Shelton v. M & A Elec. Power Co-op., No. 8891

CourtMissouri Court of Appeals
Writing for the CourtSTONE; TITUS, P.J., and HOGAN
Citation451 S.W.2d 375
Decision Date29 January 1970
Docket NumberNo. 8891
PartiesClay C. SHELTON and Ruby M. Shelton, his wife, Plaintiffs-Respondents, v. M & A ELECTRIC POWER COOPERATIVE, a corporation, Defendant-Appellant.

Page 375

451 S.W.2d 375
Clay C. SHELTON and Ruby M. Shelton, his wife, Plaintiffs-Respondents,
v.
M & A ELECTRIC POWER COOPERATIVE, a corporation, Defendant-Appellant.
No. 8891.
Springfield Court of Appeals, Missouri.
Jan. 29, 1970.
Motion for Rehearing Denied Feb. 13, 1970.
Application to Transfer Denied April 13, 1970.

Page 376

Dalton, Treasure & Bullard, Kennett, for defendant-appellant.

Ward & Reeves, James E. Reeves, Caruthersville, for plaintiffs-respondents.

STONE, Judge.

On the theory of inverse condemnation, plaintiffs Clay C. Shelton and Ruby M. Shelton, his wife, instituted this action at law on August 3, 1967, against defendant M & A Electric Power Cooperative, a corporation, by the filing of their petition for damages allegedly sustained by reason of defendant's 'conversion and appropriation' in 1961 of 'a power line easement and right-of-way' across plaintiffs' 60-acre farm about 14 miles north of Kennett in Dunklin County, Missouri, and the construction and maintenance of an electric transmission line over and along that right-of-way. In its answer, defendant pleaded an easement indenture executed by plaintiffs on August 11, 1960, and recorded in Dunklin County. By way of reply, plaintiffs admitted execution of that easement indenture but averred that it was 'null and void and of no defense to plaintiffs' petition' because (a) it was without consideration, (b) there was a failure of consideration, and (c) the indenture was procured by fraud and misrepresentation. 'In the alternative,' plaintiffs asserted that, even if the easement indenture was valid, it authorized recovery of the damages sought in plaintiffs' petition. When the case came on for trial, defendant stood on its motion for a directed verdict at the close of plaintiffs' case, and the jury returned a verdict of $1,250 upon which judgment was entered. Defendant appeals.

During 1960, a representative of defendant contacted plaintiff Clay, the postmaster at Clarkton, Missouri, on several occasions concerning an easement for an electric transmission line along the north line of plaintiffs' farm, a distance of about one-half mile. According to plaintiff Clay, defendant's representative stated that plaintiffs would be paid for 'all the poles that were erected there' and for 'any damage incurred on the farm in any way,' but no representation was made as to, and plaintiffs did not know, how many poles would be erected or what damage might result. These conversations, with plaintiff Ruby also present, terminated in and were merged into a written easement indenture captioned 'Right-of-Way Easement' admittedly executed and delivered by plaintiffs to defendant on August 11, 1960.

The here material provisions of the easement indenture are that plaintiffs 'do hereby grant' unto defendant, its successors or assigns, 'the perpetual right to enter upon' plaintiffs' 60-acre farm as described and 'to construct, reconstruct, repair, operate and maintain' thereon an electric transmission line or system and 'to cut and trim trees and shrubbery . . . located within 50 feet of the center line of said line or system . . .. The Cooperative (defendant) agrees to pay to the undersigned (plaintiffs) for the privileges herein granted, when the line or system has been completely constructed, for poles and

Page 377

anchors located within the boundaries of the above-described lands (plaintiffs' 60-acre farm) as follows: $25.00 per pole in cultivated land. $25.00 per anchor in cultivated land. $10.00 per pole in uncultivated land. $10 per anchor in uncultivated land. . . . The Cooperative (defendant) agrees to pay to the grantors herein (plaintiffs) any reasonable damage to said grantors' real property (exclusive of damages to timber thereon), to crops growing thereon, and to livestock, caused by the construction, operation or maintenance of said lines.'

The contemplated electric transmission line was constructed by defendant during the summer of 1961. Thereafter, to wit, 'about a year or more' after plaintiffs had executed the easement indenture on August 11, 1960, a representative of defendant called on plaintiff Clay and said that he had come 'to settle with me (plaintiff) and pay me for the easement.' The gist of plaintiff Clay's account of the ensuing conversation was that defendant's representative offered to pay the sum stipulated in the easement indenture for two poles but refused to 'allow' anything for alleged damage to fences, while plaintiff Clay insisted that he should be paid for seven poles and for alleged damage to fences and crops during the construction period. According to plaintiff Clay, he said 'if that's all you're going to pay me for, just two poles, I'll take nothing,' and defendant's representative concluded the conversation by responding 'you'll get nothing.'

On cross-examination, plaintiff Clay readily conceded that he had not located or determined the north boundary line of the 60-acre farm by survey, but opined that 'the property line is in the vicinity of this fence row, approximately where the fence row is, and the poles are in the fence row.' The pictorial exhibits portray a dense fence row several feet wide (plaintiff Clay expressly disclaimed any knowledge as to the width of the fence row) and likewise several feet high, a veritable thicket of shrubs, bushes and gross vegetation. There is also a woven wire fence, about one-half mile in length, along the entire north line of plaintiffs' farm. But in the seven photographs of the fence row and defendant's transmission line, the woven wire fence is not visible and we are able to discern only what may be the tips of two posts. In short, there was no evidence fixing the location of the north boundary line of plaintiffs' farm or the location of any pole or poles in defendant's transmission line with reference to that boundary line, and the record would not have permitted a finding as to the number of poles actually set on plaintiffs' farm.

Plaintiffs have never cultivated or resided on this 60-acre tract and, during their period of ownership, a tenant had stock on the farm 'a part of the time' and raised some crops on it. When defendant's transmission line was being constructed, crops were 'up and growing'--plaintiff Clay recalled 'the corn and also some cotton, and...

To continue reading

Request your trial
15 practice notes
  • US v. Conservation Chemical Co., No. 82-0983-CV-W-5.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • April 28, 1987
    ...consideration for a contract. Jump v. Manchester Data Sciences Corp., 424 F.Supp. 442 (E.D.Mo. 1976); Shelton v. M & A Elec. Power Coop., 451 S.W.2d 375 (Mo.App.1970). The Original Generator Defendants' performance is subject to conditions. Paragraph 1 of the Preliminary Agreement 1. The or......
  • Macalco, Inc. v. Gulf Ins. Co., Nos. 9701
    • United States
    • Missouri Court of Appeals
    • April 11, 1977
    ...(Mo.1964); Stevens v. Missouri Pacific R.R. Co., 355 S.W.2d 122, 127(1) (Mo.1962); Shelton v. M & A Electric Power Cooperative, 451 S.W.2d 375, 380(8) (Mo.App.1970). In addition, the denial letter did "reserve . . . all other grounds for a coverage denial which may now or later appear." Suc......
  • State ex rel. Sageser v. Ledbetter, No. 10113
    • United States
    • Court of Appeal of Missouri (US)
    • October 31, 1977
    ...36, 38 (Mo.App.1972); Ratterree v. General Motors Corporation, 460 S.W.2d 309, 315 (Mo.App.1970); Shelton v. M & A Electric Cooperative, 451 S.W.2d 375, 380 (Mo.App.1970). See McCaffrey v. Estate of Brennan, 533 S.W.2d 264, 266 (Mo.App.1976). "Sufficient unto the day is the evil thereof." M......
  • Harris v. Missouri Dept. of Conservation, No. WD
    • United States
    • Missouri Court of Appeals
    • August 16, 1988
    ...because of mootness. This court disagrees. Unlike the case relied on by the commission, Shelton v. M & A Electric Power Cooperative, 451 S.W.2d 375 (Mo.App.1970), no agreement existed between the parties at the time of the designation, when the taking, if any, occurred. The Shelton court's ......
  • Request a trial to view additional results
15 cases
  • US v. Conservation Chemical Co., No. 82-0983-CV-W-5.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • April 28, 1987
    ...consideration for a contract. Jump v. Manchester Data Sciences Corp., 424 F.Supp. 442 (E.D.Mo. 1976); Shelton v. M & A Elec. Power Coop., 451 S.W.2d 375 (Mo.App.1970). The Original Generator Defendants' performance is subject to conditions. Paragraph 1 of the Preliminary Agreement 1. The or......
  • Macalco, Inc. v. Gulf Ins. Co., Nos. 9701
    • United States
    • Missouri Court of Appeals
    • April 11, 1977
    ...(Mo.1964); Stevens v. Missouri Pacific R.R. Co., 355 S.W.2d 122, 127(1) (Mo.1962); Shelton v. M & A Electric Power Cooperative, 451 S.W.2d 375, 380(8) (Mo.App.1970). In addition, the denial letter did "reserve . . . all other grounds for a coverage denial which may now or later appear." Suc......
  • State ex rel. Sageser v. Ledbetter, No. 10113
    • United States
    • Court of Appeal of Missouri (US)
    • October 31, 1977
    ...36, 38 (Mo.App.1972); Ratterree v. General Motors Corporation, 460 S.W.2d 309, 315 (Mo.App.1970); Shelton v. M & A Electric Cooperative, 451 S.W.2d 375, 380 (Mo.App.1970). See McCaffrey v. Estate of Brennan, 533 S.W.2d 264, 266 (Mo.App.1976). "Sufficient unto the day is the evil thereof." M......
  • Harris v. Missouri Dept. of Conservation, No. WD
    • United States
    • Missouri Court of Appeals
    • August 16, 1988
    ...because of mootness. This court disagrees. Unlike the case relied on by the commission, Shelton v. M & A Electric Power Cooperative, 451 S.W.2d 375 (Mo.App.1970), no agreement existed between the parties at the time of the designation, when the taking, if any, occurred. The Shelton court's ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT