Southwestern Bell Tel. Co. v. Jennemann

• Citation: 407 S.W.2d 85
• Decision Date: 20 September 1966
• Docket Number: No. 32129,32129
• Parties: SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, (Plaintiff) Appellant, v. Annie P. JENNEMANN, (Defendant) Respondent.
• Court: Missouri Court of Appeals

Page 85

407 S.W.2d 85

SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation (Plaintiff) Appellant, v. Annie P. JENNEMANN, (Defendant) Respondent.

No. 32129.

St. Louis Court of Appeals, Missouri.

Sept. 20, 1966.

Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, John Mohler, Leo E. Eickhoff, Jr., St. Louis, and Michael Grove, St. Louis, for plaintiff-appellant.

Earl R. Blackwell, Hillsboro, for defendant-respondent.

RUDDY, Judge.

This is a condemnation action by plaintiff, Southwestern Bell Telephone Company, a corporation, to acquire and appropriate a right-of-way and easement across the land owned by defendant. Plaintiff and defendant filed exceptions to the award of the Commissioners and upon a jury trial defendant was awarded the sum of $4,000.00. Plaintiff appealed from the ensuing judgment.

The easement acquired in this condemnation action was a right-of-way to construct, operate, maintain, inspect, replace and remove an underground communications system consisting of underground cables, wires, conduits, surface testing terminals, markers and other necessary appurtenances upon, over and under a strip of land one rod (16 1/2 feet) in width across the land of the defendant. In connection therewith plaintiff acquired (a) the right of ingress and egress across the land of defendant by reasonable routes to and from said right-of-way; (b) the right to place such surface markers and surface testing terminals as may be necessary on said strip; (c) the right to clear and keep cleared all trees, roots, brush and other obstructions from the surface and sub-surface of said strip as may be necessary for the construction, operation and maintenance of said communications system; and (d) the right to install temporary gates in fences crossing said strip, which fences shall be repaired and restored to their former condition following construction. Plaintiff agreed to pay defendant for all damage caused to defendant's property during the construction, operation and maintenance of said communications system.

The following rights were reserved to the defendant: the right to freely use and enjoy the right-of-way insofar as the exercise thereof does not endanger or interfere with the construction, operation and maintenance of said communications system or create a hazard thereto; the right to cultivate and grow crops, and; the right to establish roadways and utility lines across said easement, except that no building or structure shall be erected within the easement and right-of-way without the written consent of the plaintiff.

During the trial a controversy arose between counsel as to whether or not the rights reserved to defendant, alleged in plaintiff's petition, permitted filling of dirt over the easement area. In order to settle this controversy plaintiff obtained permission from the court to amend its petition and did amend the petition by giving the defendant the right, '* * * 'to raise the grade of the easement area by filling,' * * *.'

The tract of land involved is rectangular in shape and contains about twenty acres. As noted, the easement acquired is 16 1/2 feet in width and extends along the western boundary of defendant's tract a distance of 794.1 feet. State Highway 1--55 adjoins the western boundary. The easement area involved contains 3/10 of an acre. The tract contained an old farm home and some corn cribs. These structures were of little value. Water and electricity is available to the tract. The land was described as rolling and generally sloping. Defendant's witnesses said the land was best suited for a residential subdivision and said there were many such subdivisions in the area. If the land is developed into commercial or residential use in the future, plaintiff's crews and equipment will have to traverse some of the developed property to reach the easement, if repairs to the cable are necessary, because access to the easement from Highway 1--55 will be barred by a high fence to be erected by the State Highway Department on the boundary between defendant's property and Highway 1--55.

Irvin Brouk testified on behalf of defendant as to damages sustained by reason of the creation of the easement on the tract involved. He gave it as his opinion that the 20 acres were worth $100,000.00 before the acquisition of the easement. He then gave the following testimony in his direct examination:

'Q. Tell us what, in your opinion, the value of that property was after Southwestern Bell buried their cable in there?

'A. Well, they, to my estimation, damaged two acres of ground.

'Mr. Richeson: (Attorney for plaintiff) I object to his estimation, Your Honor, there's no proof of any damage to two acres.

'A. I'd say it was worth only $90,000.00.

'Mr. Blackwell: Now wait.

'The Court: Now I think I'd leave off about what he damaged, just give the value of it, as you figure it, after the taking.

'A. About $9,000.00, after they went through the twenty acres.'

In his cross examination he was asked:

'If you build a high fence along the east side of the easement all you'd do is take three-tenths of an acre away from the Jennemann property, wouldn't it?

'A. I don't think so.

'Q. You don't think so?

'A. No.'

During this witness's cross examination he was also asked:

'Q. How much an acre do you say it is after the easement?

'A. Well, I didn't figure it out in acreage but I figured the whole tract with the hold in it with that ditch, that it had disvalued two acres and knocked the total value down to $90,000.00.'

At the conclusion of plaintiff's testimony, Mr. Richeson, Attorney for plaintiff, requested the court to, '* * * strike all evidence offered on the part of defendant, with respect to what might be termed severance damages, or damages to the remainder of defendant's tract other than the easement area, for the reason that there is no support in the pleadings or any evidence of damage to the remainder of plaintiff's area, by reason of the taking of the easement, and there is not evidence to support any assumption of damage by any witness to the remainder of defendant's tract by reason, * * *.' 'The Court: I don't recall any evidence.' 'Mr. Richeson: Some of them attempted to say that they were basing it on the assumption of damage to two acres.' 'The Court: I think though that was straightened out before they got off the stand.' Later in the same colloquy, the Court told counsel for plaintiff that he thought the matter was straightened out and added, '* * * I'm afraid to do any instructing on that.' Mr. Richeson then said, 'All right.'

Plaintiff now contends that the trial Court erred in permitting this witness to testify as to damages to two acres of defendant's land, and in refusing to strike such testimony on plaintiff's motion. While it was undisputed that the easement area contained only three-tenths of an acre, witness Brouk seemed to think it contained two acres. However, it will be remembered that the witness was asked to give his opinion as to the value of the twenty acres before and after the easement was acquired, and after the Court suggested that he leave off the estimation of damage to the two acres of ground, he gave the value of the twenty acres after the taking at $90,000.00. On cross examination the witness attempted to clarify this by stating that the laying of the cable had, '* * * disvalued two acres and knocked the total value down to $90,000.00.' Obviously, by 'total value,' he meant the value of the twenty acre tract.

It seems clear to us that the witness thought the easement area consisted of two acres and his testimony can be reasonably construed to mean that the acquisition of the easement area, whether it consisted of three-tenths of an acre or two acres, 'disvalued,' as he described it, the whole tract $10,000.00. He made this clear in this cross-examination when he said, 'I didn't figure it out in acreage but I figured the whole tract * * * that ditch, * * * knocked the total value down to $90,000.00.' He gave this value after the Court told the witness to, 'leave off about' the damages to two acres and to give the value of the twenty acre tract 'after taking.' We do not think it correct to charge that the witness was permitted to testify as to damages to two acres. We think, as the Court pointed out, if there was any confusion about damages, which confusion we fail to find, it was 'straightened out' by the Court before the witness got off the stand. We find no merit in plaintiff's contention.

In the next point relied on by plaintiff it charges the trial court, '* * * erred in permitting defendant's counsel to argue to the jury damages occurring subsequent to the taking, and that plaintiff was not required to pay subsequent damages incurred in making repairs, to defendant's successors in title; and in failing to take effective action to cure the prejudice.'

Before discussing this point we refer to a paragraph contained in Plaintiff's Instruction No. 2, wherein the jury was told, 'Plaintiff must pay the defendant for all damage caused to her property by plaintiff, its agents, contractors, and employees, during the construction, operation and maintenance of said communication system, so that this damage, if any, shall not be considered by you in arriving at your verdict.' (Emphasis ours.)

In the course of the argument of defendant's counsel to the jury he stressed the right of plaintiff to cross over defendant's property to make repairs with whatever equipment was necessary, no matter how heavy, and the consequent effect this right would have on the value of the tract. He then said if plaintiff chose to, '* * * they could come right square across their front yard or their back yard, through the fences, I don't mean they'd come in there and tear down the fences, I don't mean that.' Thereafter, plaintiff's counsel interposed the following objection: 'Now, wait just a minute, Senator, I know you didn't mean it, but I want to object to it. The petition, pleadings and...