Kamo Elec. Co-op., Inc. v. Cushard

• Decision Date: 05 June 1967
• Docket Number: No. 24640,24640
• Citation: 416 S.W.2d 646
• Parties: KAMO ELECTRIC COOPERATIVE, INC., Appellant, v. William C. CUSHARD and Elizabeth Ruth Cushard, Respondents.
• Court: Missouri Court of Appeals

Page 646

416 S.W.2d 646

KAMO ELECTRIC COOPERATIVE, INC., Appellant, v. William C. CUSHARD and Elizabeth Ruth Cushard, Respondents.

No. 24640.

Kansas City Court of Appeals, Missouri.

June 5, 1967.

Jack L. Rorschach, Vinita, Okl., John M. Belisle, Belisle, McNabb & Kyser, Butler, for appellant.

E. J. Murphy, Butler, for respondents.

CROSS, Judge.

By this proceeding plaintiff Kamo Electric Cooperative, Inc., has condemned a strip of land 100 feet wide and 2805 feet long across the 220 acre farm of defendants William C. Cushard and Elizabeth Ruth Cushard, as a perpetual right-of-way easement for purposes of constructing and maintaining an electric transmission line. The commissioners appointed by the court assessed defendants' damages at $1,250.00 and defendants filed exceptions to the award. Upon trial by a jury in circuit court on the issue of how much the market value of defendants' farm had been reduced by its subjection to the easement, the jury returned its verdict awarding defendants the sum of $4,800.00. Plaintiff has appealed.

Kamo's principal assignments of error are (1) that the trial court erred in receiving and permitting the jury to consider evidence as to the 'looks' and 'unsightliness' of the transmission line 'in assessing respondents' damages' and in refusing an instruction withdrawing that element of damage from the jury's consideration, and (2) that the trial court erred 'in receiving and permitting the jury to consider the element of danger or hazard in assessing respondents' damages' and in refusing an instruction withdrawing the element from the jury's consideration.

Defendants' farm contains 220 acres of well improved crop and pasture lands in Bates County, approximately 2 miles west of Passaic. At the present time, about half of the farm is in pasture land grazed by Angus cattle and the other half is under cultivation. The entire farm is tillable. It was described by Harlow Tipton, Kamo's witness, as one of the top twenty farms around the area. The 100-foot wide right-of-way easement runs diagonally north and south clear across the farm for a total distance of slightly in excess of one-half mile. It traverses both pasture and crop fields. Upon and along the easement plaintiff has constructed a 69,000 volt electric transmission line consisting of eight single poles supporting crossarms, insulators, circuit breakers, wires, lightning arrestors and other necessary electric equipment. Minimum wire height is specified as 22 feet. The line is plainly visible from the public highway and is located within 600 feet of defendants' farm improvements.

Defendants produced three real estate salesmen, H. H. Page, Glenn Cummings and Don Simpson, all of whom testified on the question at issue. Mr. Page testified that the farm had a value of $50,000.00 prior to the construction of the line and a subsequent value of $45,000.00, thereby depreciating the property's value by $5,000.00. The witness stated that in arriving at his figures he took into consideration 'the looks' of the transmission line as it affected the farm's market value, and that 50% of the $5,000.00 depreciation was attributable to that factor. The remaining 50% was for 'inconvenience' in farming and tillage. Mr. Page stated that the easement was located on the best part of the farm, was 'most noticeable' when you drive up and down the highway, and that it is a 'sore spot'. When asked what he took into consideration in arriving at 'this $5000.00', the witness answered: 'A. The very fact that your easement goes diagonally across the best part of the farm is most noticeable when you drive up and down the highway, and I think it is a sore spot. In most of the places I will go along with an easement if it follows the fence lines, or if it follows the road, but when it goes diagonally across the field, and especially a farm, I think you have ruined that farm for sale. I wouldn't buy one. * * * I think its very detrimental. A prospective buyer approaches a farm, or a piece of property, and the first impression he has of that property I think has a great deal to do with the price tag that he is going to put on that property. And with a high line in the present position that its in on this particular property, I think that most buyers, or it is my opinion the buyer would say, 'Let's go look at another farm''.

Glenn Cummings valued the property at $49,500.00 before the taking and at $44,000.00 after the appropriation. He attributed the $5,500.00 diminution in value to 'nuisance value' and 'unsightliness'--65% or $3,750.00 to the former and 35% or $1750.00 to the latter. He testified on cross-examination as follows: 'Q. Mr. Cummings, what did you take into consideration when you arrived at this figure of $5,500.00 difference in value before and after? A. Well, I was thinking mainly in terms of a resale of the property, or sale of the property, rather. People object to those things on their farm because of their nuisance value and looks, and it certainly didn't do anything to improve the farm, its definitely a detriment to it. Q. Well, you took into consideration that there is objections to people buying farms that has light poles across it? A. Yes, across a farming area of it.' When asked on cross-examination to enumerate the elements he had considered in arriving at his estimate of damage, Cummings stated there was 'also possibly some danger from people being on a load of hay and so forth up close to the line and possibly touching it'. Thereafter defendants' counsel inquired, 'You say you base some of this on danger'. Over Kamo's objection the witness was permitted to answer: 'There would be a danger involved here if he sold this hay, or loaded it in the field on trucks which would go seven or eight bales high and then a man standing on that loaded truck could conceivably reach that line, or touch it'.

Defendants' witness Simpson testified that in his opinion the farm was worth $55,000.00 before the appropriation, that its value had been depreciated $5,000.00 by the taking and use of the easement and that the present value of the property was $50,000.00. In reference to the location of the easement he said, '* * * (Y)ou are taking the best part of his farm. If you was going to build a house, there is where you would build it. That's hurting the whole thing'. In arriving at the figure of $5,000.00 the witness took into consideration the 'beauty of the farm', the fact that the transmission line 'hurt the appearance of the farm' and the 'inconvenience' it caused. He attributed 40% of the $5,000.00 figure, or $2,000.00, to the element of damage to the 'looks' of the property and the other 60%, or $3,000.00, to the 'inconvenience' feature. Further testifying that 'the unsightly power lines' affected the fair market value of the property, the witness said he had tried to sell several farms that had power lines on them, but that 'out of twenty buyers there is very few people that will buy a farm with lines through the heart of it'. His 'personal experience' was further stated as follows: 'Well, you have a client, and you drive up to a farm, and the best part of it is taken out by poles, right then he will say, he will make up his mind that you have got to drop that down, that farm down below market price. I have had them say 'Let's go on by, I don't want to buy a farm with lines on it''.

Following the testimony of defendants' witnesses Page, Cummings and Simpson, plaintiff moved the court to strike the whole of their testimony and, alternatively, to strike that portion which dealt with 'looks' or 'unsightliness'. Additionally, at the conclusion of witness Cummings' testimony, plaintiff moved the court to strike the whole thereof or that portion dealing with 'danger' or 'hazard' resulting from the transmission lines. In each instance plaintiff's motion to strike was refused by the court.

Defendant William C. Cushard testified that defendants' farm had a value of $55,000.00 before the right-of-way for the easement was taken, and a value of $48,500.00 following the taking, making a total depreciation of $6,500.00.

Maurice Solomon, local manager of Osage Valley Electric Cooperative of Butler, called as a witness by defendants, testified in part as follows: 'Q. Now, to be sure I understand you, Mr. Solomon, if Mr. Cushard went out to bale hay under this line, and he was stacking bales of hay, we will say, on a wagon, a truck or something, and had to drive under that line, assuming it looked like it was going to rain, he was hurrying, as a very qualified man would you say that that man might be in danger if he got within three feet of that line? A. No, I'd say he wouldn't be in any danger. * * * I would say that in a case like this, probably, on a load of hay, I'd say he would have to get up to almost touching the line before, if it was on a clear day and everything. Q. Now, I am talking about it is getting cloudy, it looks like it is going to rain, he is in a hurry to put his hay up, he has got a man, or himself, up on top of a load of hay. Let's say he has got a pitchfork in his hand. Do you mean to say he could just go up and touch that line and it wouldn't hurt him. A. No, sir, he could not. Q. He couldn't come within three feet of it, could he, Maurice, and not run the risk of getting killed on the spot? A. To be truthful, I wouldn't want to come any closer than that. Q. You wouldn't want to come within three feet of it? A. No.'

John T. McGuire and Harlow Tipton were produced as expert witnesses on Kamo's behalf. Mr. McGuire testified defendants' damages amounted to $1540.00. Mr. Tipton placed the damages at $2,000.00.

Kamo's first point presents the question whether the 'looks' or unsightliness of its electric power line built upon defendants' farm may be considered by the jury as a compensable element of resultant damage. Necessarily attending this inquiry are the fundamental concepts that owners of private property taken or damaged...