by Missouri’s Rural

Electric Cooperative Law, Chapter 394 RSMo. Before 1992, Sho-Me got easements

acrossthousands of parcels in southern Missouri. These easements’ language varies. 

They all grant Sho-Me the right to construct and operate an electric transmission line. 

Some grant the right to construct appurtenances or do things “necessary and useful

to the enjoyment of the easement.” The district court broke the easements into

several categories, three at issue in this appeal: Category 1A (“Easementsfor electric

transmission line only or for electric transmission line with unspecified

appurtenances”), Category 1B (“Easements for electric transmission lines and

appurtenanceswhich include specific referencesto communications equipment”), and

Category 1C (“Court orders condemning easements limited to electric transmission

lines and generic appurtenances or specifying related communications equipment”). 

Sho-Me and Tech do not dispute the district court’s categorizations.

As part of its electrical transmission operations, Sho-Me communicates with

unattended power substations. It used to do this by microwave radio frequencies. 

But in 1995, the Federal Communications Commission announced that these

frequencies would no longer be available for utilities. In response, Sho-Me

developed a plan. It installed fiber-optic cables alongside its electrical lines, using

the cables for internal communications. It also formed Tech as a subsidiary company. 

Sho-Me assigned Tech the cables’ excess capacity so Tech could offer commercial

telecommunications services to the public. Tech currently provides broadband

services to individuals and businesses across southern Missouri.

In 2010 (in state court) and then in 2011 (in federal court), Michael and Gina

Biffle, Dwight Robertson, and Chase Barfield—owners of land subject to Sho-Me

easements—filed putative class actions against Sho-Me and Tech. They alleged

Tech’s use of the fiber-optic cable for public-serving telecommunications purposes

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was not authorized by the easements, making Sho-Me and Tech liable for trespass and

unjust enrichment. The district court certified a Rule 23(b)(3) class of “All persons

who own or owned land in Missouri underlying Defendants’ electric-transmission

lines that is burdened by an easement with either Defendant or their subsidiaries,

which easement does not contain an arbitration clause, and on or in which a

Defendant has licensed the fiber optic cable for commercial-telecommunication uses

or has used the fiber optic cable for commercial-telecommunication uses.” The

district court entered summary judgment against Sho-Me and Tech, holding them

liable for trespass and unjust enrichment on the Category 1A-C easements. The

1

landowners proceeded to a jury trial for damages on the unjust-enrichment claim

alone. The jury awarded the landowners $79,014,140 for the “fair market rental

value” of Sho-Me and Tech’s unauthorized use of the easements.

II.

Sho-Me and Tech contend that the district court erred in granting summary

judgment on liability because it misconstrued Missouri easement law. This court

reviews de novo the district court’s summary judgment decision. Walker v. Hartford

Life & Accident Ins. Co., 831 F.3d 968, 973 (8th Cir. 2016). It also reviews de novo

the district court’s interpretation of Missouri law. Id. When interpreting Missouri

law, this court is “bound by the decisions of the Supreme Court of Missouri. If the

Supreme Court of Missouri has not addressed an issue, we must predict how the court

would rule, and we follow decisions from the intermediate state courts when they are

the best evidence of Missouri law.” Washington v. Countrywide Home Loans, Inc.,

747 F.3d 955, 957-58 (8th Cir. 2014). Since the parties do not point to any genuine

dispute of material fact, the question is whether Sho-Me and Tech’s use of the fiberThe district court granted summary judgment to Sho-Me and Tech on 1

easements in the remaining categories.

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optic cable for commercial telecommunications makes it liable under Missouri law

for trespass and unjust enrichment.

A.

The landowners argue—and the district court found—that Sho-Me and Tech

are liable for trespass under Missouri law for exceeding the scope of Sho-Me’s

easements. This argument raises two questions. First, did Sho-Me and Tech’s use

exceed the scope of the easements? And second, if their use did exceed the scope of

the easements, was it a trespass?

1.

An easement is “a right to use the land for particular purposes.” St. Charles

Cty. v. Laclede Gas Co., 356 S.W.3d 137, 139 (Mo. banc 2011); Farmers Drainage

Dist. of Ray Cty. v. Sinclair Ref. Co., 255 S.W.2d 745, 748 (Mo. 1953) (“An

‘easement’ is not the complete ownership of land with the right to use it for all lawful

purposes perpetually and throughout its entire extent, but it is a right only to one or

more particular uses . . . .”). Some easements in Categories 1A-C explicitly refer to

a purpose with language like “for the purpose oftransmitting electric or other power,”

“for electrification purposes,” “for electrical power utility and related communication

purposes,” “for the purpose of transmitting and supplying electric energy.” Other

easements do not explicitly state a “purpose,” but do specifically grant the right to

construct an electric transmission line.

The parties agree that the easements give Sho-Me the right to install and use

fiber-optic cables for internal communications related to supplying electricity. They

disagree whether the easements give Sho-Me and Tech the right to use fiber-optic

cables installed on the easement land for commercial telecommunications purposes

unrelated to supplying electricity.

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A Missouri statute, § 523.283 RSMo, governs the use of easements acquired

after August 28, 2006, by a utility or REC. It requires “appropriate consideration and

damages to the current owner of the property” for “Expanded use of the property

beyond that which is described in the instrument of conveyance or the condemnation

petition.” § 523.283.1. It defines “expanded use” to include “An increased footprint

or burden,” meaning “a different type of use or a use presenting an unreasonably

burdensome impact.” § 523.283.2(2).

The closest case applying § 523.283 is Carroll Electric Cooperative Corp. v.

Lambert, 403 S.W.3d 637 (Mo. App. 2012). There, an REC petitioned to condemn

easements “to erect, operate, survey, maintain . . . one or more electric power

transmission and/or distribution line(s) and appurtenant communication lines . . . and

to license, permit, or otherwise agree to the joint use or occupancy of the line or

system by any other person, association or corporation for electrification or

communication purposes. . . .” Id. at 641 (alterationsin original) (emphasis omitted). 

Landowners challenged the condemnation petitions. They conceded the REC could

install appurtenant communications lines, but argued that the “joint use or

occupancy” provision would permit the cooperative to allow a company like

Mediacom or Verizon to use the easementsfor communications purposes. Id. at 644. 

The REC said that while “the joint occupancy provision in these easements allow

[sic] other electric cooperatives to buy and sell electricity to each other,” it did not

allow any non-electricity uses. Id. at 644-45. The court agreed with the REC that

“any use other than for electricity is an expanded use of the proposed easements that

would be prohibited by § 523.283.” Id. at 645.

Section 523.283 applies only to easements acquired after August 28, 2006, so

it does not govern Sho-Me’s easements. But Carroll Electric’s analysis isinstructive

because § 523.283 does not change earlier law. The Carroll Electric court suggests

this by noting, “Landowners do not mention § 523.283, but instead rely on cases

involving expanded uses that predate the statute’s enactment in 2006.” 403 S.W.3d

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at 646 n.6, citing Eureka Real Estate & Inv. Co. v. S. Real Estate & Fin. Co., 200

S.W.2d 328 (Mo. 1947), and Ogg v. Mediacom, L.L.C., 142 S.W.3d 801 (Mo. App.

2004). See also Dale A. Whitman, Eminent Domain Reform in Missouri: A

Legislative Memoir, 71 Mo. L. Rev. 721, 753 (2006) (stating that § 523.283 “makes

no change in existing law at all”). See generally Mid-Am. Television Co. v. State 2

Tax Comm’n, 652 S.W.2d 674, 679 (Mo. banc 1983) (explaining that while a new

statute generally changes the existing law, a statute can also simply clarify existing

law). Section 523.283 appears to codify the Missouri law on the use of easements

held by RECs and utilities.

Pre-2006 Missouri case law, which controls this case, is fully consistent with

§ 523.283 and Carroll Electric. In Eureka, a street railway condemned an easement

for the “purpose of the railroad ‘together with all necessary sidetracks, turnouts,

stations, power houses, sheds, yards, poles, wires and other appliances and means

necessary and convenient for and appurtenant to the same.’” 200 S.W.2d at 330. The

Supreme Court of Missouri explained that this easement allowed the railway’s

successor to maintain a power line “to furnish power to streetcars.” Id. It held that

The Missouri Court of Appeals has relied on Professor Whitman’s article to 2

determine the meaning of another part of the 2006 statute. See Planned Indus.

Expansion Auth. of Kansas City v. Ivanhoe Neighborhood Council, 316 S.W.3d

418, 426-27 (Mo. App. 2010). A unanimous Supreme Court of Missouri has relied

on Whitman’s article to hold that a judicial remedy coexists with a remedy created by

the 2006 statute. See Clay Cty. Realty Co. v. City of Gladstone, 254 S.W.3d 859,

864, 867-68 (Mo. banc 2008). One supreme court judge quoted Whitman’s article

to support the conclusion thatsome language in the 2006 statute “codified” case law. 

See Centene Plaza Redevelopment Corp. v. Mint Props., 225 S.W.3d 431, 436 n.2

(Mo. banc 2007) (Stith, J., concurring). In predicting how the Supreme Court of

Missouri would decide this issue, Whitman’s article is persuasive evidence of the

meaning of § 523.283. In any event, this court does not rest its determination that

§ 523.283 codifies earlier Missouri law solely on Whitman’s article. That

determination rests largely on the consistency between pre-2006 case law, and

§ 523.283 and Carroll Electric.

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the easement did not authorize the railway’s successor to permit an electric company

to construct an “additional power line” that had “no connection whatever with the

electric lines or purposes of the street railway.” Id. at 332. Accord Ogg, 142 S.W.3d

at 808-10 (cable TV company’s installation of fiber-optic cables not authorized by

electric cooperative’s prescriptive easement).

The Eureka court quoted from dicta in St. Louis, I.M. & S. Ry. v. Cape

Girardeau Bell Telephone Co., 114 S.W. 586 (Mo. App. 1908), addressing an

easement use nearly identical to Sho-Me and Tech’s: where a “railroad right of way

consists of an easement only . . . and the telegraph is constructed thereon under a

contract with the railroad company for the purpose of serving the railroad in its

operations; but for the purpose, as well, on the part of the telegraph company, to serve

the general public as a commercial enterprise.” Id. at 588. Under those

circumstances, “in so far asthe telegraph company servesthe purpose of the railroad,

its occupancy of the right of way easement is not an additional servitude or burden

upon the fee of which he may complain” because “such use is a legitimate

development for railroad purposes essentially contemplated in the grant of the

easement.” Id. It further explained that use for the additional public-serving

telecommunications purpose would not be permitted:

Nevertheless, in so far as the telegraph or telephone company thus

rightfully occupying the right of way serves the general public as a

commercial enterprise, distinct from the avocation of the railroad, it

constitutes a use of the right of way easement other than for railroad

purposes, and it is therefore a servitude not contemplated in the original

grant and a burden upon the fee of which the adjacent owner may

rightfully complain. It is obvious the transmission of intelligence by

means of electricity to all the world who may be willing to pay for the

service is not a railroad use, and such service is certainly not

contemplated within the grant of the railroad right of way, for it is

entirely disassociated therefrom.

-8-
Id. See also Eureka, 200 S.W.2d at 332 (quoting the first sentence of the above

block quotation). 

In 1966, the Supreme Court of Missouri again quoted Cape Girardeau

Bell—this time, a 250-word passage that includesthe block quotation above. Kansas

City v. Ashley, 406 S.W.2d 584, 592 (Mo. 1966), quoting Cape Girardeau Bell, 114

S.W. at 588. The Ashley court also said that Eureka “relied upon” the Cape

Girardeau Bell quotation. Id. Cape Girardeau Bell’s rule, repeatedly reaffirmed by

the Supreme Court of Missouri, governs this case.

Under Ashley, Eureka, and Cape Girardeau Bell, Sho-Me’s easements do not

authorize Sho-Me and Tech’s use of the fiber-optic cable to serve the general public

as a commercial telecommunications enterprise distinct from Sho-Me’s electricity

business. Sho-Me and Tech’s use of the landowners’ easements is indistinguishable

from the railroad and telegraph company’s use of the easement discussed in Cape

Girardeau Bell. In both cases, a cable can rightfully occupy the easement to serve the

purpose authorized in the easement. But that cable cannot also serve the general

public for purposes not authorized by the easement. That additional use—here,

Tech’s use for public-serving commercial telecommunications unrelated to electric

transmission—is an expanded use of the kind prohibited by § 523.238 and Carroll

Electric.

Sho-Me and Tech invoke two additional doctrines—“same general character”

and “unlimited reasonable use”—to justify their use. First, they argue that public

telecommunications use was permitted because “the owner of land subject to a public

easement has no right to insist that the public use remain precisely the same, and if

the original use is changed to another of the same general character and no new or

other burdens are imposed, . . . the owner is not entitled to additional compensation.”

Riggs v. City of Springfield, 126 S.W.2d 1144, 1149 (Mo. banc 1939). As a

threshold matter, they cite no authority that Sho-Me’s easements are “public

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easements.” But even assuming Riggs’s “same general character” test applies here,

it does not authorize Sho-Me and Tech’s use. Riggs involved a city’s appropriation

of an easement to use a stream for sewer purposes. Id. at 1148. Although the amount

of sewage discharged into the stream varied over time, the city’s use was always

within the bounds of its easement. See id. at 1152. Riggs supports only the notion

that a public easement authorizes an increased degree of use so long as it is of the

“same general character.” Sho-Me and Tech suggest that Riggs permits all uses

physically similar to those explicitly authorized by their easements. That suggestion

is incompatible with Eureka, Ogg, and Carroll Electric—all of which prohibited

physically similar or identical uses serving unauthorized purposes.

Second, Sho-Me and Tech assert that their use is authorized because “an

easement granted or reserved in general terms without any limitations as to its use,

is one of unlimited reasonable use.” Mo. Pub. Serv. Co. v. Argenbright, 457 S.W.2d

777, 783 (Mo. 1970); Maasen v. Shaw, 133 S.W.3d 514, 518 (Mo. App. 2004). ShoMe can make unlimited reasonable use of the easements, so long as each “easement’s

use is limited to the purposesfor which it was created.” Maasen, 133 S.W.3d at 519. 

See also Illig v. Union Elec. Co., 652 F.3d 971, 977-78 (8th Cir. 2011) (explaining

that, under Missouri law, an easement can only be used for the purpose for which it

was created). Sho-Me and Tech are limited to using the easements for the purpose

of electric transmission.

Sho-Me and Tech claim they are not restricted by the “original purpose” of the

easements, citing Henley v. Continental Cablevision, 692 S.W.2d 825 (Mo. App.

1985). Henley held that easements granted in 1922 to construct and operate “lines for

telephone and electric light purposes” authorized “the addition of a single coaxial

cable . . . for the purpose of transmitting television images.” Id. at 827-28. The court

stated, “The owner of an easement may license or authorize third persons to use its

right of way for purposes not inconsistent with the principal use granted.” Id. at 828.

Noting that the cable did not exceed the scope of the intended and authorized use, it

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explained, “The expressed intention” of the plaintiffs’ predecessors in granting the

easements “was to obtain . . . the benefits of electric power and telephonic

communications.” Id. at 829. Pointing out that the future development of cable

television was unforseen when the easements were granted, the court determined that

“the intention of plaintiffs’ predecessors was the acquisition and continued

maintenance of available means of bringing electrical power and communication into

the homes of the subdivision.” Id. Henley held that the cable company could use

telephone easements, not simply because such use was “reasonable,” but because

cable television was within the easements’ (broadly defined) original purpose. ShoMe’s easements are unlike those in Henley and nearly identical to the Carroll Electric

easements. They do not indicate any intention to allow use for public-serving

telecommunications purposes. See Maasen, 133 S.W.3d at 519 (“Any doubt

concerning an easement’s scope should be resolved in favor of the servient owner’s

free and untrammeled use of the land.”). Sho-Me and Tech’s use for those purposes

exceeds the scope of the easements.

2.

Under Missouri law, “A trespass is a ‘direct physical interference with the

person or property of another.’” Hansen v. Gary Naugle Constr. Co., 801 S.W.2d

71, 74 (Mo. banc 1990), quoting Mawson v. Vess Beverage Co., 173 S.W.2d 606,

613 (Mo. App. 1943). “[I]f an easement holder, while lawfully on the servient land,

exceeds his rights under the easement in either the manner or extent of his use, he

becomes a trespasser to the extent of the unauthorized use.” Branson W., Inc. v. City

of Branson, 980 S.W.2d 604, 607 (Mo. App. 1998). See also, e.g., Grider v. Tingle,

325 S.W.3d 437, 447 (Mo. App. 2010); Ogg, 142 S.W.3d at 809; Maasen, 133

S.W.3d at 520; Macios v. Hensley, 886 S.W.2d 749, 752-53 (Mo. App. 1994). ShoMe and Tech argue that their use of the easements for telecommunications purposes

did not physically interfere with the landowners’ property and therefore is not a

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trespass. They say that the landowners complain only of invisible light pulses and

can point to no physical invasion of their property.

Sho-Me and Tech miss the fact that the fiber-optic cable is itself on the

property, and when they exceed their rights by using it for unauthorized purposes,

their use of the cable becomes a trespass. This is precisely what Cape Girardeau Bell

says. Where a telegraph is used for purposes both authorized and not authorized by

the easement, the owner of the land burdened by the easement “may rightfully

complain” of uses for purposes not authorized by the easement. Cape Girardeau

Bell, 144 S.W. at 588. Sho-Me and Tech ask this court to ignore this language. But

this court’s task isto predict how the Supreme Court of Missouri would rule, and that

court has twice quoted Cape Girardeau Bell’s language, suggesting it would adopt

its approach. See Ashley, 406 S.W.2d at 592 (quoting and relying on full passage,

albeit for different purposes); Eureka, 200 S.W.2d at 332 (quoting and relying on key

sentence). Carroll Electric provides further evidence of how the Supreme Court of

Missouri would rule. It holds that § 523.283 prohibits “use” of an electric

transmission easement “other than for electric service.” Carroll Electric, 403 S.W.3d

at 646. Sho-Me and Tech characterize Carroll Electric as discussing additional

cables, quoting from a single cross-examination question at trial. But Carroll

Electric’s analysis makes no mention of additional cables. Rather, it refers to “use”

of the easements. Id. at 644-46.

Sho-Me and Tech also rely on an Eighth Circuit case holding that an excessive

use nearly identical to Sho-Me and Tech’s was not trespass under Arkansas law. Int’l

Paper Co. v. MCI WorldCom Network Servs., Inc., 442 F.3d 633, 636 (8th Cir.

2006). There, a telecommunications company simultaneously used a railroad rightof-way for both internal railroad communications purposes and public-serving

commercial telecommunications purposes. The court said it saw “no reason to

believe that Arkansas would recognize a claim for damages from an intangible

trespass of light signals.” Id. The decisions of the Missouri courts, discussed above,

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indicate Missouri would recognize a claim for trespass where a cable installed on an

easement is used for purposes not authorized by the easement. This court is bound

to follow those Missouri court decisions, not a prior Eighth Circuit interpretation of

Arkansas law. The district court’s grant of summary judgment to the landowners on

Sho-Me and Tech’s trespass liability is affirmed.

B.

The district court found that Sho-Me and Tech’s excessive use ofthe easements

makes them liable for unjust enrichment. The parties dispute whether unjust

enrichment is an available remedy against entities with eminent domain power that

have used property without authorization. The Missouri Court of Appeals recently

thoroughly discussed the “body of law” “applicable to the subset of trespass actions

filed against utilities otherwise empowered with the right of condemnation.” 

Sterbenz v. Kansas City Power & Light Co., 333 S.W.3d 1, 7-10 (Mo. App. 2010). 

It summarized the limited remedies available against those entities:

When an entity otherwise entitled to exercise the power of eminent

domain ignores that power and trespasses upon private land, the

landowner has an election of remedies. The landowner ‘may proceed by

way of injunction to restrain the installation; or he may sue in ejectment;

or he may avail himself of [section 523.090]; or he may maintain a

common law action for damages.’

Id. at 7-8 (alteration in original) (footnote omitted) (citations omitted), quoting

Beetschen v. Shell Pipe Line Corp., 248 S.W.2d 66, 70 (Mo. App. 1952). If property

owners sue for damages, they may sue for trespass or, alternatively, for inverse

condemnation. Id. at 8. Sterbenz does not list unjust enrichment as an available

remedy.

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The landowners say that Sterbenz’s silence on unjust enrichment is not a

rejection. But Sterbenz is not just silent. It says that landowners have “an election

of remedies” and lists four remedies. It makes little sense to say a plaintiff has an

election of four remedies if the plaintiff can elect a fifth. The landowners do not

identify any Missouri cases recognizing unjust enrichment as a remedy for

unauthorized land use. The closest they come is a case where an employee gave his

employer an idea for an invention, which the employer then used without paying him. 

Dewey v. Am. Stair Glide Corp., 557 S.W.2d 643, 648-49 (Mo. App. 1977). This

does not show that Sterbenz overlooked unjust enrichment as a remedy for trespass

to real property.

Two other Missouri authorities corroborate Sterbenz. First, in Young v. Home

Tel. Co., 201 S.W. 635 (Mo. App. 1918), the Missouri Court of Appeals rejected

landowners’ attempt to sue—“based upon a contract implied by law”—a telephone

company that installed unauthorized poles. Id. at 636. Young held that this claimwas

not allowed:

It is clear where one takes and occupies the land of another as a

trespasser, the law does not imply an agreement on the part of such

trespasser to pay for such use and occupation. If it did, then a suit for

use and occupation, based merely upon such use and occupation, could

be maintained. But, as stated, the rule in our state is that such a suit

cannot be maintained unless the relation of landlord and tenant, express

or implied, exists between the parties. In other words, there must have

been a prior mutual agreement existing between the parties or their

privies to pay for such use and occupation, else a suit therefor cannot be

maintained.

Id. at 637. The court of appeals assumed the suit was “not one for the use and

occupation of land” directly, but rather one based on an implied contract. It held that

the case was governed nonetheless by a statute providing, “A landlord may recover

a reasonable satisfaction for the use and occupation of any lands or tenements held

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by any person under an agreement not made by deed.” Id. at 636-37, quoting § 7886

RSMo (1909). The Young court found that the statute limited suits for “use and

occupation” to situations where a landlord-tenant relationship existed between the

parties. Id. at 636. The same language is still in the Missouri Revised Statutes, now

codified at § 441.200, and presumably still bars suits based upon “use and

occupation” in the absence of a landlord-tenant relationship. Young suggeststhat the

Supreme Court of Missouri would not recognize an unjust-enrichment action for fair

market rental value against a trespassing entity with eminent domain power, at least

in the absence of a prior agreement. See Young v. Sw. Bell Tel. Co., 3 S.W.2d 381,

384 (Mo. 1928) (saying “the correctness of [the court of appeals’ Young] ruling is

well supported”). Second, § 528.283 specifically notes that “an action for trespass

or expanded use” is available against RECs and utility companies that go beyond the

scope of their easements, making no mention of unjust enrichment. § 528.283.4. The

district court’s grant ofsummary judgment on unjust-enrichment liability isreversed.

III.

After the district court granted summary judgment on liability for both the

trespass and unjust-enrichment claims, the landownerssought damages on the unjustenrichment claim alone. A jury awarded damages on that claim, and the district court

entered judgment for damages on that claim. Since this court now reverses the grant

of summary judgment on unjust enrichment, the damages award is vacated. This

court need not address the jury instructions or evidentiary rulings.

On remand, the landowners may choose to pursue damages on their trespass

claim. See Malvino v. Delluniversita, 840 F.3d 223, 233 (5th Cir. 2016) (permitting

plaintiff who elected RICO remedy that was reversed on appeal to pursue common

law fraud remedy on remand); Shaw v. Raymond, 196 S.W.3d 655, 662 (Mo. App.

2006) (“When a plaintiff . . . does not have ‘two remedies in point of fact,’ the fact

that he sought a remedy to which he was not entitled does not bar him from pursuing

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a remedy to which he is entitled.” (quoting Pemberton v. Ladue Realty & Constr.

Co., 224 S.W.2d 383, 385 (Mo.1949))). If the landowners make that choice, the

district court should conduct further proceedings consistent with this opinion.

IV.

Sho-Me and Tech challenge the district court’s decision to certify the class of

landowners. This court reviews the district court’s class certification decision for

abuse of discretion. Ebert v. General Mills, Inc., 823 F.3d 472, 477 (8th Cir. 2016). 

Sho-Me and Tech argue that this class action is not “manageable” because it

will be difficult to determine class membership. See Fed. R. Civ. P. 23(b)(3)(D)

(explaining that, for Rule 23(b)(3) class actions, “the likely difficulties in managing

a class action” are “pertinent to” predominance and superiority). The district court

addressed this argument at length in its order certifying the class, explaining that class

members “will file a claimformwith a sworn statement identifying the period of their

ownership and attaching a deed.” Sho-Me and Tech do not specify how this process

is unmanageable, much less how it is so unmanageable that the district court abused

its discretion in certifying the class.

Sho-Me and Tech assert that they could raise an affirmative

defense—landowner consent to their cable use—that should be individually

investigated and adjudicated, making class certification inappropriate. “While the

existence of individual defenses may be important in a court’s decision to certify a

class, the relevance of such defenses must be subjected to the same rigorous inquiry

as plaintiffs’ claims.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604,

619 (8th Cir. 2011) (citation omitted). Sho-Me and Tech point to no evidence that

even one class member consented to their cable use. Their unsupported allegation of

individual consent questions does not undercut the district court’s finding that

common questions predominate over individual ones.

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Finally, Sho-Me and Tech contend that the need for individualized damages

calculations prohibits class certification. Since this court has vacated the damages

award, the nature of a hypothetical future damages award does not render class

certification improper. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036,

1049-50 (2016) (declining to decertify class on basis of damages issues not yet

resolved by district court). The district court did not abuse its discretion in certifying

the class.

* * * * * * *

The judgment is affirmed in part, reversed in part, vacated in part, and

remanded for proceedings consistent with this opinion.

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