Cities Service Gas Co. v. Peak

• Decision Date: 21 November 1932
• Parties: CITIES SERVICE GAS COMPANY, APPELLANT, v. BELLE V. PEAK, RESPONDENT
• Court: Kansas Court of Appeals

54 S.W.2d 482

227 Mo.App. 515

CITIES SERVICE GAS COMPANY, APPELLANT, v. BELLE V. PEAK, RESPONDENT

Court of Appeals of Missouri, Kansas City

November 21, 1932

Appeal from Circuit Court of Clay County.--Hon. Ralph Hughes, Judge.

AFFIRMED.

Judgment affirmed.

J. R Nicholson for appellant.

Lawson & Hale and Blackwell & Sherman for respondent.

BOYER C. Campbell, C., concurs.

OPINION

BOYER, C.

Plaintiff gas company by condemnation proceeding sought a right-of-way under and across lands of defendant for the purpose of laying and maintaining a six-inch lateral gas pipe line. The tenant of the land owner was also a party defendant. Commissioners were appointed to assess the damages and awarded the sum of $ 75 to the tenant and $ 2880 to the land owner. A settlement was made with the tenant and plaintiff filed exceptions to the commissioners' award of damages to the land owner because excessive and demanded a jury trial on the issue of damages to her. The venue was changed from Lafayette County, where the land was located, to Clay County where the case was tried, and the verdict of the jury was for defendant and assessed the damages at $ 2500. Judgment followed and plaintiff duly appealed.

Conceding that respondent is entitled to some compensation, appellant insists that the verdict is grossly excessive and made so on account of improper opinion evidence admitted over the objection of plaintiff. It is contended that the opinions of some of the witnesses on the measure of damages were based on speculative elements of damage and on elements of damage covered by covenants in the petition. The petition alleges that plaintiff is engaged in transporting gas by means of pipe lines laid under the surface of the ground for the purpose of distribution and sale of gas as a public commodity and for public use and convenience; that plaintiff proposes to lay a six-inch lateral gas pipe line to the city of Lexington through the land of the defendant. The land is described and consists of adjoining tracts amounting in all to 215 acres. It is alleged that plaintiff seeks to acquire a strip of land for right-of-way thirty feet wide for the purpose aforesaid and to lay its said gas pipe two feet beneath the surface of the ground, and the petition then proceeds:

"Plaintiff states that the said pipe line will be laid in such a manner as not to interfere with defendants' access to our cultivation of the soil or the drainage of the lands or of tracts adjacent thereto, except during such times as the plaintiff may necessarily be engaged in laying, removing or repairing the line and plaintiff covenants not to lay any additional pipe lines on the right-of-way aforesaid without buying the right from the defendant; that plaintiff obligated itself in the event of the condemnation, to afford the defendants access at all times to the land and their right to the use of the same as part of their farm, in the same manner and to the same extent as if said line had not been laid subject to the right of entry at the point on defendants' land where the thirty feet right-of-way enters and leaves said farm for the purposes stated; that plaintiff further obligates itself to pay defendants any damages to the lands by reason of the installing or repairing of the said line by plaintiff or for any damages that may subsequently be done to growing crops on the right-of-way from time to time or by the escape of gas upon the right-of-way or upon adjacent lands. Plaintiff will not take any earth from the right-of-way or the adjacent lands of defendant to put on its pipe line without the consent of the defendant."

The evidence discloses that the appropriation of the right-of-way was made in December, 1930, and the pipe line was laid during that month and later. The pipe line and the right-of-way follow a northwesterly direction and extend diagonally across the farm of defendant a total distance of 141.5 rods. Defendant's farm is not far from town; it is highly improved and is supplied with city water for stock; the soil is rich and is a well-developed state of cultivation. The 135 acre tract is in the northeast quarter of section 10, and adjoins the eighty-acre tract which is the north half of the northwest quarter of section 11. The ground is all utilized as one farm. The pipe line intersects the south line of the eighty-acre tract 1310 feet east of the southwest corner thereof, and intersects the north line of the 135-acre tract 420 feet west of the northwest corner of the eightyacre tract. The ground through which the pipe line was laid was all tillable land except a ravine crossed by the pipe. The top of the pipe was laid two feet below the surface of the ground and the ditch filled with earth in such a manner as to leave a ridge about two feet wide and about a foot or eighteen inches high. A part of the line was laid in wet weather and the ground of the right-of-way was badly cut by trucks, transports or a ditching machine. There was some destruction of crops in building the line. Through the wheat field there was a space about eight feet in width where there was no wheat to harvest and about half a crop on the remainder of the right-of-way. In harvesting the wheat the binder was drawn over the ridge, but in places with difficulty on account of the obstruction caused by it. Other parts of the fields were later cultivated across the ridge with plow, harrow, and drill which caused the ridge to be reduced and the appearance of the field to become practically uniform. The condition in which the fields were left by laying the pipe, the creation of the ridge above it, and the obstruction caused thereby to the use of the fields is shown by numerous witnesses; and the appearance after cultivation is shown by many photographs as well as by verbal testimony. Both parties called many witnesses and the principal part of an extended record is directed to an inquiry as to damages measured by the difference between the reasonable market value of defendant's farm immediately before the appropriation of the right-of-way and immediately thereafter. The parties agree that this was the proper measure of damage and submitted the case on that theory as evidenced by instructions given at the request of both plaintiff and defendant.

Ten or more witnesses called by defendant were shown to be familiar with the character of defendant's farm, the location of the pipe line thereon, and of the reasonable market value of the farm and other lands in the vicinity. They testified to such value of the farm before and after the appropriation, and the difference in said values shows a diminution of from $ 25 to $ 40 per acre. Witnesses for the plaintiff testified that there was no difference in the reasonable market value of the farm before and after the appropriation, and one witness testified that the value would be $ 3 less per acre after the appropriation.

The specific assignments and points of appellant against the reception of opinion evidence may be summarized as these: (1) The court erred in permitting witnesses to give their opinion of depreciation in value without first requiring a statement from each of the witnesses of the elements of damages considered by them as the basis of their opinions, or without requiring a hypothetical question containing only legal and competent elements of damage and excluding conjectural elements. (2) The court erred in refusing to permit plaintiff to cross-examine defendant's witnesses on the elements of damages taken into consideration by them before giving their opinions. (3) The court erred in refusing plaintiff's motion to strike out opinions of depreciated value given by defendant's witnesses, which opinions included speculative elements of damage.

It appears that the first point is more in the nature of an objection to the qualification or competency of a witness than to the legality of evidence sought to be elicited. But appellant does not urge that the witnesses were incompetent to give opinions as to market value and it could not successfully do so because the witnesses were shown to be qualified, and this is a preliminary matter to be passed upon by the court. [22 C. J. 523.] The witnesses testified to their knowledge of facts sufficient to form a basis for their opinions. There was no objection to such testimony showing value prior to the appropriation. When each witness was asked to state the value after the appropriation the suggestion or objection was then made that the witness before giving his opinion should be required to state all the elements of damage considered by him as the basis of his opinion of depreciation, or in lieu...