State ex rel. Kansas City Power & Light Co. v. Campbell
| Decision Date | 07 June 1968 |
| Docket Number | No. 24808,No. 4,4,24808 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri ex rel. KANSAS CITY POWER & LIGHT COMPANY, Plaintiff-Appellant, v. Ruby CAMPBELL et al., (Exceptions of Ward Taylor, et al., and Exceptions of Kansas City Power & Light Company as to Tract), defendants-Respondents. |
Irvin Fane, Lowell L. Smithson, Stephen E. Brawner, Spencer, Fane, Britt & Browne, Kansas City, for plaintiff-appellant.
John G. Madden, Jr., Donald E. Willson, Madden, Willson & Winger, Kansas City, for defendants-respondents.
This is a proceeding in eminent domain whereby plaintiff has acquired a strip of land 100 feet wide upon and along the 60 acre tract owned by defendants, Ward Taylor and Eula V. Taylor, as a right-of-way easement for purposes of constructing and maintaining an electric power transmission line. Court appointed commissioners assessed defendants' damages at $5,500.00 and plaintiff and defendants both filed exceptions. Trial in circuit court resulted in a jury verdict and judgment awarding defendants $10,500.00. Plaintiff has appealed.
The Taylor tract is located within the southern urban fringe of Kansas City, about one-half mile south and one-half mile east of Martin City and one mile west of Grandview. Buildings on it included a 'very nice home', a tenant house which rented for $80.00--$85.00 per month, a barn and other outbuildings. At the time of the taking the subject tract was used for agricultural purposes. The right-of-way easement runs diagonally across the entire width of the tract and occupies a total of 3.5 acres. Upon and along the easement plaintiff has constructed a 161 KV electric transmission line consisting of two H frame structures, each consisting of two poles approximately 14 1/2 feet apart, braced with cross pieces, upon which have been installed crossarms, wires, conducts and other necessary electric apparatus. Under terms of the easement, the owners retained the right to use the land occupied by the easement, provided such use would not interfere with the transmission lines, but they were not permitted to erect or maintain any permanent structures thereon.
Witnesses on behalf of defendant testified that defendants sustained damages in amounts ranging from $10,100.00 to $30,000.00. Estimates of defendants' damages as stated by plaintiff's witnesses ranged from $2,700.00 to $3,150.00. According to the evidence the subject and surrounding property is in a stage of transition to residential development use.
Plaintiff's first appeal point charges the trial court with prejudicial error in giving Instruction No. 2, a combined verdict directing and measure of damage instruction reading as follows:
'You must award Defendants Ward Taylor and Eula V. Taylor such sum as you believe was the difference between the fair market value of Defendants' whole property immediately before the taking on the 29th day of May, 1964 and the value of Defendants' remaining property immediately after such taking, which difference in value is the direct result of the taking and of the uses which 'Plaintiff has the right to make of the property taken.
MAI 9.02 (Modified)
Offered by Defendants'
Instruction No. 2 has been adapted from the appropriate Missouri Approved Instruction, to-wit: MAI 9.02, 'Damages--Eminent Domain--Part of Property Taken.' The pattern form was followed to the letter except for the identification of defendants by their individual names.
Plaintiff's first challenge of Instruction No. 2 is in substance a contention that it should have employed the word 'rights' instead of the word 'property' in referring to the easement as the property interest appropriated. Plaintiff theorizes that the instruction as given 'compelled the jury to consider that the property within the subject easement strip was gone or in essence taken in fee' and 'in effect directed the jury to ignore that any market value was left in the subject easement strip after the taking.' This theory is founded on the MAI Committee's Comment in Notes on Use following form 26.05 to which further reference will appear.
The entire MAI formulary referable to eminent domain consists of three patterned instructions. 9.01 is the prescribed form for use 'where defendants total property is taken', as the committee so notes. Obviously 9.01 is inappropriate in this case. 26.05 is a form to be used 'where the condemning authority offers evidence that the property owner sustained no damage from the taking.' In the Notes on Use of 26.05 the committee has directed that the word 'rights' be used instead of the word 'property' where 'easements etc. are taken rather than the fee.' Significantly, however, as the committee also directs, 26.05 is a verdict directing instruction to be used in condemnation cases 'where the condemning authority offers evidence that the property owner sustained no damage from the taking.' The proceeding presently before us is not such a case, inasmuch as it is affirmatively established by plaintiff's own evidence, and by each of its witnesses on value, that defendants sustained damage in substantial sums. Hence 26.05 and the Notes on Use are not applicable to the submission in this case. It is the committee's positive direction that MAI 9.02 'shall be used where only part of defendant's property is taken.' Inasmuch as the taking in this case is of such nature, and it affirmatively appears from all the evidence that defendants were damaged, 9.02 was properly selected as the prototype of of defendants is directed and the measure of their damage is defined. And, of defendants is directed and the measure of their damage is defined. And, since the committee's comment on the use of 9.02 contains no reference to 26.05 except that it must be given 'where the condemning authority offers evidence that the property owner sustained no damage from the taking,' we reject the suggestion that under the circumstances of this case the terminology of 9.02 should have been modified to accord with that employed in 26.05.
Recent opinions have made it 'crystal clear' that in order to accomplish the purpose for which MAI forms were prepared, 'the courts must insist that they be utilized,' Brown v. St. Louis Public Service Co., Mo.Sup., 421 S.W.2d 255; Motsinger v. Queen City Casket Co., Mo.Sup., 408 S.W.2d 857; Gousetis v. Bange, Mo.Sup., 425 S.W.2d 91. As pointed out by Judge Finch, speaking for the Supreme Court in Brown v. St. Louis Public Service Company, supra: 'This court, by its adoption of Missouri Approved Instructions, promulgated precise approved instructions. * * * The special committee carefully considered the precise words to use in each approved instruction in order to provide simple, concise and understandable instructions. Directions to as the format to be followed were given to cover those instances where no MAI instruction is provided or where the facts of a case require modification of an MAI instruction. When an MAI instruction is applicable, its use is mandatory. * * * If this court is to make this system work, and preserve its integrity and very existence, we must insist that mandatory directions be followed and that the pattern instructions be used as written. Otherwise, as we quoted the special committee's report in our opinions in Motsinger v. Queen City Casket Co., Mo., 408 S.W.2d 857, 860, and Hunter v. Norton, Mo., 412 S.W.2d 163, 166: "
MAI 9.02 has been written and promulgated as the approved instruction from by which to submit the issue of damages in condemnation cases such as this where only a part of defendants' property is taken. It is phrased in terminology consistent with the constitutional mandate 'That private property shall not be taken or damaged for public use without just compensation.' V.A.M.S., Constitution, Art. 1, Section 26. It is a clear and accurate statement of the jury's duty as it has long been recognized by the courts and delineated in pre-MAI instructions. See State ex rel. State Highway Commission v. Kendrick, Mo.Sup., 383 S.W.2d 740 and cases cited; 11A Mo.Digest, Eminent Domain, k136 and 137. The trial court would have been in error had it not followed mandatory directions and used pattern Instruction 9.02 as it was written. As our final comment on the matter we observe that there was abundant evidence to inform the jury that the easement strip was not taken from them in fee and that some residual use value therein survived the appropriation. These facts were apparent from specific langauge of the easement which was read to the jury.
Plaintiff next contends Instruction No. 2 is erroneous in that it directed the jury to find 'some undescribed and vague type of value (of plaintiff's remaining property) after the taking. Reference to the text of the instruction reveals that it uses the words 'fair market value' to guide the jury in evaluating the whole property before the taking, but uses only the unmodified word 'value' when referring to the remaining property after the taking. It appears to be plaintiff's contention that the entire phrase 'fair market value' should have been repeated in the latter instance. We find the charge of error to be without substance. In the first place, the instruction faithfully follows MAI 9.02. Furthermore, as we are remained by the Supreme Court in Brown v. St. Louis Public Service Co., supra, we are to assume that 'the special committee carefully considered the precise words to use in each approved instruction in order to provide...
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