Miller v. Kamo Elec. Co-op., Inc.
| Decision Date | 06 November 1961 |
| Docket Number | Nos. 23279,23280,s. 23279 |
| Citation | 351 S.W.2d 38 |
| Parties | William E. MILLER, Appellant, v. KAMO ELECTRIC COOPERATIVE, INC., Respondent. Earl C. MILLER and wife, Stella A. Miller, Appellants, v. KAMO ELECTRIC COOPERATIVE, INC., Respondent. |
| Court | Missouri Court of Appeals |
George T. Sweitzer, Jr., Harrisonville, Gayles R. Pine, Pine & Welling, Warrensburg, for appellants.
Jack L. Rorschach, Vinita, Okl., John C. Milholland, A. J. Anderson, Harrisonville, for respondent.
This appeal includes two cases which were consolidated by the circuit court and tried together. Plaintiffs-appellants are Missouri landowners. Defendant-respondent is an Oklahoma cooperative corporation engaged in the transmission and distribution of electric power. Plaintiffs sue upon written contracts granting defendant transmission line easements across their respective properties, claiming damages to their real estate. Plaintiffs appeal from directed verdicts and judgments entered in favor of defendant.
Plaintiffs' petitions allege that defendant purchased and plaintiffs sold transmission line easements across and over their real estate; that defendant constructed an electric power transmission line over and along the easements granted; that under the terms of the easement contracts, defendant agreed to pay plaintiffs-grantors, in addition to the recited consideration for the easements, damages to the real estate arising out of the initial construction of the line; that defendant in constructing the line caused damage to plaintiffs' real estate; and, that defendant upon demand has refused to pay said damages.
At the trial plaintiffs introduced copies of the easement contracts and some photographs taken on the frams and undertook to present testimony to show that defendant damaged the lands by cutting standing timber from them. Defendant objected to that line of testimony in the following language: 'We object to that as not a part of the issues in this case; that was provided for in the easement'. The court ruled: 'I am going to sustain the objection as to tree damage'. Plaintiffs then made a formal and lengthy offer to prove (among other things) that defendant cut timber from their farms and to show the extent, nature and value of the timber cut. The offer was refused by the court. Plaintiffs then, 'in view of the court's ruling', declined to offer further proof. Whereupon, the court entered the judgments in favor of defendant.
This appeal is prosecuted by plaintiffs essentially on the complaint that the trial court erred in refusing to permit them to continue in their presentation of evidence that defendant had cut timber from their lands, as the basis of their demands under the contracts for payment of actual damages to their real estate. Our disposition of the complaint turns on the determination of a single basic question--whether, under the terms of the easement contracts, defendant is liable to plaintiffs for actual damages caused by cutting timber from their real estate.
Thus, the contracts are before this court to be read for their meaning. Plaintiffs, and defendant as well, urge that the instruments are clear and contain no ambiguity. Plaintiffs insist that the contracts granted defendant only the right and privilege to do certain future acts--to enter upon the lands, to select a location and there build a transmission line; that the contracts obligated defendant to pay plaintiffs damages to their real estate caused by and determinable only after the performance of those acts. Defendant argues that in making the contracts all future damages had been foreseen by the parties, were negotiated upon, and compensated by the payment of the named contract consideration.
Three easement contracts appear in evidence. Two of them were executed by plaintiff William E. Miller with reference to two separate tracts owned by him. The third contract was executed by plaintiffs Earl C. Miller and wife. Each of the contracts recites two separate items of consideration for the initial grant of easement rights: (1) a nominal sum of $20, paid in hand, and (2) contingently, at a future date, an additional amount 'per pole' and 'per anchor'. The documents are identical except as to their designation of grantors, land descriptions and the 'pole' and 'anchor' consideration, and contain pertinent provisions as follows:
'Transmission Line Easement
'The Grantor--(named)--for and in consideration of the sum of Twenty Dollars ($20.00)--hereby grants, bargains, sells and conveys to said Kamo Electric Cooperative, Incorporated, * * * the perpetual easement and right to enter upon the lands of Grantor * * * (described) * * * and to erect, operate, survey, maintain, repair, rebuild and patrol on or over said lands * * * one or more electric power transmission lines and appurtenant signal lines, telephone and telegraph wires, poles, towers, wires, cables, anchors, guy wires, and appliances necessary in connection therewith * * * together with the right of ingress and egress to, from and over said lands for doing anything necessary or useful to the enjoyment of the easement herein granted. There is also granted to the Cooperative the perpetual right to cut all trees and to remove all other obstacles of such height that could fall within a distance of 5 feet of the outer conductor of the transmission line and facilities of the Cooperative, and to clear all brush, timber, structures, improvements, and fire hazards, located within fifty (50) feet of the center line of said electric power transmission lines, provided, however, the words 'fire hazard' shall not be interpreted to include growing crops and fences.
'To have and to hold said easement and rights unto the Cooperative and its lessees, licensees, successors and assigns, forever.
'The Cooperative, in addition to the consideration hereinbefore stated, agrees to pay to Grantor for the privileges herein granted, when the above line or system has been constructed on the above described property, as follows: $_____ per pole; $_____ per anchor.
'In addition to the recited consideration the Cooperative agrees to pay to the Grantor the actual damages to Grantor's real property, including damage to growing crops, arising out of initial construction of said lines; and to pay thereafter actual damages to growing crops occasioned by operation and maintenance of said lines.
'The Cooperative further agrees that trees that are felled shall be cut in commercial wood lengths, but not less than eight (8) feet, and left on the edge of but off the area authorized to be cleared.'
In the two contracts signed by William E. Miller, the 'additional' compensation was specified at '$10.00 per pole; $10.00 per anchor'. The contract signed by Earl C. Miller and wife stated the 'additional' compensation in a lump sum as follows: .
This court joins the parties in their expressed views that the easement agreements are not ambiguous. We think the meaning of those contracts is apparent from the language employed. In our interpretation, the words and phrases of the documents will be taken in their ordinary sense. The mutual intentions of the parties will be ascertained from the language of the contracts and the facts and circumstances attending their making. As stated in Donovan v. Boeck, Mo.Sup., 217 Mo. 70, 116 S.W. 543, 547: .
Before analyzing these contracts, we direct attention to a Missouri Supreme Court decision which...
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