Shell Pipe Line Corp. v. Woolfolk

• Decision Date: 22 October 1932
• Docket Number: No. 29682.,29682.
• Parties: SHELL PIPE LINE CORPORATION, Appellant, v. ALICE V. WOOLFOLK and JOHN L. WOOLFOLK.
• Court: Missouri Supreme Court

53 S.W.2d 917

SHELL PIPE LINE CORPORATION, Appellant, v. ALICE V. WOOLFOLK and JOHN L. WOOLFOLK.

No. 29682.

Supreme Court of Missouri, Division One.

October 22, 1932.^*

Appeal from Circuit Court of St. Louis County. — Hon. Jerry Mulloy, Judge.

AFFIRMED.

Thompson, Mitchell, Thompson & Young and C.P. Berry for appellant.

(1) The trial court erred in excluding evidence offered by plaintiff that the latter does not fence its right of ways and would not fence the right of way across defendants' land, because this testimony would have tended to reduce the damages to defendants' land. Cape Girardeau v. Hunze, 314 Mo. 438; St. Louis, etc., Railroad Co. v. Clark, 121 Mo. 169; Railroad v. Fletcher, 128 Ill. 626; Prairie Pipe Line Co. v. Shipp, 305 Mo. 679; Belcher Sugar Refining Co. v. Elevator Co., 82 Mo. 125; Kellogg v. Malin, 50 Mo. 496. (2) The trial court erred in giving Instruction 1 because said instrument excludes from the jury's consideration the fact that defendants can make all uses of the land covered by the right of way which do not interfere with the exercise by plaintiff of its right to the use of said right of way for its pipe line, because the plaintiff was entitled under the law to have the jury so instructed. Prairie Pipe Line Co. v. Shipp, 305 Mo. 663; St. Louis, etc., Railroad Co. v. Clark, 121 Mo. 169; 20 C.J. 766, sec. 227. (3) The trial court erred in giving Instruction 2 because this instrument authorized the jury to consider damage to land, when there was no testimony tending to show that such land was damaged, and the only testimony regarding said land was that it was not damaged. Degonia v. Railroad Co., 224 Mo. 564. (4) The trial court erred in refusing to give the instruction requested by plaintiff because said instrument correctly stated the law and contended the omission complained of under point 2 hereof to the effect that the value of the twenty-foot strip of land taken for the right of way should be minimized in ascertaining the damage based upon the market value of said strip by the fact that defendants may use the surface of said twenty-foot strip in any manner that will not conflict with its use for pipe-line purposes. See authorities cited under our point No. 2 (5) The damages found by the jury are excessive. See authorities cited under our points Nos. 1 and 2 hereof.

Walter Wehrle for respondent.

(1) The statute under which this proceeding is authorized does not reserve to the property owner any right to use the twenty-foot strip of ground condemned by the condemnor. Sec. 1340, R.S. 1929. (2) Where the condemning party desires to reserve to the landowner the right to use the surface of the land for easement purposes, or for a right of way, and where such easement or right of way is not reserved to the landowner by the statute, then a reservation should be set out in the petition filed by the condemnor. 20 C.J. 957, note 96; St. Louis etc., Railroad Co. v. Knapp, 160 Mo. 396; St. Louis etc., Railroad Co. v. St. Louis Union Stock Yards, 120 Mo. 541. (3) The instructions numbered 1 and 2 correctly stated the law applicable to the case. Met. Street Ry. Co. v. Walsh, 197 Mo. 392. (4) The giving of the instructions offered by the plaintiff was unnecessary because the instructions offered by the defendants and given to the jury by the court clearly covered the law in the case. Met. Street Ry. Co. v. Walsh, 197 Mo. 392. (5) Appellant failed to establish or prove by evidence that it would be binding on the appellant that the use sought to be appropriated would be a restricted or limited use, and one which would still reserve to the landowner some right in the property affected. The landowner cannot be compelled to accept a mere offer by the appropriator to allow him certain rights and privileges or to do something in his favor in payment or reduction of compensation. 20 C.J. 768, note 66; St. Louis etc., Railroad Co. v. Continental Brick Co., 198 Mo. 698; Chicago Railroad Co. v. McGrew, 104 Mo. 282. (6) The probability that the appropriator would not exercise, or the fact that there is no present intention of exercising to the full extent, the rights acquired should not be considered in reduction of the damages where there is nothing to prevent a full exercise of such rights. 20 C.J. 768, note 67; St. Louis etc., Railroad Co. v. St. Louis Stock Yards, 120 Mo. 541.

ATWOOD, J.

This is a proceeding commenced in the Circuit Court of St. Louis County by the Shell Pipe Line Corporation, a common carrier for the transportation of oil, and petroleum and its products, by means of pipe lines, to condemn a right of way for "additional pipe line or lines" twenty feet in width and extending for a total distance of 4055 feet on land belonging to Alice V. Woolfolk and John L. Woolfolk, her husband, and consisting of about 331 acres situated on both sides of the St. Charles Rock Road, now U.S. Highway 40 three or four miles west of the city of St. Louis. The parties stipulated for the appointment of commissioners by the court to assess the damages to defendants' land by reason of this condemnation proceeding. Commissioners were accordingly appointed who subsequently filed their report in which defendants' damages were shown assessed at the sum of $24,900. Plaintiff filed exceptions thereto which were sustained, and trial by jury was demanded, allowed and had. The jury's verdict was for defendants in the sum of $30,000. Judgment was entered in accordance therewith and from this judgment plaintiff has appealed.

[1] The first point urged by appellant is that the trial court "erred in excluding evidence offered by plaintiff that the latter does not fence its right of ways and would not fence the right of way across defendants' land, because this testimony would have tended to reduce the damages to defendants' land."

We find only two references in the record to the matter of fencing or not fencing the right of way. In the course of his examination of plaintiff's vice-president and general manager, counsel for plaintiff, after directing attention to defendants' plat of the Woolfolk property, asked him "whether or not the company will fence that right of way?" The trial court sustained objection of defendants' counsel thereto, counsel for plaintiff excepting and saving exception. Later in the examination of the same witness counsel for plaintiff inquired whether any of plaintiff's right of way from McCamey, Texas to East Chicago Indiana, was fenced. This inquiry was objected to by defendants' counsel as not material. Plaintiff's counsel then said: "I think we should be permitted to go into this to get it into the record, so that we would be bound by the testimony; this right of way which crosses Mr. Woolfolk's property will not be fenced." The objection was sustained, counsel for plaintiff excepting and saving exception.

In arguing the above point counsel for appellant do not contend that the rights that may be acquired by an oil pipe line corporation as the condemning party under the statute which authorizes this proceeding (Sec. 1340, R.S. 1929) do not include the right to fence the right of way condemned. Nor do they claim that plaintiff's petition in this case contained any reservation to the landowner not contained in the statute itself, or any limitation upon the full rights available under this statute to the condemning party in the land sought to be condemned. Their argument is that it was proper without such pleading, for the purpose of minimizing the full damages that might be awarded defendants for all rights available to condemning party under the statute, to inquire of this witness whether or not plaintiff's use of the proposed right of way would be so limited.

Section 1342, Revised Statutes 1929, provides that after the commissioners have assessed damages against the condemning company and filed their report with the clerk of the court in which the proceeding is pending "such company shall pay to the said clerk the amount thus assessed, for the party in whose favor such damages have been assessed; and on making such payment it shall be lawful for such company to hold the interest in the property so appropriated for the uses aforesaid." Section 1344, Revised Statutes 1929 provides for review of said report upon exceptions filed, order for new appraisement for good cause shown by a jury if requested by either party, "and any subsequent proceedings shall only affect the amount of compensation to be allowed."

The well-established doctrine in this State is that the condemning party may appropriate less than the full rights available under the statute, and the fact that the use is so limited is a proper matter for consideration in fixing the amount of damages to be allowed. [Ry. Co. v. Clark, 121 Mo. 169, 194, 25 S.W. 192, 196; City of Cape Girardeau v. Hunze, 314 Mo. 438, 462, 284 S.W. 471; 20 C.J. pp. 766, 767, notes 63, 64.] But, as said in 20 Corpus Juris, pages 768, 769, notes 67, 68 citing, St. Louis, etc., Railroad Co. v. St. Louis Union Stock Yards Co., 120 Mo. 541, 25 S.W. 399, and cases in other jurisdictions:

"The probability that the appropriator will not exercise, or the fact that there is no present intention of exercising, to the full extent the rights acquired should not be considered in reduction of the damages, where there is nothing to prevent a full exercise of such rights, since the presumption is that the appropriator will exercise his rights and use and enjoy the property taken to the full extent."

And our decisions hold that the condemning party's purpose to exercise less than the full rights available under the statute should appear with reasonable certainty in the petition or be brought in by way of amendment thereto. [Ry. Co. v. Clark, 121 Mo. 169, 194, 200, 25 S.W. 192, 196; Ry. Co. v. Knapp, Stout & Co., 160 Mo. 396, 407, 61 S.W. 300; 20 C.J. 957, n. 96.]

Counsel for plaintiff evidently proceeded on the theory that without pleading any limitation...