O'CONNOR v. Great Lakes Pipe Line Co.

• Decision Date: 20 March 1933
• Docket Number: No. 9545.,9545.
• Citation: 63 F.2d 523
• Parties: O'CONNOR et ux. v. GREAT LAKES PIPE LINE CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F.2d 523 (1933)

O'CONNOR et ux. v. GREAT LAKES PIPE LINE CO. et al.

No. 9545.

Circuit Court of Appeals, Eighth Circuit.

February 4, 1933.

Rehearing Denied March 20, 1933.

R. E. Culver, of St. Joseph, Mo., and D. H. Frost, of Plattsburgh, Mo. (Benjamin Phillip and B. G. Voorhees, both of St. Joseph, Mo., on the brief), for appellants.

Charles M. Blackmar, of Kansas City, Mo. (Samuel D. Newkirk, Kenneth E. Midgley, and Meservey, Michaels, Blackmar, Newkirk & Eager, all of Kansas City, Mo., on the brief), for appellees.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

KENYON, Circuit Judge.

Appellants, designated here as plaintiffs, are owners of 480 acres of farm land in Clinton county, Mo., occupied by them for general farming purposes. Appellees were defendants in the trial court. The Great Lakes Pipe Line Company is a corporation transporting oil and oil products by pipe line through the state of Missouri. Defendant Ambler holds a deed of trust from plaintiffs for the land to secure payment of plaintiffs' indebtedness to Northwestern Mutual Life Insurance Company. On October 10, 1930, the Pipe Line Company procured a right of way agreement from plaintiffs, by which said company was given the right to lay pipe lines across plaintiffs' land.

As the question we are to consider arises entirely out of a dispute as to the construction of this contract, we set forth the same in full:

"Right of Way Agreement.

"For and in consideration of the sum of One Dollar (1.00) to us in hand paid by Great Lakes Pipe Line Company, a corporation of Ponca City, Oklahoma, the receipt of which is hereby acknowledged, Dan S. O'Connor and Mary O'Connor, his wife, does hereby grant to Great Lakes Pipe Line Company, its successors or assigns, the right to lay, maintain, operate, re-lay and remove at any time a pipe line or pipe lines for the transportation of oil or oil products, gas and water, and if necessary, to erect, maintain, operate and remove telegraph and telephone lines, with right of ingress and egress to and from the same, on, over and through certain lands situate in the County of Clinton and State of Missouri, and described as follows:

"S E ¼ of Section 29 Township 56 Range 31 and East Half of 488 Rods Section 32 Township 56 Range 31.

"The said grantor, his heirs or assigns are to fully use and enjoy the said premises except the easement for the purposes hereinbefore granted to the said Great Lakes Pipe Line Company, its successors and assigns.

"The said Great Lakes Pipe Line Company for itself and its successors or assigns hereby covenants to bury the lines of pipes so that the same will not interfere with the cultivation of said premises.

"All damages to crops, surfaces, fences and premises for and because of the laying of each line of pipe and each telegraph and telephone line shall be paid for as soon as said line or lines are completed and shall include maintenance damages, if any. In addition to this there shall be paid on the laying of the first line of pipe an additional compensation at the rate of 50 cents per rod for each rod or fraction thereof of land on these premises across which said line is laid. Additional lines shall be laid for a consideration the same as for the first. If the amount of damages to fences, crops and premises which may be suffered by reason of laying, maintaining, operating, altering or removing said pipe lines or telegraph and telephone lines, cannot be mutually agreed upon, then same shall be ascertained and determined by three disinterested persons, residents of Clinton County, Missouri, one thereof to be appointed by the owner of the premises, one by Great Lakes Pipe Line Company, its successors or assigns, and the third by the two so appointed as aforesaid, the award of two of such persons being final and conclusive.

"It is understood and agreed that no fencing shall be had of the lands included within this agreement, without further agreement with the then owners of said lands, and that fencing connecting the lands with other lands — may be taken down, during construction of pipe lines or other construction, but at completion of construction, shall then be replaced or rebuilt in as good condition, as the fences were at the time of removal. Telephone and telegraph lines provided for herein, shall be installed so as to follow the boundary or property lines of the lands owned by the Subscriber hereto — unless otherwise agreed to, at time of construction or of renewal of lines.

"Dated this 10th day of October, 1930. "Dan S. O'Connor, Seal "Mary O'Connor. Seal."

This right of way agreement was duly acknowledged before a notary public and recorded in the recorder's office at Plattsburg, Mo.

In the spring of 1931 the Pipe Line Company laid a pipe line across plaintiffs' land. In so doing some damage occurred to the crops, the fences, and the surface of the ground. This action was brought to recover damages. The petition claims damage to the surface of the ground in the laying of the pipe line over a strip thirty feet in width in the sum of $500; damage to crops $230; damage to fences $250; and damage of $12,000 to the entire farm, which latter item is stated in the petition as follows: "That the damages done to said lands and the improvements thereon by reason of the conveyance of said easement to said defendant thereover, granting to said defendant and its assigns the right to lay, maintain and remove as many pipe lines over said lands as it saw fit, exclusive of the damage done to the growing crops, fences and the surface of said land as hereinbefore set out is $12,000.00, and that the market value of said lands has been decreased in said amount of $12,000.00 by reason of the granting of said easement thereover and the laying of said pipe line as herein alleged."

The trial court refused to submit to the jury the question of damages for the alleged depreciation of the entire farm by the grant of the easement. The other questions of damage to crops, fences, etc., were not seriously contested. The jury returned a verdict for plaintiffs of $646. Plaintiffs appealed, and argue here only the question of the refusal of the court to submit to the jury requested instructions, which raised the question of recovery for alleged depreciation of the entire farm. The issue is therefore clear.

The trial court in overruling the motion for a new trial filed an opinion, 2 F. Supp. 721, in which, after stating plaintiffs' claim, he stated his reasons for refusing to submit to the jury the question of depreciation, saying: "It seems clear to me that depreciation in market value was not within the contemplation of the parties as an element of damages under the written right-of-way agreement upon which plaintiffs sue. From the association of the word `premises' with the words `crops, surfaces and fences' which precede the word `premises,' from the fact that the damages for which provision is made is that which results `for and because of the laying of each line of pipe,' it seems to me that only physical damages such as might be suffered by crops, surfaces, fences and other things of a like nature, as buildings, growing trees, etc., were intended. Damages which resulted from the actual laying of a line of pipe were the only damages in contemplation. Certainly it was not intended by the parties that there should be included depreciation in the market value of the lands involved, a depreciation resulting, according to the plaintiffs' theory, not from the laying of a line of pipe, but from the possibility that the later patrolling of that line of pipe might result in the carrying of disease germs to cattle pasturing on the lands. Depreciation in market value on that account cannot be said to be a depreciation resulting from the laying of a line of pipe. If there is any such depreciation it results from an entirely different matter, to-wit, from what might be done after the laying of a pipe in connection with its maintenance."

The court also held that the issue of depreciation in market value was not within the allegations of the petition, and, further, that there was no competent evidence bearing on the...