Missouri Public Service Co. v. Argenbright

• Decision Date: 13 July 1970
• Docket Number: No. 1,No. 54540,54540,1
• Citation: 457 S.W.2d 777
• Parties: MISSOURI PUBLIC SERVICE COMPANY, Appellant, v. Glenn ARGENBRIGHT and Lucille Argenbright (Exceptions of Glenn Argenbright and Lucille Argenbright), Respondents
• Court: Missouri Supreme Court

Page 777

457 S.W.2d 777

MISSOURI PUBLIC SERVICE COMPANY, Appellant, v. Glenn ARGENBRIGHT and Lucille Argenbright (Exceptions of Glenn Argenbright and Lucille Argenbright), Respondents.

No. 54540.

Supreme Court of Missouri, Division No. 1.

July 13, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

Sept. 14, 1970.

Lowell L. Smithson, Howard F. Sachs, Kansas City, Ray L. Shubert, Charles Hight, Harrisonville, for appellant; Spencer, Fane, Britt & Browne, Kansas City, Shubert & Hight, Harrisonville, of counsel.

Elvin S. Douglas, Jr., Robert W. Spangler, Harrisonville, for respondents; Crouch, Crouch, Douglas & Spangler, Harrisonville, of counsel.

THEODORE McMILLIAN, Special Judge.

This is an action brought by Missouri Public Service Company, plaintiff electric utility (Utility) to acquire a transmission line easement, together with the right of access thereto, across certain land lying in Cass County, Missouri, belonging to defendants, Glenn and Lucille Argenbright (the Argenbrights). The jury assessed the Argenbrights' damages at $65,000. Before entering judgment, the court applied a credit of $8,500, representing Utility's earlier payment of the Commissioners' award assessing the landowners' total damages. Utility has appealed. Since Utility's expert testified to damages ranging from $1,600 to $3,700, the amount in controversy is in excess of $15,000; therefore, we have jurisdiction pursuant to Article V, Section 3 of the Constitution of the State of Missouri, V.A.M.S.

Utility claims three errors: Point I that the verdict was excessive and unsupported by substantial evidence in the following respects: (a) it was in excess of Commissioners' award and similar verdicts, (b) it was based upon an erroneous legal construction of access rights treating the same as a 'blanket easement,' (c) it was based on speculation that financing of improvements would be impossible and that destruction of improvements might occur; and (d) it was based on an erroneous suppression of argument that reasonable use by the landowners might be anticipated.

Point II contended that the court erroneously compelled amendment of the petition during trial at the request of the Argenbrights, enlarging the taking by eliminating some restrictions on the use of access rights, thus forcing Utility to acquire and pay for more land than it required.

The final claimed error is Point III, which denied a continuance after permitting an amendment of the petition during trial, when the amendment changed the issues and was the basis for the Argenbrights' largest claim of damages.

Since there is a claim that there was no substantial evidence to support the verdict, a brief re sume of the evidence is set out. Other evidence, of course, will be developed in the course of the opinion, if needed. The Argenbrights are the owners of 160 acres of land which has been used as a farm and which they valued at $160,000 prior to the easement. Their property is located southeast of Belton, about a mile south of Raymore, on the east side of the Raymore-Peculiar blacktop road. A gravel road is along the south side of the farm. Improvements are on the west side of the quarter section near the blacktop road.

Utility condemned an easement for power line purposes over a right-of-way strip 150 feet in width for a distance of 2248 feet across land owned by the Argenbrights. In addition, the Argenbrights claim that Utility condemned rights of ingress and egress to and from the said right-of-way over their entire 160-acre farm. To substantiate the claim, they point to paragraph 8 of Utility's petition:

'8. That plaintiff for itself and its lessees, * * * assigns does not seek, and it is not the purpose of this condemnation proceeding, to appropriate or take a full and complete easement to the extent permitted by Section 523.010 of the Revised Statutes of Missouri of 1959, on, over or under any tract of land herein described, which any defendant or defendants own or have a compensable interest therein, but only an easement and right-of-way, in order to survey, locate, construct, operate, patrol, inspect, maintain, alter, add wires, repair, relocate, rebuild or remove, on, over and under said right-of-way, an electric transmission line and all structures, appurtenances and appliances necessary in connection therewith, together with the right of ingress and egress to and from the right-of-way, the right to keep said right-of-way free and clear of trees, brush, buildings, structures or other obstructions on or adjacent to said right-of-way whenever the same would interfere with or endanger plaintiff's use of said easement, and with the further right to have the privilege of installing gates at appropriate locations where fences are located, or may in the future be located, for the purpose of gaining access to and exit from said right-of-way when exercising its right of ingress and egress, plaintiff (will whenever practicable use existing private roads or lands of the defendant or defendants, and) shall repair any damage caused by its use thereof. Plaintiff further states that in addition to the damages, if any, that may be awarded any defendant or defendants herein, as compensation for the appropriation of said easement, it will also pay damages caused to crops or property, if any, belonging to any defendant or defendants, or in which any defendant or defendants herein have a compensable interest, if such damages result from the exercise of the rights herein sought. The easement and right-of-way herein sought by plaintiff shall not divest any defendant or defendants herein of the right to use and enjoy any tract of land herein described which defendant owns or has a compensable interest therein, provided, however, such use shall not interfere with the uses sought to be made of such land by the plaintiff, and provided further that no building shall be constructed on the easement without written permission from plaintiff.' (Words enclosed in brackets were stricken.)

Defendants' value evidence was placed before the jury by evidence of witnesses Walker and Curd, both qualified brokers familiar with land values in the area. James Curd, a real estate broker from Harrisonville, Missouri, testified that the highest and best use, in describing Argenbrights' lands and improvement, was a small tract subdivision development (5 and 10 acre tracts); that the fair market value of the 160 acre tract immediately prior to the easement being impressed upon the realty was $180,000, and that the 'aftertaking' value on January 19, 1967, was $84,000, causing damages totaling $96,000 by reason of the rights appropriated; that the 'blanket easement' reduced the use of the entire quarter section to agricultural purposes or $350 per acre. His explanation was that the 'blanket easement' goes on the abstract and 'makes it more difficult to obtain financing, almost impossible.'

Vernon Walker, a real estate broker, testifying for the Argenbrights, gave his opinion of the value of the property prior to the taking as $175,000--' after-taking,' as $91,000 with total damages as $84,000. He, too, testified that the 'blanket easement' would make it hard to develop because of the financing situation. Mr. H. G. Bartz, President of Mission Investment Company, a large mortgage banking business in the Kansas City area, testified that his business was to make real estate secured loans that were salable to banks, insurance companies, and investment firms. He further testified that loans on properties for housing construction were not salable on lands on which general easements of ingress and egress over entire tracts had been given, and the land would be adversely affected as to mortgageability for residential financing; that based upon his fourteen years of experience, a loan would not be made by his firm or the industry, upon property subjected to a blanket right and easement over the entire tract and that such loans would not be salable. The Argenbrights also offered purchaser witnesses the price paid for certain tracts considered by the expert-value witnesses to be comparable to the tract in question and located nearby. Briefly summarized, there were: 5 acres, $960 per acre; 25 acres, $800 per acre; 20 acres, $1,000 per acre, etc. All of the tracts were unimproved acreages along road frontages comparable to the Argenbright property.

Glenn Argenbright testified that he obtained the property in 1951, and had used it primarily for farming, that in his opinion the value was $160,000 prior to the easement, and approximately $350 per acre ($56,000) after the easement, for total damages of $104,000.

The Argenbrights' evidence generally was that the area was rapidly becoming one of small tract or acreage residential development; area was 4 miles from the Kansas City corporate limits, 2 miles to the Peculiar--Raymore communities; and all in all a good place to live; that commuters from Kansas City, and other persons desirous of moving out of the metropolitan area, had created a good market for residential development.

To the contrary, for Utility, the testimony by Ronald West, a banker from Warrensburg, was that he had made loans on property with the type of power line easement in this case. Curtis T. Bliss, Kansas City real estate appraiser, testified that in evaluating the Argenbright property after the taking of the easement, he used sales of property with transmission line easements to determine the reduced value, which he fixed at $113,850--$111,900, the damage being $1,950. He also identified an electrict transmission line easement, containing the right of ingress and egress, on property on which Prudential Insurance Company made a loan, and, as director of Federal Saving and Loan Company, he knew of no denial of a loan, based on an easement right of ingress and egress; that about 90% of the loans are for single-family residences, some of which have electric transmission lines with the...