Arkansas Missouri Power Co. v. Killian

• Decision Date: 03 July 1931
• Citation: 40 S.W.2d 730,225 Mo.App. 454
• Parties: ARKANSAS-MISSOURI POWER COMPANY, A CORPORATION, APPELLANT, v. H. A. KILLIAN ET AL. AND GEORGE W. RONE, EXCEPTOR, RESPONDENT
• Court: Missouri Court of Appeals

40 S.W.2d 730

225 Mo.App. 454

ARKANSAS-MISSOURI POWER COMPANY, A CORPORATION, APPELLANT, v. H. A. KILLIAN ET AL. AND GEORGE W. RONE, EXCEPTOR, RESPONDENT

Court of Appeals of Missouri, Springfield

July 3, 1931

Appeal from the Circuit Court of Pemiscot County.--Hon. John E Duncan, Judge.

Judgment reversed and remanded.

Ward & Reeves for appellant.

(1) Neither anticipated nor past negligence in the construction or use or operation of the improvement is an element of damages which can be recovered. 20 C. J. 778, section 233; R. R. v. Blechle, 234 Mo. 471, 479; Mo. Power & Light Co. v. Creed, 32 S.W.2d 783. (2) It certainly was the duty of exceptor to repair his own fences after the power line was constructed, if they were in fact left in an impaired condition by the plaintiff, in order to avert damages from the depredations of stock, and he could not leave the fences out of repair and recover damages done by the stock. Chicago S. F. & C. Ry. Co. v. McGrew, 104 Mo. 291. (3) The instruction is wrong in that it does not follow the rule of law in such cases that where a part of a tract of land is taken, the measure of damages is the difference between the market value of the whole tract before and after the condemnation. An instruction such as this one has been declared not to be the law. City Water Co. v Hunter, 319 Mo. 1240, 1245; R. R. v. Real Estate Co. , 204 Mo. 565, l. c. 575; Mo. Power & Light Co. v Creed, 32 S.W.2d 783.

Gallivan & Finch for respondent.

(1) It was the duty of appellant to repair respondent's fences, gates and openings it made and put them in as good repair as when entered to prevent damage to respondent's fields and crops. Mo. Power & Light Co. v. Creed, 32 S.W.2d 783. (2) The correct way to establish the item of damage to the farm alone is the difference in the reasonable market value before and after the power line went through in its then condition. Mo. Power & Light Co. v. Creed, 32 S.W.2d 783, l. c. 786; City Water Co. of Sedalia v. Hunter, 319 Mo. 1240; St. Louis Belt & Terminal Ry. v. Real Estate Co., 204 Mo. 565, 20 C. J. 763.

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

--This is a condemnation proceeding. The appellant sought to condemn a right of way across 160 acres of land belonging to respondent, George W. Rone, for the purpose of erecting poles on which wires were strung for the purpose of conveying electric current. Commissioners were appointed by the circuit court to assess Mr. Rone's damages, and they awarded him $ 198. This sum was paid by appellant. Respondent Rone filed exceptions to the report of the Commissioners and a trial by jury followed resulting in his damages being assessed by the jury at $ 300. The $ 198 already paid was deducted and judgment rendered against appellant for the difference of $ 102. This appeal followed.

After the Commissioners' report was filed, the appellant paid the $ 198 assessed as damages by the Commissioners and then proceeded to erect its poles and wires and establish it power line over respondent's land so that at the time the exceptions of respondent were heard before the jury, the power line was fully established.

The errors in the trial relied upon here are that incompetent testimony was admitted and erroneous instructions given to the jury. The land of respondent was partly pasture and partly cultivated land. The power line ran across about fourteen acres of land in wheat. Part of this wheat was destroyed by poles being dragged over it and evidence as to the amount of damage done thereby to the wheat crop was admitted without objection. The evidence also tended to prove that the fence enclosing the pasture was cut and stock confined in the pasture escaped therefrom and the owner was required to gather them together and keep them confined in another place for a week. This evidence was objected to on the ground that recovery of damages resulting from negligence or trespass in erecting the power line could not be recovered in a condemnation proceeding but the remedy of respondent, if he had one, was by a common-law action for damages. To sustain that position we are cited to 20 C. J. section 233, page 778; R. R. v. Blechle, 234 Mo. 471, 479, 137 S.W. 974; Missouri Power & Light Co. v. Creed (Mo. App.), 32 S.W.2d 783.

The Missouri cases are not, to our mind, conclusive on the question though their tendency is rather strong in that direction. The text in Corpus Juris is very strong on this question. Appellant has copied that in its brief and we reproduce it here as follows:

"In proceedings to condemn land or to recover compensation for land already taken or injured, no damages are included except such as necessarily arise from a lawful taking and a proper construction and operation of the improvement. Anticipated or past negligence in the construction of the improvement is not, therefore, an element of damage, and the same is true where the completed improvement is maintained and operated in a negligent manner or so as to constitute a nuisance. So in such a proceeding there can be no recovery for an original wrongful entry, nor for trespasses committed in constructing the improvement. The remedy of the landowner in such cases is a common-law action for damages. The rules stated in this section are strictly applicable, although the constitution provides that compensation shall be made for injuring or destroying property as well as for taking it, and they also apply under statutes providing not only that just compensation for the land taken shall be made but likewise for incidental loss or damage such as must...