Missouri Power & Light Co. v. Thomas

• Decision Date: 17 March 1937
• Docket Number: 34570
• Citation: 102 S.W.2d 564,340 Mo. 1022
• Parties: Missouri Power & Light Company, Appellant, v. Onie E. Thomas et al
• Court: Missouri Supreme Court

102 S.W.2d 564

340 Mo. 1022

Missouri Power & Light Company, Appellant, v. Onie E. Thomas et al

No. 34570

Supreme Court of Missouri

March 17, 1937

Appeal from Platte Circuit Court; Hon. R. B. Bridgeman Judge.

Reversed and remanded (with directions).

D R. Clevenger, John W. Moore and Robert H. Moore for appellant.

(1) Plaintiff has power of eminent domain and the erection and maintenance by it, across the land now owned by defendants of the transmission line which was a permanent part of its system was an appropriation of a right of way for such line and the owners of the land at that time had a complete cause of action either for all damages or, if not estopped, in ejectment. Upon payment of damages to such owners or satisfaction of judgment therefor plaintiff would have complete title to the right of way against such owners. Turner v. Railroad Co., 130 Mo.App. 535, 109 S.W. 101; Doyle v. Ry. Co., 113 Mo. 280, 20 S.W. 970; Tooker v. Power & Light Co., 80 S.W.2d 691; Kent v. Trenton, 48 S.W.2d 571; Schmidt v. Tipton, 89 S.W.2d 569; Lambert v. Drainage Dist., 261 S.W. 349; Webster v. Ry. Co., 116 Mo. 114, 22 S.W. 474. (2) Defendants acquired their title to the land after the erection of the transmission line and the appropriation of the right of way and as against them the plaintiff's title was complete and no cause of action for damages or otherwise passed to them by the sheriff's deed in partition. Lumerate v. Railroad Co., 149 Mo.App. 47; Turner v. Railroad Co., 130 Mo.App. 535; Roberts v. Railroad Co., 158 U.S. 1, 15 S.Ct. 756; Kent v. Trenton, 48 S.W.2d 575. (3) The instruments conveying the right of way executed by George F. Gentry were not in the nature of a lease or license and did not expire when he went out of possession nor when defendants bought the land nor at any other time. By them he attempted the absolute conveyance of a perpetual right of way and merely the consideration was payable in installments. They contained no provisions for forfeiture or termination even upon failure to pay the consideration and could not be terminated. Avery v. Ry. Co., 113 Mo. 561; Hubbard v. Railroad Co., 63 Mo. 68; Ruddich v. Ry. Co., 116 Mo. 25; Kohnke v. Kohnke, 250 S.W. 53.

Pross T. Cross, R. H. Musser and Gerald Cross for respondent.

OPINION

Gantt, J.

Action to establish a right in plaintiff to maintain electric transmission lines on defendants' land and to enjoin them from interfering with the repair and reconstruction of the lines.

The first count of the petition alleged facts which plaintiff claims established an easement and prayed that defendants be enjoined from interfering with rights under the easement. The second count also alleged said facts and prayed determination of title to an easement. The answer was a general denial with a counterclaim for damages, which was withdrawn by defendants. Judgment for defendants and plaintiff appealed. The facts follow:

The common source of title is Wm. H. Gentry, who died in 1897. He devised the land to his wife for life, with remainder in equal shares to his children, John W. Gentry, Susan Lee Logan, Margaret Elizabeth Gentry (now Margaret Elizabeth Thomas, one of the respondents), and George T. Gentry. In 1913 George T. Gentry was in possession of the land. At that time he executed an instrument (incorrectly describing the land) granting to plaintiff's predecessor, the Kearney Electric Light Company, its successors and assigns, authority to erect and maintain transmission lines on poles or steel towers across the land. The instrument was not acknowledged and recorded. On its execution plaintiff's predecessor erected the transmission lines on the land. In 1924 plaintiff acquired all of the property of the Kearney Electric Light Company. The lines have been maintained on the land since erection. On November 25, 1924, George T. Gentry purchased the John W. Gentry one-fourth interest in the land. About this time George made claim that plaintiff's predecessor had agreed to pay compensation for the right of way and demanded that plaintiff pay said compensation. In November, 1924, plaintiff, assuming that George owned the land, made settlement in writing, the pertinent parts of which follow:

"Witnesseth: That whereas, the party of the second part has now located and is operating and its predecessors for many years have been operating a line of poles and wires consisting of forty-one poles and lines thereon across" (here follows description of land);

"Whereas, party of the first part claims that the predecessors of second party agreed to give him certain compensation for the right of way for said lines. Now, therefore, in order to settle any question as to said compensation and to the right of way for said poles and lines, it is agreed as follows:"

"First party gives, grants and confirms unto second party the right to operate its said transmission lines and maintain the same across the said lands as at present located so long as the same are used as transmission lines."

"Second party agrees that in consideration of the grant of right of way it will furnish to first party electrical service at his present residence located in Kearney, Missouri, and that it will give to first party a credit upon its regular rates for said service of Two Dollars ($ 2.50) and Fifty cents on the bill or charge of each month, but such credits shall not be cumulative."

"It is further agreed that said first party shall be entitled to said credit as long as he is the owner of the land across which said transmission line is maintained and that whenever he...