concurring.
I concur in the principal opinion but desire to add the following reasons in support of the position which would allow plaintiff to sue for damages sustained within the five years immediately preceding the filing of the lawsuit.
The facts of this case are not particularly vexing nor do they present a significantly difficult question under the law if the relative positions of the parties are borne in mind and the unique position a public utility holds in our society is recognized. In fact, a very similar matter was presented in Cacioppo v. Southwestern Bell Telephone Co., 550 S.W.2d 919 (Mo.App.1977), which will be referred to further later in this opinion.
Defendant Laclede Gas Company is a public utility and as such enjoys a monopoly in the sale and distribution of natural gas in St. Louis and St. Louis County. Citizens desiring to use gas in their businesses or homes must obtain it from defendant as there are no other gas distributors from which it can be obtained. Of course, to use the gas it must be piped onto a consumer’s premises, and to bill the customer the gas must be metered on the consumer’s premises. This is done by the use of pipes, meters, and equipment of Laclede Gas Company located on the consumer’s property. The consumer is not entitled to move or tamper with Laclede’s pipes or meters. Laclede is obligated to serve the customers in its franchise territory and is not a trespasser simply because it occupies a part of a consumer’s premises with its equipment while delivering gas to the customer. Even though Laclede and the customer may be involved in a dispute, the customer still cannot move or tamper with Laclede’s meters or pipes.
Count I alleges the parties entered into an oral contract in late 1965 whereby Lac-lede agreed to move its gas meter to the exterior of plaintiff’s dry cleaning and processing plant to correct a dangerous condition arising from the lack of a vent pipe on the inside gas meter; that Laclede breached the contract on or about December 18,1965, when it failed to move the meter but instead installed a vent pipe; that the vent pipe so interfered with the supply of gas that plaintiff did not receive sufficient gas to generate sufficient steam pressure to operate his equipment; that plaintiff repeatedly. demanded that Laclede remove the vent pipe and move the meter outside where it had been located originally. This move was eventually done but not until July 13, 1970. As a result of the insufficient gas due to the vent pipe on the inside meter, the plaintiff allegedly was deprived of sufficient gas to operate the pressing equipment on a daily working-day basis, forcing plaintiff to have that work done elsewhere which caused an accumulated loss of profits of $45,000 over those four and one-half years.
Alternatively, Count II, sounding in tort, alleged Laclede was “negligent” and “incompetent” for installing the vent pipe “which it knew or should have known . would materially interfere with the supply of gas” rather than moving the meter.
In the case of Cacioppo v. Southwestern Bell Tel. Co., supra, plaintiff sued the telephone company alleging that for about fifteen years the phone company wrongfully and without just cause maintained a junction box for electrical equipment (telephone) in the basement of plaintiff’s apartment building; that defendant’s employees continuously entered the area of the box without permission and against plaintiff’s will causing disturbance of plaintiff and her tenants and a loss of about $60 per month; that between 1954 and 1972, defendant lit*558tered the floor with wires, etc., all as a matter of trespass and necessitating repair and cleaning at plaintiff’s expense of $6,240. Plaintiff alleged as a result of the trespass and nuisance her privacy was invaded and various damages were asserted. Defendant Bell Telephone asserted the action was barred by the five-year statute of limitations, § 516.120, RSMo 1969, and asserted the same defense as Laclede asserts in the instant case.
In Cacioppo the plaintiff continually protested the workmen’s interruptions by calling the company and asking the junction box be removed. In the instant case plaintiff alleged he repeatedly demanded Lac-lede to remove the vent pipe and move the meter outside, but Laclede failed to do so.
The jury verdict and judgment in Caciop-po was for plaintiff and included damages for the entire period of fifteen years. Bell Telephone appealed and the judgment was reversed and remanded for a new trial with directions to limit damages to the five-year period immediately preceding the filing of the suit on May 2,1972, to wit, May 2,1967.
Although there may be some distinction between the instant case and Cacioppo, the issues are essentially the same and Cacioppo provides reasonable guidance for resolution of the issues presented here. For that reason a rather extensive quotation from Ca-cioppo, 550 S.W.2d 925-926, is set forth:
“ Plaintiff chose to proceed on the theory of trespass for actual and punitive damages, and she was required by Section 516.120[4], supra, to bring her action (or actions) within five years of accrual, Young v. Southwestern Bell Telephone Co., 318 Mo. 1214, 3 S.W.2d 381, 384[1] (1928); Person v. City of Independence, 114 S.W.2d 175 (Mo.App.1938). The statute of limitations began to run against plaintiff at such time as her suit could be maintained. Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310, 316 (1942); State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141, 148 (Mo.App.1974).
“ ‘A continuing trespass upon real property creates separate causes of action, which are barred only by the running of the statute against the successive trespasses, and not by the running of the statute from the time of the original trespass. So, also, if a trespass is followed by injury constituting a continuing nuisance, the damages for the original trespass must all be recovered in one action, but successive actions may be brought to recover damages for the continuation of the wrongful conditions, and in these the damages are estimated only to the date of the bringing of each suit, and the statute of limitations does not begin to run from the date of the original trespass.’ 75 Am.Jur.2d Trespass § 65. ‘In the case of a continuing trespass the statute does not begin to run from the date of the original entry, but recovery may be had for a period of time not exceeding the statutory period immediately preceding the institution of the action.’ 87 C.J.S. Trespass § 71. Thus, ‘in case of a continuous trespass for a series of years, the action is barred as to so much only of the wrong as was committed prior to the term of limitation.’ Graf v. City of St. Louis (Memorandum Opinion), 8 Mo.App. 562 (1880). Accordingly, the court erred in permitting Mrs. Cacioppo to recover damages for any acts of trespass occurring prior to May 2, 1967, and the cause must be reversed for trial in which the issue of damages would be limited to damages sustained by plaintiff after May 2, 1967. See Lindberg v. Linder, 133 Cal.App. 213, 23 P.2d 842 (1933).
“Farrar v. St. Louis-San Francisco Ry. Co., 361 Mo. 408, 235 S.W.2d 391 (1950) and Urie v. Thompson, 357 Mo. 738, 210 S.W.2d 98 (banc 1948), cited by respondent, are silicosis cases and do not support her theory that she had to wait to seek relief from defendant’s near 20-year pattern of misconduct until the source of her troubles, defendant’s junction box, was removed in order to have her damages ascertained. If such were the case, it would seem that if defendant never removed the junction box, plaintiff’s cause of action would never accrue. See also DePaul Hospital v. Southwestern Bell Tel., 539 S.W.2d 542 (Mo.App.1976), *559where plaintiff could not institute suit for overcharge in a period 1953 to 1972 until after the Public Service Commission determined that plaintiff was entitled to a rate lower than that charged.
“ Nor was defendant estopped to assert the bar of the statute of limitations. Statutes of limitations are favored in the law, and cannot be avoided unless the party seeking to do so brings himself within some exception. To constitute such an exception by way of an estoppel, proof asserted to support it must be absolute and unequivocal. Neal v. Laclede Gas Co., 517 S.W.2d 716, 719[3], [6] (Mo.App.1974). There is no evidence that defendant agreed not to assert the statute of limitations in consideration of plaintiff’s forebearance to sue upon which to found an estoppel against defendant, Branner v. Klaber, 330 Mo. 306, 49 S.W.2d 169, 178 (1932); or that defendant, by any act or in any way, prevented plaintiff from commencing her cause of action, Rogers v. Brown, 61 Mo. 187, 193 (1875); or that defendant induced plaintiff to refrain from instituting her suit before it was barred by the statute of limitations, Martin v. Potashnick, 358 Mo. 833, 217 S.W.2d 379, 382[7] (1949). The evidence shows only that she failed to sue until May 2, 1972.”
In the instant case the petition does not plead trespass, as such. It seems clear that as long as plaintiff needed gas to operate his business he could not treat the presence of the meter and the vent pipe inside the building as a trespass as if he could remove them and mitigate or end the damages. Nor did anyone suggest the plaintiff in Cacioppo could have mitigated or eliminated damages by removing the junction box as one might remove a trespassing object on his premises in the ordinary course of events. One simply cannot remove a public utility’s equipment from one’s premises with impunity. This is especially obvious if the customer, as here, needs the product— gas—and cannot secure it from any other source.
The rationale of Cacioppo is therefore particularly appropriate to the resolution of the statute of limitations issue in the instant case.
It is true, of course, that a cause of action accrued when the alleged oral contract or alleged tort was breached or initiated. Nevertheless, the breach or negligent conduct continued over a substantial period; the damages occurred on a day-by-day basis, and each day was a new damage occurrence. This is not a situation where the impetus for damage (assault, collision, etc.) occurred only once and from that occurrence all damages flowed. Here all damages did not accrue from the initial breach or tort, but rather subsequent damages arose on a business day-to-day basis and, allegedly, at any time the vent was removed or the meter was moved, the repetitive, but new, day-to-day damages would cease. In this situation, it is reasonable that defendant ought not be liable for damages occurring more than the statute-of-limitations period prior to the filing of suit, as in Cacioppo. On the other hand, the defendant ought not be able to avoid the damages that occurred on the business day of January 16, 1973, the day prior to filing suit, simply because the plaintiff cannot recover for the damages on the business day of December 18, 1965, the day defendant allegedly failed to remove the vent or move the meter to an outside location at the first request.
I do not regard this opinion as significantly different from the principal opinion of Donnelly, J., and I file it in order to make clear that in a remarkably similar case in Missouri a reasonable solution was reached which accorded fairness to both parties and which I regard as an available solution here that ought to be utilized.