Fulkerson v. Great Lakes Pipe Line Co.

• Decision Date: 13 October 1934
• Docket Number: 33129
• Citation: 75 S.W.2d 844,335 Mo. 1058
• Parties: H. C. Fulkerson and Ida L. Fulkerson v. Great Lakes Pipe Line Company, Appellant
• Court: Missouri Supreme Court

75 S.W.2d 844

335 Mo. 1058

H. C. Fulkerson and Ida L. Fulkerson v. Great Lakes Pipe Line Company, Appellant

No. 33129

Supreme Court of Missouri

October 13, 1934

Rehearing Granted, Reported at 335 Mo. 1058 at 1067.

Appeal from Andrew Circuit Court; Hon. Guy B. Park, Judge Opinion filed at May Term, 1934, May 17, 1934; motion to modify opinion filed; motion overruled at September Term October 13, 1934.

Reversed and remanded.

Charles M. Blackmar, Samuel D. Newkirk and Kenneth E. Midgley for appellant; Merservey, Michaels, Blackmar, Newkirk & Eager and Booher & Wolverton of counsel.

(1) The court erred in permitting plaintiffs' witnesses, Charles Holland, and others, to testify as to the market value of the land before the pipe line was laid and as to its market value immediately after the pipe line was laid, leaving out of consideration damages done to fences, crops and the surface of the land. Under the right of way agreement sued upon and the evidence in the case, plaintiffs were entitled to recover only for damages done to crops, fences and the surface of the land. O'Connor v. Great Lakes Pipe Line Co., 63 F.2d 523; Donovan v. Boeck, 217 Mo. 87; Bolt & Nut Co. v. Caldwell, 240 Mo. 365; Blanke Bro. v. American Surety Co., 297 Mo. 41; St. Louis v. Laughlin, 49 Mo. 559; Southern Surety Co. v. Town of Greenville, 261 F. 929; Hickman v. Cabot, 183 F. 747; Brunson v. Carter Oil Co., 259 F. 658; Pulom v. Jacob Dold Packing Co., 182 F. 356; Swift & Co. v. Columbia Ry. Co., 17 F.2d 46; McSherry v. Heimer, 132 Minn. 260, 156 N.W. 130; Merchants & Mfgs. Lloyds Ins. Exc. v. So. Trading Co., 205 S.W. 352; Allen v. Murray, 182 N.Y.S. 369, 112 Misc. 156; Sands v. Kaukauna Water Power Co., 115 Wis. 232, 91 N.W. 679; Liggett v. Levy, 233 Mo. 590; Stanton Co. v. Underwriters Agency, 206 F. 983; Corbett v. Winston, etc., Co., 296 F. 577. (2) The court erred in permitting plaintiffs' witnesses, H. C. Fulkerson and Hosea Jackson to testify as to the reasonable market value of the land before the pipe line was laid and as to its reasonable market value immediately after the pipe line was laid. See authorities under Point 1, supra.

Daniel H. Frost and Culver & Phillip for respondents.

(1) Plaintiffs were entitled to recover for the damages done by the construction, operation and maintenance of the pipe line to that portion of the tract of land not actually taken. Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 647; Lemon v. Garden of Eden, 310 Mo. 179, 275 S.W. 46; Doyle v. Ry. Co., 113 Mo. 287, 20 S.W. 971; 49 C. J. 1328. (2) Where a contract is ambiguous, it will be construed more strongly against the party preparing it or employing the words concerning which doubt arises. And this is especially true where the contract is in the printed form. 13 C. J. 544-5; Grossenbacher v. Daly, 287 S.W. 782; Commercial Electrical Supply Co. v. Mo. Comm. Co., 166 Mo.App. 332, 148 S.W. 995; Belch v. Schott, 171 Mo.App. 357, 157 S.W. 658; Lechner v. Strauss, 98 N.E. 448; Ford v. Clement, 135 S.W. 343; Minge v. Green, 58 N.E. 294; Staten Island v. Sperin, 134 N.Y.S. 98. (3) It has always been an aid in the construction of contracts that we place ourselves in the situation of the contracting parties. This has ever been true in the construction of wills, and evidence aliunde is permitted to place the court in the position of the maker of the instrument. Then he is able to see with the same eye and judge with the same attitude of mind and arrive at the true meaning of the instrument. These are fundamental principles and I will not bother the court with lengthy citations. Coal & Iron Co. v. Coal Co., 176 Mo.App. 407. (4) Another familiar rule is, that a contract should be construed as a whole. 13 C. J. 526; Sconce v. Surmeyer Co., 258 Mo. 616; Thompson v. Lindsay, 242 Mo. 53; Coal & Iron Co. v. Coal Co., 176 Mo.App. 408; Meyer v. Christopher, 176 Mo. 580. The court ascertains their meaning from all their provisions and not from single words or phrases or sentences, and when the intention of the contracting parties is thus ascertained that intention will be effectuated, unless it violates some inexorable rule of law. Meyer v. Christopher, 176 Mo. 580.

OPINION

Cooley, C.

Action for damages claimed by plaintiffs because of the laying of a pipe line across their farm by defendant. Plaintiffs obtained a judgment for $ 600 from which defendant appealed to the Kansas City Court of Appeals which, by a divided opinion, reversed the judgment and remanded the cause. [Fulkerson v. Great Lakes Pipe Line Co., 60 S.W.2d 71.] Upon the request of the dissenting judge, who deemed the majority opinion in conflict with certain decisions of this court, the Court of Appeals, following the constitutional mandate, certified the cause to this court.

Plaintiffs are owners of 160 acres of improved farm lands in Clinton County, Missouri, occupied by them for farming purposes and the handling of stock. Defendant is a corporation engaged in transporting oil and oil products through Missouri. In October, 1930, defendant procured from plaintiffs a right of way agreement giving defendant the right to lay pipe lines across plaintiffs' said land. As this case turns upon the construction of that contract we set it out 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, H. C. Fulkerson and Ida L. Fulkerson, 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:

"Northeast Quarter 160 rods, Section 29, 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, resident 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."

About May, 1931, defendant laid a pipe line across plaintiffs' land, whereby certain damage was done to plaintiffs' fences, crops and the surface of the land along the pipe line. The pipe is two and a half or three feet beneath the surface and does not now interfere with cultivation of the land. For a time a ridge of earth was left and in some places the filled-in earth over the pipe sank, leaving depressions. The ridges and depressions have been leveled and now present no obstacle to the use of the surface. Plaintiffs' petition seeks recovery specifically for the damage to the fences, the corn crop and grass destroyed, damage to the surface of the land occasioned by the ridges and depressions above referred to and the trampling and packing of the soil, all of which are itemized, and in addition damages for depreciation in the "market value and the actual value" of plaintiffs' said tract as a whole "as a result of the grant of said easement and the rights therein given defendant and its assigns and the construction and maintenance of said pipe line."

The case was tried and submitted to the jury on the theory that plaintiffs were entitled to recover for the alleged depreciation in value of the entire tract on account of the grant and the existence of the easement, and plaintiffs were permitted to recover such depreciation, which their evidence introduced over defendant's objections, tended to show, in...