Missouri Power & Light Co. v. Barnett, 48677

• Decision Date: 12 February 1962
• Docket Number: No. 1,No. 48677,48677,1
• Parties: MISSOURI POWER & LIGHT COMPANY, a Corporation, (Plaintiff) Respondent, v. E. P. BARNETT, Keith W. Major, Gladys M. Major, Robert J. Major and Edith E. Major, (Defendants) Appellants
• Court: Missouri Supreme Court

Page 873

354 S.W.2d 873

MISSOURI POWER & LIGHT COMPANY, a Corporation, (Plaintiff) Respondent, v. E. P. BARNETT, Keith W. Major, Gladys M. Major, Robert J Major and Edith E. Major, (Defendants) Appellants.

No. 48677.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1962.

Motion for Rehearing or for Transfer to Court en Banc Denied

March 12, 1962.

William A. Seibel, Jefferson City, for appellants.

J. D. James, Jefferson City, Robert L. Hawkins, Jr., Graham & Hawkins, Jefferson City, for respondent.

HYDE, Judge.

Action for establishment of rights under an easement for an electric transmission line, seeking an injunction against encroaching upon plaintiff's rights. The court made findings of fact and conclusions of law in accordance with plaintiff's claim and entered a decree including a mandatory injunction requiring defendants to remove a house constructed after this suit was commenced. Defendants alleged in their answer and had evidence to show the relief asked and granted would cause loss to them of more than $16,000.00, which is sufficient to show jurisdiction in this Court. State ex rel. Sims v. Eckhardt, Mo.Sup., 322 S.W.2d 903, 905.

In 1929, plaintiff obtained a right-of-way easement 'to erect, maintain and operate a line of steel towers and wires with necessary anchors, guys and braces upon and across certain lands owned by the grantor,' the center line of the right of way being described in the deed. This conveyance further stated: 'There will be only three towers on the above described centerline. The easement hereby granted includes the right to transmit electrical energy over said line and to enter upon said premises for the purpose of erecting said steel towers and supports and stringing said wires and repairing or removing the same, and the right to trim or remove such trees as interfere with said line.' It further stated that acceptance by the grantee 'shall obligate it to pay any damages, which may be caused to crops and fences from the construction and maintenance of said steel tower line; said damages, if not mutually agreed upon, to be ascertained and determined by three disinterested persons,' and stated how they should be selected.

The court made the following findings of fact, which are fully supported by the evidence:

'1. Plaintiff, a public utility company, pursuant to authority granted by the Public Service Commission of Missouri, constructed an electric transmission line from Jefferson City, Missouri, to Mexico, Missouri, in the latter part of 1929, and the line has been operated and maintained in its original location at all times since its erection. That said electric transmission line is an integral part of an electric production and transmission system serving a wide area in Missouri. The line is constructed of steel towers, each of which has three steel cross-arms from which are suspended six electric conductors of aluminum with steel cores. Three conductors on each side comprise a circuit operated at a voltage of 69,000 volts. A seventh wire, known as a shield wire, is stretched between the tops of the towers and serves to protect the line from damage by lightning.

'2. Defendants are the owners of Lot One (1), Block B, Section Two (2), of Jordan Hill's Subdivision to the City of Jefferson, Cole County, Missouri, and are the successors in title of the grantors of an easement to plaintiff for the erection, maintenance and operation of the electric transmission line, and said defendants acquired the above described real estate with actual and constructive notice of the existence of said easement of plaintiff across said lot.

'3. In April of 1929, prior to the erection of the transmission line, plaintiff for the consideration of $150 secured a right-of-way easement across a farm owned by defendants' predecessors in title. The line was constructed along the center line described in the easement and has remained in the original location at all times since its erection. That said grantors of the easement owned in excess of 100 acres at the time of the grant, all of which at that time was devoted to agriculture. There were no buildings or structures of any kind near or under the transmission line. In September, 1956, a subdivision was plotted, which included the lot in question here now owned by defendants. The corporate limits of Jefferson City were extended to include the portion of the transmission line and the defendants' property in question here. In 1955 some residential development began east of said line, but no construction was attempted which directly involved the transmission line until defendants constructed a dwelling house directly beneath all of the conductors of the line in 1958. None of the towers of the transmission line are located on the lot of defendants, but the conductors suspended from the towers pass directly across and over the lot of defendants. The clearance between the lowest conductor and the top of the roof of defendants' house is 17.83 feet.

'4. Said electric transmission line has five steel towers located south of the Missouri River [in Jefferson City]. The first tower next to the river, known as the Bluff Tower, and the fifth and last tower generally south thereof have insulators hung in what is known as the strain position, while the three remaining towers have insulators hung in the suspension position. Insulators hung in the strain position are required where the direction of the line is changed or the tension in the conductors of the line is changed. The fifth tower south of the Missouri River is the first tower immediately south of defendant's lot. Any work on the conductors between the tower next to the river on the bluff and the fifth tower to the south requires the conductor or conductors between those two points to be lowered to perform said work. The transmission lines must be periodically inspected for both mechanical and electrical strength, and in order to accomplish such inspection it is necessary to have free access to the conductors and towers on the line. That maintenance is occasioned not only by conditions which occur in the conductors and towers, but also may be the result of outside forces such as wind, lightning, ice, trees, rifle fire and airplanes. That repairs or replacements of damaged conductors cannot be accomplished in the air above the surface of the ground, but such damaged conductors have to be spliced on the ground. That the conductors of this line are of such weight and are handled at such tension that mechanical and mobile equipment is required, and that in raising or lowering the conductors it is necessary to have free access to the surface of the ground immediately below the conductors in a straight line from tower to tower.

'5. That the presence of the house directly under the conductors of the transmission line adds the possibility that a fire in the house could cause damage to the conductors or even cause the conductors to break and fall, and that in fighting any fire in the house if a stream of water directed by firemen should touch any of the conductors or near them it would endanger the life of the person holding the hose. The possibility of any of the conductors for any reason falling across the house creates the hazard of igniting the house and possible harm to any occupant thereof.'

Plaintiff's evidence was that this line was the most important link in its transmission system; that its original cost was more than a half million dollars; and that relocation would not only be costly but that no convenient location is available in the immediate vicinity. At the time the easement was granted the whole area of the transmission line was devoted entirely to agriculture. The corporate limits of Jefferson City, Missouri, were then some distance to the east. However, in 1947, the corporate limits were extended to include the still predominately agricultural area and included all but a small portion of the transmission line south of the Missouri River. The house in question (occupied by defendant Barnett) and two others were the only houses constructed or under construction, at the time this suit was commenced, on the 45 lots that defendants (who are contractors and developers) acquired in the area in January 1958. No other house had been or was being built anywhere under the line, which terminated farther southwest at a step-down substation (to reduce from 69,000 to 13,800 volts) to serve Jefferson City. Defendants own other lots over which plaintiff's line passes. It was admitted that the house could be moved and plaintiff's evidence showed a total cost of $5750.00 for moving and relocating.

In March 1958, defendant Barnett came to plaintiff's office and inquired of V. H. Anderson, its engineer supervising transmission lines, and 'asked what we would do if he built a house under our...