Missouri Public Service Co. v. Durham, 22816

• Decision Date: 29 June 1959
• Docket Number: No. 22816,22816
• Parties: MISSOURI PUBLIC SERVICE COMPANY, a Corporation, Appellant, v. Robert B. DURHAM, Respondent.
• Court: Missouri Court of Appeals

Page 807

325 S.W.2d 807

MISSOURI PUBLIC SERVICE COMPANY, a Corporation, Appellant, v. Robert B. DURHAM, Respondent.

No. 22816.

Kansas City Court of Appeals, Missouri.

June 29, 1959.

Alan F. Wherritt, William J. Turpin, Liberty, for appellant.

William B. Waters, Francis G. Hale, Robert E. Coleberd, Liberty, for respondent.

PER CURIAM.

Plaintiff, Missouri Public Service Company, a corporation, instituted condemnation proceedings against defendant, Robert B. Durham, seeking a perpetual easement for the erection and maintenance of an electric power line across his lands. A jury trial resulted in a verdict and judgment in favor of defendant in the amount of $6,500. Plaintiff appeals.

Plaintiff, by its petition, sought a right of way easement across defendant's lands, 100 feet wide from north to south and 2,626 feet in length. It alleged that it sought same 'for the limited use and purposes of constructing, maintaining and operating said electric transmission line, the right of ingress and egress for its employees and agents from the ends and over said right of way strip, and also a right to go over land adjoining said right of way strip when necessary to gain access thereto for the purpose of exercising this easement, the right to keep said strip free and clear of trees, brush or other obstructions that would interfere with plaintiff's exercise of said limited easement, and the right to locate and maintain proper gates at any point along the right of way where fences may cross the same, * * * provided, however, that plaintiff will not at any time cause said right of way strip to be enclosed by fence, * * *.' (Emphasis ours.)

Plaintiff assigns as error the giving of Instruction 1, the second and third paragraphs of which are as follows:

'In this connection, you are instructed that the plaintiff, Missouri Public Service Company, by this proceeding acquires a perpetual easement 100 feet in width and 2626 feet in length across defendant's 120 acres of land mentioned in evidence for the purpose of constructing, locating, maintaining and operating a high tension electric transmission line, together with the right of ingress and egress for its employees and agents from the ends and over said right of way strip and also a right to go over land adjoining said right of way strip when necessary to gain access thereto for the purpose of exercising said easement; that said company acquires also the right to keep said right of way free and clear of trees, brush and other obstructions that would interfere with its exercise of said easement, and also the right to locate and maintain gates at any point along said right of way strip where fences cross the same and where fences may in the future cross said right of way, but defendant shall have no right to fence or enclose said right of way strip. (Emphasis ours.)

'It is your province to determine from the evidence the amount of damages resulting to defendant Durham from the appropriation by plaintiff of said easement on said defendant's land. And in determining such damage you may assume that plaintiff company will at all times exercise each and all of the easement rights which it has acquired in said land.'

It is apparent the use of the word 'defendant' instead of the word 'plaintiff', viz.: 'But defendant shall have no right to fence or enclose said right of way strip', in the second paragraph of this instruction was a clerical error. This is the only paragraph in the instruction that details and enumerates the rights the plaintiff acquired in this proceeding. This paragraph clearly shows that the word 'plaintiff' was meant instead of the word 'defendant'. It reads: 'you are instructed that the plaintiff, Missouri Public Service Company,' by this proceeding acquires: (1) a perpetual easement 100 feet in width and 2,626 in length across defendant's 120 acres of land; (2) the right of ingress and egress for its employees and agents from the ends over the right of way strip; (3) a right to go over lands adjoining said right of way strip when necessary; (4) the right to keep said right of way free and clear of trees and brush and other obstructions; (5) the right to locate and maintain gates at any point along said right of way strip where fences cross the same. '* * * but defendant (plaintiff) shall have no right to fence or enclose said right of way strip.'

Furthermore, plaintiff's counsel, in cross examining defendant Durham, read to him in the presence of the jury 'the rights which this company gets' under paragraph 6 of plaintiff's petition, as follows:

'Q. Mr. Durham, you have testified as to the damage you think has been done, and I want to read to you the rights which this company gets under this proceeding so that I may interrogate you about what you took into consideration, so I'm going to read paragraph 6 of the...