Laclede Gas Co. v. Abrahamson

• Decision Date: 12 November 1956
• Docket Number: 45231,Nos. 45230,No. 1,s. 45230,1
• Parties: LACLEDE GAS COMPANY, a Corporation, Plaintiff-Respondent, v. Ruth Wright ABRAHAMSON et al., Defendants, John J. Gassner, Grace M. Gassner, Lawrence B. Graflage, Clara P. Graflage, et al., Intervenors-Appellants
• Court: Missouri Supreme Court

Page 100

296 S.W.2d 100

61 A.L.R.2d 1286

LACLEDE GAS COMPANY, a Corporation, Plaintiff-Respondent, v. Ruth Wright ABRAHAMSON et al., Defendants John J. Gassner, Grace M. Gassner, Lawrence B. Graflage Clara P. Graflage, et al., Intervenors-Appellants.

Nos. 45230, 45231.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 10, 1956.

George W. Curran, Paul W. Lashly, St. Louis, for appellants.

Thompson, Mitchell, Thompson & Douglas, Guy A. Thompson, James M. Douglas, Richard L. Eckhart, St. Louis, for respondent.

HYDE, Judge.

These cases are consolidated appeals from orders denying motions to intervene in an action to condemn easements in the described lands of defendants for the establishment, maintenance and operation of an underground gas storage reservoir. The question for decision is whether appellants (hereinafter called intervenors) have an absolute right to intervene under Section 507.090 (statutory references are to RSMo. and V.A.M.S.), under the circumstances hereinafter described, in an action which does not seek to condemn any rights in lands owned by them. We have jurisdiction because the construction of Section 26, Art. I of our 1945 Constitution is involved.

Plaintiff filed the condemnation suit under Chapter 523, Sections 523.010-523.100, pursuant to the Underground Gas Storage Act, Sections 393.410-393.510, alleging that it needed approximately 1800 acres for underground storage (of which it had acquired by purchase rights in 484 acres) which was located within a larger tract of 6000 acres which had underground formations suitable for gas storage. The 1800 acre tract was called the 'dome area', claimed to contain an underground dome which was the highest part of the formations suitable for gas storage. The whole 6000 acre tract was known as the 'Lange Area'. Intervenors own land in the Lange Area outside the dome area. Plaintiff had obtained an order from the Public Service Commission as required by Section 393.440 that it was in the public interest for plaintiff to exercise the rights to condemn lands and the interests therein necessary or convenient to its operations for the storage of gas in four specified formations underlying the Lange Area at a depth of more than 1000 feet. We affirmed this order in Collins v. Public Service Commission of Missouri Mo., 293 S.W.2d 345. Plaintiff, in this action, only sought to condemn the use of these formations under the dome area.

It seems to be agreed that gas will collect and reamin in the highest part of the formations and that its pressure will push back the underground water and increase the amount and pressure of water under adjoining lands. Intervenors contend they have an interest in this case within the meaning of Subsection 1(2) Section 507.090, which gives them an absolute right to intervene, 'when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action.' Intervenors say they have an interest because of the effects of storage of gas in the dome area upon water under their lands; because plaintiff was given the right under the Public Service Commission order to condemn the entire Lange Area, which it expressly reserves; because they will not be free to contract with others for gas storage under their lands; and because the question of public use will be finally determined in this case. They also contend the Commission's order is invalid and the Underground Gas Storage Act is unconstitutional. However, since these appeals are from orders denying intervention, if intervenors did not have an interest sufficient to authorize them to intervene as a matter of right, these questions of validity and constitutionality, some of which have been determined in the Collins case, supra, could not be raised by them now in this Court, as they attempt to do in their brief. In State ex rel. Farmers Mutuals Auto Ins. Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318, 321, we defined 'interest', as follows: "Interest', generally, means a concern which is more than mere curiosity, or academic or sentimental desire. One interested in an action is one who is interested in the outcome or result thereof because he has a legal right which will be directly affected thereby or a legal liability which will be directly enlarged or diminished by the judgment or decree in such action.' We further stated, 273 S.W.2d loc. cit. 321: 'As used in the above quoted portion of Section 507.090, and in intervention statutes generally, 'interest' means a direct and immediate claim to, and having its origin in, the demand made or proceeds sought or prayed by one of the parties to the original action, but such 'interest' does not include a mere consequential, remote or conjectural possibility of being in some manner affected by the result of the original action; to come within the above statute, the 'interest' must be such an immediate and direct claim upon the very subject matter of the action that intervener will either gain or lose by the direct operation of the judgment that may be rendered therein.' See also Pine Lawn Bank & Trust Co. v. City of Pine Lawn, Mo.Sup., 285 S.W.2d 679, 685.

Whether intervenors have the necessary interest for mandatory intervention involves the determination of whether there was a taking under Section 26, Art. 1, Constitution. In this action, plaintiff does not seek to condemn rights in any land owned by them. Intervenors do not even claim an easement in the lands described in the petition for condemnation. (See Restatement of Property, Sec. 507.) We think our previous decisions show that any possible damage to their land would be consequential damages only resulting from the operation of gas storage on the land condemned, for which they might have a...