Prairie Pipe Line Company v. Shipp

• Decision Date: 18 December 1924
• Docket Number: 23967
• Citation: 267 S.W. 647,305 Mo. 663
• Parties: PRAIRIE PIPE LINE COMPANY, Appellant, v. BENJAMIN SHIPP et al
• Court: Missouri Supreme Court

267 S.W. 647

305 Mo. 663

PRAIRIE PIPE LINE COMPANY, Appellant, v. BENJAMIN SHIPP et al

No. 23967

Supreme Court of Missouri

December 18, 1924

Motion for Rehearing Overruled December 18, 1924.

Appeal from Randolph Circuit Court; Hon. Allen W. Walker Judge.

Affirmed.

T J. Flannelly, Major J. Lilly and S. J. & G. C Jones for appellant.

(1) The verdict and finding of the jury is grossly excessive, unreasonable, unfair and unjust. Defendants' land is not taken, the possession, use and enjoyment are still retained by defendants. Bray v. Land Const. Co., 203 Mo.App. 644; Met. St. Ry. Co. v. Walsh, 197 Mo. 392; Calor Oil Co. v. Franzell, 36 L. R. A. (N. S.) 456; Postal Telegraph Co. v. Peyton, 3 L. R. A. (N. S.) 333. (2) It was error to admit over plaintiff's objections evidence to the effect that oil might escape from the pipe line. Such evidence was purely speculative. To say that oil might or might not escape from the lines is purely speculation and nothing else, especially so when there is no evidence showing that such is the general tendency. Met. St. Ry. Co. v. Walsh, 197 Mo. 329; Railroad v. Mendonsa, 193 Mo. 518; Railroad v. McGrew, 104 Mo. 282; Mathews v. Railroad, 121 Mo. 298; Chicago & I. C. Railroad Co. v. Hunter, 128 Ind. 213; Elliott on Railroads, secs. 991, 991a, 991b. (3) It was error to overrule plaintiff's objections to testimony offered by defendants relating to the depreciation in the market value of defendants' land on account of the condemnation sought. Said witnesses did not show sufficient knowledge and qualifications to express an opinion in that respect, and the hypothetical questions, if such they may be called, did not embrace and take into consideration all of the elements embraced in the pleadings and in the case. Union Elevator Co. v. Surburban Ry. Co., 135 Mo. 375; Railroad v. Mendonsa, 193 Mo. 523. (4) The instructions broadened the issues and permitted the jury to take into consideration inconveniences and matters of a temporary nature which did not permanently depreciate the market value of defendants' farms. Redding v. Railroad, 165 Mo.App. 130; Craton v. Huntzinger, 163 Mo.App. 718; Maynard v. Railroad, 155 Mo.App. 354; Christian v. Ins. Co., 143 Mo. 469; Bray v. Land Const. Co., 203 Mo.App. 644; Calor Oil Co. v. Franzell, 36 L. R. A. (N. S.) 456. (5) The court erred in refusing instructions requested by the plaintiff properly limiting the inquiry of damages to that part of defendants' farms which were actually affected by the condemnation. Elliott on Railroads, secs. 990, 992; Lexington v. Long, 31 Mo. 369.

Hunter & Chamier and Jerry M. Jeffries for respondents.

(1) The verdict is not excessive. Gibson's farm consists of one hundred forty acres and very valuable land worth, before the easement was taken, at least $ 150 per acre. The easement passes entirely across same, between his residence and the public road. Shipp's farm consists of one hundred eighty acres and is very valuable land, worth, before the easement was taken, at least $ 125 per acre. The easement passes across the farm near the improvements. Shipp's damage was fixed at $ 1000 or $ 5.55 an acre. Gibson's damage was fixed at $ 1400 or ten dollars per acre. Defendants are entitled to recover not only for the value of the land taken, but also for damages to the remainder of their farms. Pratt v. Ry. Co., 130 Mo.App. 175; Railroad v. McGrew, 104 Mo. 282. (a) It is with great reluctance that appellate courts undertake to interfere with verdicts of juries on the grounds of excessiveness in condemnation proceedings. Met. St. Ry. Co. v. Walsh, 197 Mo. 421; Railroad v. Brick Co., 198 Mo. 712. (b) The extent of the easement and use to be made of it and how used is the very essence of the cause for damage. The limitation that plaintiff would pay for any damages to adjacent land by reason of oil escaping, lessened the damages. While the jury were hearing and considering these things it had a right to know all about the use to which the easement was to be put. Mathews v. Railroad, 121 Mo. 298; Railroad v. McGrew, 104 Mo. 282; Railroad v. Donovan, 149 Mo. 93; Railroad v. Shoemaker, 160 Mo. 425. (2) The objections to the hypothetical questions were not sufficient and many of the witnesses testified as to value without any objections being made. Our courts have recognized this manner of proving the damages in condemnation proceedings. Railroad v. Brick Co., 198 Mo. 709; Met. St. Ry. Co. v. Walsh, 197 Mo. 392; Railroad v. Vleiez, 234 Mo. 471. (3) The evidence was that the taking damaged each farm in its entirety, and the measure of damages is the value of the land taken and damage to the remainder of the farm. Ry. Co. v. Carton R. E. Co., 204 Mo. 565; Railroad v. McGrew, 104 Mo. 282. The instructions recited the various items to be considered in assessing the damages and were proper. Railroad v. Brick Co., 198 Mo. 712.

OPINION

Walker, J.

In February 1921, the plaintiff filed a petition in the Circuit Court of Randolph County, under Section 1791, Revised Statutes 1919, for the condemnation of a right of way for a pipe line across and under certain tracts of land in that county, one of which was owned by Benjamin Shipp and wife and the other by L. B. Gibson and wife, who are the defendants herein and own their respective lands by the entirety.

Commissioners were appointed in conformity with the prescribed statutory procedure who assessed nominal damages in favor of the owners of the land. The plaintiff proceeded under this judgment to lay its pipe line. The defendants excepted to the report of the commissioners, and it was set aside, and upon a trial before a jury a verdict was returned in favor of Shipp and wife for $ 1000; and in favor of Gibson and wife for $ 1400. From this judgment an appeal was perfected by the plaintiff to the Kansas City Court of Appeals. Under our ruling in Springfield S.W. Ry. Co. v. Schweitzer, 246 Mo. 122, and Moberly v. Lotter, 266 Mo. 457, this case was transferred to the Supreme Court on the ground that the title to real estate was involved (240 S.W. 473).

The petition is in the conventional form employed in cases of this nature. It asks, inter alia, that a strip of land eight feet in width may be condemned across the lands of the defendants for the purpose of permitting the plaintiff -- a Kansas corporation engaged in the transportation of oil through this State -- to lay a pipe line underneath the surface of the lands for plaintiff's use in its business. The pipe line to be laid in such a manner as to not interfere with defendants' access to or cultivation of the soil or the drainage of the lands or of tracts adjacent thereto, except during such times as the plaintiff may necessarily be engaged in laying, removing or repairing the line. The plaintiff, by its pleading, obligates itself in the event of the condemnation, to afford the defendants access at all times to the lands and their right to the use of the same as parts of their respective farms, in the same manner and to the same extent as if said line had not been laid subject to the right of entry for the purposes stated. Plaintiff further obligates itself to pay defendants any damages to the lands by reason of the installing or the repairing of said line by plaintiff; or for any damages that may subsequently be done to growing crops on the right of way from time to time, or by the laying of additional pipe lines or the repairing of those laid, or by the escape of oil upon the right of way or upon adjacent lands.

The pipe line laid across the Shipp farm is 1277 feet long, eight feet wide and embraces an area of .235 acres; the line across the Gibson farm is 2221 feet long, eight feet wide and embraces an area of .408 acres. The estimated value of the Shipp land, which consists of one hundred eighty acres, before the installation of the pipe line, was from $ 110 to $ 115 per acre. After the installation of the pipe line the land was estimated to be worth from $ 75 to $ 80 per acre. The estimated value of the Gibson land, which consists of one hundred forty acres, prior to the installation of the pipe line was from $ 140 to $ 150 per acre. After the installation of the pipe line the land was estimated to be worth $ 125 per acre.

There was testimony that the laying of the pipe line caused ridges in the land, rendering the cultivation of same difficult; that where disturbed the land is "killed" or rendered unproductive for a year or two thereafter; that the cultivation of the land would be subject to further interference if leaks in the pipe occurred; that such an occurrence happened in another line laid earlier under these tracts and not only prevented cultivation while the repairs were in progress, but that the escaped oil destroyed the productive character of the soil with which it came in contact and rendered its cultivation useless. Furthermore it was shown that where a pipe line of the character at bar is laid during wet weather damage is done to the cultivable character of the soil; also that the frequent patrolling of the line by plaintiff shown to have been necessary, and the making of repairs thereon when required, interfere with the unobstructed use of same by the owners, to their detriment.

I. By their conduct the parties concede the validity of the statute (Art. 11, chap. 13, R. S. 1919) upon which this proceeding is based in so far as it authorizes private corporations to condemn land for the laying of pipe lines and the transportation therein of crude petroleum through this State. [Smith v. Glynn, 177 S.W. 850 and cases; State ex rel. v. McQuillin, 246 Mo. l. c. 592; Burns v. Ins. Co., 295 Mo. l. c. 694; State ex rel. Home Savings Ins. Co. v. Lee, 288 Mo. l. c. 707.] This concession eliminates from consideration in this case what...