Missouri Power & L. Co. v. John Hancock Mut. Life Ins. Co.

• Decision Date: 08 December 1931
• Docket Number: No. 21765.,21765.
• Citation: 58 S.W.2d 321
• Court: Missouri Court of Appeals
• Parties: MISSOURI POWER & LIGHT CO. v. JOHN HANCOCK MUTUAL LIFE INS. CO. et al.

58 S.W.2d 321

MISSOURI POWER & LIGHT CO. v. JOHN HANCOCK MUTUAL LIFE INS. CO. et al.

No. 21765.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Rehearing Denied March 21, 1933.

Appeal from Circuit Court, Montgomery County; W. C. Hughes, Judge.

"Not to be published in State Reports."

Condemnation proceeding by the Missouri Power & Light Company against the John Hancock Mutual Life Insurance Company and another. From judgment for defendants, plaintiff appeals.

Reversed and remanded.

Fry & Hollingsworth and Marion S. Francis, all of Mexico, for appellant.

Glover E. Dowell, of Montgomery City, and N. T. Cave, of Columbia, for respondents.

BECKER, Judge.

This is an appeal from the judgment of the circuit court of Montgomery county in a condemnation proceeding brought by the Missouri Power & Light Company, a corporation, a public utility corporation engaged in the manufacture, distribution, and sale of electrical energy, operating plants in Jefferson city, Mexico, and other communities in the state.

In the spring of 1929 the company determined to construct an electrical transmission line from its plant in Jefferson city to its substation and plant in Mexico, and proceeded to secure its right of way for said line. The company found it necessary to cross the 160-acre farm located in Callaway county, owned by the John Hancock Mutual Life Insurance Company, a corporation. The right of way could not be procured through negotiations and the power company instituted condemnation proceedings for a right of way or easement 60 feet wide, said right of way crossing the farm from a point on the south line 329 feet east of the southwest corner thereof, to a point on the north line, 2,361 feet east of the northwest corner thereof, being a strip 3,389½ feet long. Upon said right of way there were located and erected four steel towers 62 feet high, set firmly in a concrete foundation 10 feet in the ground, each tower, including foundation, at the surface or ground line not exceeding 24 square feet. Upon three cross-arms affixed to said towers, the lowest cross-arm being at the height of 40 feet above the ground, there are suspended three conductors or wires with a minimum clearance above the ground of 20 feet when said conductors carry one-half inch of ice, and with a clearance at or near the said towers of 35 feet. Each conductor is composed of six aluminum strands and one strand of steel. The steel strand is for strength and the aluminum strands act as conductors. At each end of the line is an automatic switch. Should a wire break a circuit breaker instantly opens, stopping the transmission of current, and the wire immediately becomes dead.

Following the filing of the petition the circuit court appointed three commissioners who awarded the John Hancock Mutual Life Insurance Company the sum of $200 as its damage. In due course said defendant filed exceptions to the report of the commissioners and asked for a new appraisement by a jury, which was duly granted, and on change of venue the case was transferred to Montgomery county, where a trial was had to a jury which resulted in a verdict in favor of defendant, John Hancock Mutual Life Insurance Company, assessing its damage in the sum of $1,000.

In its petition plaintiff covenanted that it would not fence the right of way; that it did not require or desire the exclusive use or occupancy of any portion of the strip condemned as a right of way excepting that portion which was occupied by the towers themselves and an easement for the suspension above and over said strip of land of its transmission conductors, together with necessary ingress and egress at the ends of the strip for the purpose of constructing, maintaining, repairing, and operating the lines; that the patrolling of the lines would be by plaintiff's employees on foot only, and that if it should be necessary to remove any of defendant's fences in connection with the construction or maintenance of the lines it would replace them in as good condition as before their removal.

The answer of the defendant John Hancock Mutual Life Insurance Company was to the effect that this 160-acre farm is located four and one-half miles from Fulton, Mo., and is all subject to cultivation excepting a timber pasture in the northwest corner of the farm; that the tower near the north side of the farm is located in pasture land; the next tower in a clover and hay field, and the remaining two towers in land used for meadow and cultivation of crops.

The sole question in issue below was the amount of damages that defendant John Hancock Mutual Life Insurance Company was entitled to. The trial court ruled that defendant had the burden of proving the damages to its land and gave it the opening and closing of the case.

Defendant's witnesses testified that the location of the towers themselves and the suspension of the conductors or wires over the 60-foot strip did very little, if any, damage to the strip of land, but that there would be an inconvenience in plowing and cultivating across the 60-foot strip, and that the condemnation of the right of way damaged the entire 160-acre farm. Defendant's witnesses placed the value of defendant's land prior to the construction of plaintiff's transmission line at $50 to $65 per acre, and placed the depreciation of the fair and reasonable market value of the entire 160-acre farm, on account of the construction of the transmission line, at from $5 to $15 per acre.

While generally limiting themselves in their answers to the depreciation in market value, the witnesses for the defendant, as was developed by cross-examination, based their conclusions upon various elements which they testified they took into consideration as affecting the use to which the land might be put. Among these elements which were considered by the witnesses in arriving at their estimate of defendant's damage, we find the following: "(1) That the wires or conductors strung upon the towers might at sometime break and cause injury to persons or live stock, (2) that one or more of the towers might be blown or fall over, (3) that the towers injured the appearance of the farm, (4) that this line being on this farm would decrease the loan value of said farm, (5) that they simply would not want the line on the farm, (6) that the Power Company's employees might leave fences down, (7) that such employees would leave gates open or fences down and permit live stock to escape, (8) that such employees would probably travel over other parts of the farm outside the sixty foot strip, (9) that the Power Company's rights amount to deeding to it the sixty foot strip of land, (10) that the landowner might be prevented from changing or relocating fences, (11) that the landowner could...