Missouri Power & Light Co. v. Creed

Citation32 S.W.2d 783
Decision Date02 December 1930
Docket NumberNo. 21151.,21151.
PartiesMISSOURI POWER & LIGHT CO. v. CREED et ux.
CourtCourt of Appeal of Missouri (US)

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

"Not to be officially published."

Condemnation proceeding by the Missouri Power & Light Company against John W. Creed and wife. From a judgment in favor of defendants, plaintiff appeals. Transferred from Supreme Court .

Reversed and remanded.

Fry & Hollingsworth, of Mexico, Mo., S. S. Nowlin, of Montgomery City, and W. B. Whitlow, of Fulton, for appellant.

Baker & Baker, of Fulton, and N. T. Cave, of Columbia, for respondents.

BENNICK, C.

This is an appeal from the judgment of the circuit court of Montgomery county in a condemnation proceeding, which was brought under the provisions of article 2, chapter 13 (sections 1792-1800), Rev. St. 1919; section 1791 thereof having been subsequently repealed and re-enacted, Laws 1921, p. 199.

Plaintiff, Missouri Power & Light Company, is a public utility corporation, engaged in the manufacture, distribution, and sale of electrical energy, and in the operation of plants in Jefferson City, Mexico, and other communities in the state. In 1929, the company found it desirable and necessary to construct a transmission line between the two cities named, over a distance of approximately 47 miles, and on May 4, 1929, it obtained an order of convenience and necessity from the Missouri Public Service Commission for that purpose.

Shortly thereafter it proceeded to secure its right of way for said line, a part of which was to extend across the farm owned by defendants, which was located a mile or so south of the village of Auxvasse, in Callaway county. Failing to secure the right of way in its negotiations with defendants, plaintiff, on May 29, 1929, instituted the present proceeding by filing its petition in the circuit court of Callaway county.

Said petition described the proposed transmission line as being a three-phase, 66,000-volt line, supported by steel towers, with not more than six conductors, and an overhead static wire. The easement sought was to be 60 feet in width, and 1,905 feet in length, and upon such strip were to be located two towers, the foundation of each to be within an area not exceeding 30 feet square in its entirety, and not exceeding 24 feet square at the surface or ground line. The towers themselves were described as being of galvanized steel, with a height above the ground of approximately 62 feet, and with a foundation firmly set 10 feet in the ground in concrete. Upon three cross-arms affixed to the towers, the lowest of which is 40 feet above the ground, are suspended three conductors or wires, with a minimum clearance above the ground of 20 feet under the most adverse weather conditions. Each wire is one-half inch in diameter, weighs three-tenths of a pound per foot, and is composed of six aluminum strands, and one steel strand, the former to serve as conductors, and the latter to give strength. At the end of each line is an automatic switch, so constructed that if a wire should break, a circuit breaker would instantly open, and the further transmission of current be stopped.

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 except the portion occupied by the towers themselves, each of which would stand upon approximately .75 of an acre; that defendants would have the continued use of the remainder of said strip of land; that plaintiff should have the necessary ingress and egress at the ends of the strip for the purpose of constructing, maintaining, repairing, and operating the line; that the patrolling of the line would be by plaintiff's employees on foot only; and that if it should be necessary to remove any of defendants' fences in connection with the construction or maintenance of the line, it would replace them in as good condition as before their removal.

Following the filing of said petition, three commissioners were appointed to assess the damages, and on June 13, 1929, they filed their report, awarding to defendants the sum of $100. On June 18, 1929, defendants filed their exceptions to the report, and asked for a new appraisement and assessment of damages by a jury, which request the court granted. There after defendants took a change of venue, and the case was sent to the circuit court of Montgomery county, where a trial was had, commencing October 31, 1929, and ending on the following day. The verdict of the jury was for defendants in the sum of $800, and from the judgment rendered, plaintiff, after the overruling of its motion for a new trial, prayed for and was granted an appeal to this court.

While defendants' farm consists in its entirety of 200 acres, the proof as to damages was limited to one tract of 165 acres, over a portion of which the line passed. This tract was shown to have been used exclusively as a pasture and feeding lot, with no division fences, and, as distinguished from the land to which it was contiguous, to have been specially and peculiarly fitted by its location and character for the one purpose for which it was used, but wholly unadapted for the raising of crops.

The evidence for defendants (upon whom the burden of proof was held to rest) was that as many as 500 cattle and 1,000 hogs were fed in the field each year; that the land was underlaid with limestone, and covered with blue grass; that it contained a few shade trees, and had bluffs on either side which furnished shelter for the animals from the wintry winds; that there was running water on the land all the year round; that the transmission line passed near the bluffs, and along the edge of the stream, and between the bluffs and the feeding troughs; that the cattle, in passing from the feeding troughs to the shelter of the bluffs, would be required to pass under the transmission line; and that their place of bedding was practically under the line, or just a little to one side of it. As to the extent of the depreciation, the evidence was that the difference between the fair and reasonable market value of the pasture immediately before and after the condemnation would range from $1,000 to $3,000.

While limiting themselves in their answers to the depreciation in market value, defendants and their witnesses based their conclusions upon certain elements which they took into consideration as affecting the use to which the land might be put. The principal item of damage relied upon was that strange men patrolling the strip and working amongst the stock, and particularly the cattle, would frighten them, and cause them to stampede and become nervous and lose weight, and perhaps cause some of them to be crippled. Other matters classified as being of minor consequence, but yet undoubtedly relied upon to a greater or less extent by the witnesses, were that plaintiff's employees patrolling the right of way might carry hog cholera or other diseases upon the land; that they might bring dogs along with them, which would frighten the cattle; that the transmission line might break and come in contact with persons or stock, and cause injury; that gates or fences might be left open; that the employees might trespass upon the land outside of the right of way, and do damage to the remainder of the pasture; and that the mere right of plaintiff's employees to go upon the land for the purposes of the easement was a source of damage which would affect the value of the land at a sale. None of the witnesses were able to place a value upon each of such elements of damage separately, but instead considered them all together and in their entirety as bringing about the depreciation in the reasonable market value of the land by reason of the taking of the easement.

Practically all of plaintiff's witnesses, some of whom owned land over which the line passed, testified that there would be no depreciation on account of the giving of the right of way, if indeed there would not be an appreciation of value by reason of the future accessibility of electrical power.

It occurs to us at the outset that this case will be of more than the usual interest to the bench and bar, for the reason that it has been the occasion for a definite determination of the troublesome question of appellate jurisdiction in condemnation cases. A long line of Supreme Court cases are to be found in the books, holding either expressly or else sub silentio, that a suit to condemn land for a right of way, even though only an easement and not the fee is affected, and regardless of the fact that the only contested issue goes to the extent of the damages allowable, nevertheless involves title to real estate so as to confer the appellate jurisdiction upon the Supreme Court. Following this line of decisions, and governed by our fixed policy of resolving all doubts as to our jurisdiction against ourselves, we transferred this cause to the Supreme Court after its first submission as being one involving title to real estate. That court remanded the case to us, however, holding that title to real estate was not directly involved so as to divest us of jurisdiction, inasmuch as the case went off solely upon the question of damages, and in the course of its opinion it overruled the cases holding to the contrary, which had afforded the basis for our transfer. Missouri Power & Light Co. v. Creed (Mo. Sup.) 30 S.W.(2d) 605.

Passing now to the merits of the case proper, we find that in their very able brief, counsel for plaintiff have noted seventeen assignments of error. To discuss each of such assignments separately, many of which overlap in numerous particulars, would unduly lengthen this opinion, and call for unnecessary repetition. We...

To continue reading

Request your trial
33 cases
  • Empire Dist. Elec. Co. v. Johnston
    • United States
    • Missouri Court of Appeals
    • 11 Mayo 1954
    ... ... JOHNSTON et al ... Springfield Court of Appeals, Missouri ... May 11, 1954 ...         [241 Mo.App. 760] ... A. E ... Kansas City Power & Light Co. v. Gauld, Mo.App., 222 S.W.2d 940, 945(13). We have no right ... 454, 40 S.W.2d 730, 731(1); Missouri Power & Light Co. v. Creed, Mo.App., 32 S.W.2d 783, 786(1) ... 11 In this connection, see also City ... ...
  • Riggin v. Federal Cartridge Corp.
    • United States
    • Kansas Court of Appeals
    • 16 Junio 1947
    ... ... Corporation, a Corporation, Appellant Court of Appeals of Missouri", Kansas City June 16, 1947 ...          Delivered ...     \xC2" ... Spreckels, (Cal. App.), 101 P. 920; ... Peters v. Lynchburg Light Co., (Va.), 61 S.E. 745; ... Lynch v. Ninemire Packing Co., (Wash.), ... Ass'n of St. Louis, (Mo.), 141 S.W. 2d ... 789 (l. c. 797); Mo. Power & light Co. v. Creed, et ux., ... (Mo. App.), 32 S.W. 2d 783; Mo ... ...
  • Willsey v. Kansas City Power & Light Co., 51217
    • United States
    • Kansas Court of Appeals
    • 17 Julio 1981
    ... ... v. Woodard, 216 Ky. 618, 287 S.W. 985 (1926); Gulledge v. Texas Gas Transmission Corp., 256 S.W.2d 349 (Ky.1952) ...         Missouri": Kamo Electric Cooperative, Inc. v. Cushard, 416 S.W.2d 646 (Mo.App.1967); Phillips Pipe Line Co. v. Ashley, 605 S.W.2d 514 (Mo.App.1980) ...   \xC2" ... Page 279 ... land in the light of the use to which it may be put.' Missouri Power & Light Co. v. Creed, 32 S.W.2d 783, 787 (Mo.App.1930)." (Emphasis added.) 605 S.W.2d at 517-18 ...         [6 Kan.App.2d 613] That case also dealt with the ... ...
  • Gillespie v. Board of Com'rs of Albany County
    • United States
    • Wyoming Supreme Court
    • 13 Marzo 1934
    ... ... Commission, 49 S.W.2d 282-284; 10 R. C. L. 145; ... Illinois Power Co. v. Wieland, 155 N.E. 272-274; ... Weiser Valley Co. v. Ryan, 190 ... many miles of fence to prevent trespass. Decheck v ... Duquesne Light Co. (Pa.) 157 A. 685; Louisville & N ... R. Co. v. Hall, 136 S.W ... 287; Light Company v. Creed (Mo.) 32 S.W.2d 783; ... Yolo Water & Power Co. v. Hudson (Cal.) 186 ... public roads, we refer to Section 42-114, R. S. 1931; ... Missouri Co. v. Creed, 32 S.W.2d 783. The cases ... cited by respondent are ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT