Kiser v. Phillips Pipe Line Co.

• Court: Kansas Supreme Court
• Writing for the Court: HUTCHISON, Justice.
• Citation: Kiser v. Phillips Pipe Line Co., 141 Kan. 333, 41 P.2d 1010 (Kan. 1935)
• Decision Date: 09 March 1935
• Docket Number: 31766.
• Parties: KISER v. PHILLIPS PIPE LINE CO.

41 P.2d 1010

141 Kan. 333

KISER v. PHILLIPS PIPE LINE CO.

No. 31766.

Supreme Court of Kansas

March 9, 1935

Syllabus by the Court.

Measure of damages for permanent injury to land is difference in fair market value of land before and after injury, whereas measure of damages for temporary injury is reasonable cost of repairing the injury with interest, which may include value of use, or diminution of rental value, together with special damages for injury to crops or improvements.

Where special finding was that damage to land was temporary and general verdict allowed certain sum for damage to land solely on evidence as to difference in market value before and after injury, judgment could not include allowance for damage to land (Rev. St. 1923, 60-2918).

1. Temporary damages to real estate must be measured by a different or modified rule than that used in establishing permanent damages thereto.

2. Where an answer to a special question in a damage suit gives the several items and amounts contained in the total of the general verdict, and an answer to another special question shows that two of those items were not properly included according to the findings of the jury, judgment should be rendered on the special findings, notwithstanding the general verdict, by the elimination of those two items of damage.

Appeal from District Court, Miami County; G. A. Roberds, Judge.

Action by George L. Kiser against the Phillips Pipe Line Company. From a judgment for plaintiff, defendant appeals.

Modified and affirmed.

G. P Cantrell, of Bartlesville, Okl., and Edw. H. Coughlin and R E. Coughlin, both of Paola, for appellant.

Karl V Shawver, of Paola, for appellee.

HUTCHISON Justice.

This is an action by a farmer and dairyman to recover damages from the defendant pipe line company for the loss of cream, injury to cows, loss of calves and heifer, and loss of valuation of land by reason of overflow from septic tanks and leakage of gasoline through earthen banks, and one particular leakage from a large gasoline tank which permeated the soil, ran down the draw from which his cattle drank water, and filled his well and cistern and greatly reduced the value of his land for which he claimed damages in the total sum of $2,046.50. The jury found in favor of the plaintiff in the sum of $750, and answered four special questions, and the trial court rendered judgment on the general verdict against the defendant for $750, from which defendant appeals.

The farm of the plaintiff consisted of 160 acres through which the pipe line of the defendant company ran. The land sloped from the northeast to the southwest, and a draw ran through it in that direction, in which there was water during nearly all the year. In 1930, the defendant purchased from plaintiff 351/2 acres in the upper or northeast corner of plaintiff's farm, and in May, 1931, it constructed thereon two large gasoline tanks in connection with a pumping station and necessary kindred equipment. In 1932 there were some breaks in some of the earthen dikes, which released some gasoline into the drainage ditch or draw, and on November 19, 1932, a serious break occurred in one of the large gasoline tanks permitting a very large quantity of gasoline to run down the drainage ditch running through plaintiff's farm.

The first assignment of error is in the admission of incompetent evidence given by two veterinary surgeons as to the effect on cattle drinking water having gasoline in it or on it. These witnesses stated they were treating it as similar in effect to that produced by crude oil, with which they admitted being more familiar. This matter of limited experience had only to do with the comparative weight of their testimony, but did not in any wise make their testimony incompetent.

Our attention is next directed to an apparent discrepancy in the date of loss of milk supply, a difference of about a month and a half where plaintiff alleges the loss at a specific sum per week, but the answer to a special question shows the jury did not allow plaintiff the full amount claimed therefor, which result might readily be reached by reducing the number of weeks or the rate of loss per week, or both, and therefore it is not a reversible error.

The next assignment of error concerns the element of damage to the real estate and as to it being permanent or temporary damage, and this assignment of error concerns the introduction of testimony as to such damage, the giving of instructions on this question, the overruling of the motion for judgment on the answers to the special questions notwithstanding the general verdict, and the overruling of the motion for a new trial.

It was said in the opinion in Dye v. Rule, 138 Kan. 808, 28 P.2d 758, with reference to the determination of the motion for judgment on the answers to the special questions, that we must look to the pleadings, the special questions with their answers, and the general verdict.

The petition states that the value of plaintiff's land before the acts described as contaminating the water thereon and rendering the land of practically no value for farming purposes sea was a certain amount per acre for each of the two portions of it, 44 1/2 acres in the northern portion, and 80 acres in the southern portion, and that the same was worth a certain amount per acre at the time of filing this...