Kamo Elec. Co-op. v. Baker, 44809

• Decision Date: 12 March 1956
• Docket Number: No. 2,No. 44809,44809,2
• Citation: 365 Mo. 814,287 S.W.2d 858
• Parties: KAMO ELECTRIC COOPERATIVE, Inc., Appellant, v. Clarence S. BAKER and Alice Baker, Respondents
• Court: Missouri Supreme Court

Page 858

287 S.W.2d 858

365 Mo. 814

KAMO ELECTRIC COOPERATIVE, Inc., Appellant, v. Clarence S. BAKER and Alice Baker, Respondents.

No. 44809.

Supreme Court of Missouri, Division No. 2.

March 12, 1956.

Jack L. Rorschach, Vinita, Okl., Sam Appleby, Jr., Ozark, Charles E. Ginn, Aurora, for appellant.

Andrew Howard, Billings, Bill Davenport, Ozark, for respondents.

STOCKARD, Commissioner.

This is an appeal from a judgment in the amount of $1,200 awarded to respondents as compensation for the appropriation by plaintiff of an easement by condemnation for the construction, operation and maintenance of an electric transmission line over respondents' land. On appeal to the Springfield Court of Appeals the judgment was affirmed. KAMO Electric Cooperative v. Baker, Mo.App., 274 S.W.2d 497. The case was transferred here pursuant to the provisions of Sec. 10, Art. V of the Missouri Constitution 1945, V.A.M.S., because of the general interest in and the importance of the questions involved; therefore it is here as though upon an original appeal.

By its petition, appellant sought to appropriate a perpetual easement 100 feet in width and 3,525 feet in length over the real estate of respondents (1) for the construction, operation and maintenance of an electric transmission line; (2) to construct necessary gates in fences in order to permit ingress and egress to said electric transmission line; (3) to cut and trim trees and to remove any obstructions within the 100 foot right of way which would interfere with the construction, operation and maintenance of the transmission line; and (4) to cut down and remove any tree or growth and to remove any structures within 50 feet on either side of the transmission line which might endanger the same by fire, storm or otherwise, or which might in any way cause the transmission line to become dangerous to life or property.

Appellant covenanted in its petition that the right of way would not be fenced or enclosed by it; that it would make no use of the right of way except for the erection of said electric transmission line and the operation and maintenance thereof; that the use by respondents of the land covered by the easement would not be obstructed or interfered with except insofar as this may be done by the construction, operation and maintenance of the transmission line and by patrolling the line by condemner's employees; and that if it should be necessary to remove any fences in connection with the construction, operation and maintenance of the transmission line, appellant would replace the fences in as good a condition as they were before removal. Reference is made to the reported opinion by the Springfield Court of Appeals, 274 S.W.2d 497, for additional facts concerning the physical features of the electric transmission line and the location of the right of way on the farm of the respondents.

At the time of the trial the electric transmission line had been constructed. Appellant assigns as error the admission into evidence of testimony concerning the damage on the right of way which occurred during the construction of the line.

The general rule is well established in this State that, if a part of a tract of land is taken by condemnation, the just compensation to which the owner is entitled, referred to as damages, is the difference, if any, between the fair and reasonavle market value of the entire tract of land before and after the appropriation of said part. State ex rel. State Highway Commission v. Cox, 336 Mo. 271, 77 S.W.2d 116; Texas-Empire Pipe Line Co. v. Stewart, 331 Mo. 525, 55 S.W.2d 283; City Water Co. of Sedalia v. Hunter, 319 Mo. 1240, 6 S.W.2d 565; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 647; Missouri Power & Light Co. v. Creed, Mo.App., 32 S.W.2d 783; Arkansas-Missouri Power Co. v. Killian, 225 Mo.App. 454, 40 S.W.2d 730; Empire District Electric Co. v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78. It is also well established that the question of damages is to be determined with reference not to the time of trial nor to the time of the construction of the project, but to the time of the appropriation. State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755, 142 S.W.2d 1025; Kansas City Southern Ry. Co. v. Second Street Improvement Co., 256 Mo. 386, 166 S.W. 296; City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149; State ex rel. State Highway Commission v. Blobeck Inv. Co., 233 Mo.App. 858, 110 S.W.2d 860; State ex rel. State Highway Commission of Missouri v. Baumhoff, 230 Mo.App. 1030, 93 S.W.2d 104. The parties agreed that the time of the appropriation in this case was July 10, 1952, which was, of course, before the transmission line was constructed.

'When part of a tract is taken the damages are not limited to such as result from the mere severance of title caused by the taking, but include damages caused by the use of the property for the purpose for which the condemnation is made. Such use embraces the construction of the work or improvement and the maintenance, use and operation of the same.' Lewis, Eminent Domain (3d ed.) Sec. 710. See also 29 C.J.S., Eminent Domain, Sec. 153; 18 Am.Jur. Eminent Domain, Sec. 249; Annotations 49 A.L.R. 697 and 124 A.L.R. 416. If the trial of this case had been held before the transmission line had been constructed, it would have been proper for the jury to take into consideration, when supported by evidence, those various factors resulting from the appropriation which were reasonably apparent at that time and which a purchaser willing but not obliged to buy would consider. 4 Nichols, Eminent Domain (3d ed.) Sec. 14.232. This would include a consideration of the proper and lawful uses for which appellant acquired the right of way, for as stated in Missouri Power & Light Co. v. Creed, supra , the recovery of just compensation is 'limited to (and would therefore include) such damages, whether present or prospective, as arise from risks and hazards which may be known, or may reasonably be expected to result from the construction and maintenance of the utility in a proper and legal manner.' Therefore, it would have been proper for the jury, in determining the burden imposed on the land at the time of and by reason of the appropriation, to take into consideration that appellant was going to construct on the right of way an electric transmission line, and also that it had acquired the right to enter upon the right of way to patrol the line and to operate and maintain it. When there is an appropriation of only a part of a tract of land, lawful and proper uses to be put to the land appropriated may be considered not on the theory that a recovery is to be allowed for speculative risks and contingencies which may never happen, but instead upon the theory that these are matters which affect the market value of the remainder of the land as of the time of the appropriation. The inquiry goes only to the damages sustained by reason of the taking. Missouri Power & Light Co. v. Creed, supra . However, it must be presumed that in constructing, patrolling and maintaining the transmission line, appellant will act in a proper and lawful manner. Missouri Power & Light Co. v. Creed, supra . Testimony concerning the burden at the time of appropriation resulting from the proper use by the appellant of the right of way must be definite and certain, and only such depreciation in value may be considered as may be reasonably expected to follow from the lawful invasion of the premises by the appellant, as distinguished from acts, the results of which are purely remote, speculative, and conjectural in their nature, and which are not fairly and reasonably to be anticipated. Missouri Power & Light Co. v. Creed, supra .

When the electric transmission line had been constructed at the time of the trial the actual damage that was done by the condemner on the right of way during the construction of the transmission line may be shown as evidence of the extent of the burden cast upon the land at the time of the appropriation, provided that the acts were not tortious and the damage could have been reasonably anticipated. Evidence of this nature was admitted in State ex rel. State Highway Commission v. Riggs, 226 Mo.App. 1053, 47 S.W.2d 178. However, when evidence of damage done during construction is admitted the jury should be properly instructed concerning the consideration to be given it.

In this case the owner of the land testified at length concerning damage done during the construction of the transmission line, and stated that during construction appellant drove trucks over the right of way leaving tracks, that holes were dug in which to set the poles, trees were cut and stumps left on the right of way. These acts of respondent were not tortious and at the time of the appropriation could reasonably have been expected to occur in the proper exercise of the rights obtained by condemnation. The reasonable expectation that these acts would occur, as substantiated by the fact that they did occur, constituted a burden on the land at the time of the appropriation. This witness also testified that, during the construction of the line, his cows got out of the field, that they might get out in the future, that fences were cut and left down and that appellant trespassed off the right of way in four different places. The court sustained objections to the testimony that the cows got out and that the fences might be left down. No objection was made to the testimony of the trespasses. The testimony that the fences were cut and left down constituted evidence of tortious acts and should have been excluded.

The difficulty with this case is that both parties apparently misconstrued for what purpose evidence of construction damage could properly be admitted. Appellant took the position that in...