Beaty v. N. W. Elec. Power Co-op., Inc.
| Decision Date | 03 December 1956 |
| Docket Number | No. 22412,22412 |
| Parties | Lewis V. BEATY, James S. Beaty and Betty J. Beaty (Plaintiffs), Respondents, v. N. W. ELECTRIC POWER COOPERATIVE, Inc., a Corporation (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Russell N. Pickett, Eugene E. Andereck, Phil Hauck, Pickett, Andereck & Hauck, Trenton, and Vance Julian, Clinton, for appellant.
Denton E. Houtchens, Clinton, for respondents.
This is an appeal from a judgment in favor of the plaintiffs and against the defendant for $3,000. For clarity, respondents are hereafter referred to as plaintiffs, and appellant as defendant.
The cause of action arose out of alleged damages resulting from defendant's construction of a power line across plaintiffs' farm. Plaintiffs were the owners of a farm of approximately 1,500 acres in Henry County, and executed an easement in favor of defendant for the purpose of entering upon said farm and building, operating and maintaining an electric transmission line. The easement contained the following provision: 'Grantor reserves the right to pasture and farm said easement, and any damage caused to the land and/or growing crops thereon or livestock thereon by the reason of the construction, maintenance or operation of said electric line or system, shall be compensated for by Grantee.' The right-of-way acquired by the easement was 100 feet in width and extended approximately 2 3/4 miles across plaintiffs' farm and included approximately 30 acres. The defendant erected the transmission line and in doing so caused certain alleged damages for which it is claimed the defendant is liable under the above provision of the easement. At the beginning of the trial, it was stipulated that under such easement provision, the defendant would be required 'to pay any damages, whether negligently caused or otherwise, in the course of the construction, operation and maintenance of the line, to livestock, land or growing crops'.
Plaintiffs' land was primarily a stock farm, well seeded and sodded in bluegrass. They pastured many head of cattle of their own, and also rented pasturage to others. They also harvested substantial bluegrass seed and sold it on the market. Generally the evidence relates to the following elements of damage: (a) the destruction by fire, caused by the defendant, to 25 acres of bluegrass sod and certain fences and trees outside of the easement right-of-way; (b) the damaging of about 25 acres of bluegrass sod within the right-of-way due to the use of heavy machinery during wet weather; and (c) damage to the farm as a whole resulting from such heavy machinery causing deep 'ruts' and erosion therefrom.
To better understand the relevancy and sufficiency of the evidence relating to the various elements of damage, we think it advisable to state the contentions made by the defendant on appeal. It contends that the court erred in refusing to give its Instructions D, E and F, and in giving plaintiffs' Instruction 5.
Instruction F declared that there had been a failure of proof of farm as a whole. Instruction E declared that there had been a failure of proof in respect to the amount of damages suffered by plaintiffs as a result of ruts being created upon the land as distinguished from the grass crop thereon, and that the jury could allow only nominal damages for such item. Plaintiffs' Instruction 5 submitted the issue of damages and will be discussed later.
Plaintiffs produced a number of witnesses. The effect of their testimony may be summarized as follows: Plaintiffs owned a farm of 1,500 acres, most of which had an excellent stand or sod of bluegrass which was used for pasturing livestock and also 'stripping' for seed; that defendant's right-of-way was 100 feet wide and extended about 2 3/4 miles across plaintiffs' land; that in constructing the transmission line, defendant used heavy machinery such as trucks, caterpillars, tractors, halftracks and bulldozers; that the construction work was done in early spring when the ground was wet and soft; that such machinery caused deep ruts and upheaval of soil within the right-of-way and thereby destroyed 25 acres of bluegrass; that the 'ruts' caused some erosion of the soil; that while defendant was constructing the transmission line, it caused a fire which destroyed 25 acres of bluegrass outside of its right-of-way; also destroyed some fencing, and damaged some trees.
With reference to the amount of damage resulting from these various acts, plaintiffs' evidence is that the fencing was damaged from $175 to $200; the value for pasturage purposes of the 25 acres destroyed by fire was $250 for the years of 1953 and 1954, or a total of $500; that the reasonable cost of reseeding the 25 acres burned would be $500; that the reasonable cost of plowing and reseeding the 25 acres destroyed within the right-of-way would be $500; and that the trees were damaged $100 by the fire. Defendant's evidence minimizes these elements of damage, but we are not concerned with the weight of the evidence.
We now consider the evidence relative to an element of damage which defendant's Instruction F seeks to eliminate from consideration by the jury. Such evidence concerns the value of the seed crop which was destroyed for the years of 1953-54-55. Plaintiffs' evidence is that the bluegrass on the land immediately adjacent to that which was destroyed by the defendant was of the same kind and growth as that which was destroyed; and that such adjacent bluegrass, for each of such years, produced 7 or 8 bushels of seed per acre and sold for approximately $4 per bushel, after being harvested, processed and delivered to market. On this basis, plaintiffs estimated their loss of the seed crop at $800 for each year of 1953 and 1954, and, because of the reduced market value in 1955, the damage for that year was estimated at $200. It was admitted that these amounts represented 'gross figures'. There is also evidence, by witness Gaines, that the harvesting and curing of bluegrass seed 'is an expensive operation and involves a lot of hand labor', as well as use of machinery.
Defendant contends that its Instruction F should have been given, withdrawing from the jury's consideration the element of damage to the seed crop, because there was no proper evidence of such value. This contention is on the theory that plaintiffs' evidence relates only to the amount of seed which would likely have been produced and what it would have sold for on the market, without taking into consideration the cost of producing, harvesting and marketing the seed. This contention must be sustained.
The measure of damages to a growing crop is well stated in Happy v. Kenton, 362 Mo. 1156, 1157, 247 S.W.2d 698, 704, where it is said: ...
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