State ex rel. N. W. Elec. Power Co-op., Inc. v. Waggoner

• Decision Date: 12 January 1959
• Docket Number: No. 22841,22841
• Parties: STATE of Missouri ex rel., N. W. ELECTRIC POWER COOPERATIVE, INC., a Corporation, Appellant, v. Harry K. WAGGONER et al., Exceptions of Albert A. Rall and Roberta F. Rall, Respondents.
• Court: Missouri Court of Appeals

Page 930

319 S.W.2d 930

STATE of Missouri ex rel., N. W. ELECTRIC POWER COOPERATIVE, INC., a Corporation, Appellant, v. Harry K. WAGGONER et al., Exceptions of Albert A. Rall and Roberta F. Rall, Respondents.

No. 22841.

Kansas City Court of Appeals, Missouri.

Jan. 12, 1959.

Rufus Burrus, Independence, (Burrus & Burrus, Independence), Russell N. Pickett, Eugene E. Andereck, Phil Hauck, Pickett, Andereck & Hauck, Trenton, for appellant.

Barkley M. Brock, Poague, Poague & Brock, Clinton, for respondent.

HUNTER, Judge.

Appellant, N. W. Electric Power Co-operative, Inc., condemned a strip of land 100 feet wide and 1,237 feet long across the 64 acre tract of land of respondents, Albert A. Rall and Roberta F. Rall, located in Jackson County, Missouri, for a perpetual easement to construct an electric transmission line. The commissioners' report of damages and award was $400. Both sides filed exceptions, and trial thereon to a jury resulted. The only issue before the jury was the question of how much, if any, the reasonable market value of the tract had been reduced by the easement taken. The jury returned its verdict for respondents in the sum of $1,000. Appellant perfected this appeal.

The two contentions of error are (1) that the trial court failed to strike certain testimony of witnesses Coggswell and Rall which testimony appellant says is speculative and prejudicial; and (2) that the trial court permitted improper closing argument by respondents' counsel.

We proceed to develop and discuss such facts as are pertinent to an understanding of these contentions of error.

Albert Rall now in retirement because of ill health is an electrical engineer who had worked as Safety Director for the Kansas City Power and Light Company for 42 years. His experience included transmission and distribution work and the construction of high voltage transmission lines. In 1949 he and Mrs. Rall bought the 64 acre unimproved tract for $8,600 with definite plans for building a home on it. While they still lived in Independence, Missouri, they built a compartment garage, with temporary living quarters above, a cow barn, a tool shed and certain other improvements including a driveway from the garage to Hunter Road which ran along the north boundary of the tract. These improvements cost a total of $6,600. In 1951, they sold their home in Independence and moved into the temporary quarters on the 64 acre tract. For the building site for their house they had selected the highest area on the tract, which area was located relatively near to the other improvements, and was just east of the driveway. Respondents' sewer system had a lateral from the garage toward and near the building site.

The easement in question ran directly across respondents' selected building site. Admittedly the transmission lines would be over the place selected by respondents as their house site.

Testimony on behalf of respondents was to the effect that their chosen building site because of the terrain was the best and only satisfactory building site on the entire 64 acre tract. It was also the best site because the other buildings and road on the tract had been arranged to be used in connection with that site. The damages to respondents' 64 acre tract resulting from the taking of the easement, according to respondents' only witness on the subject, John Coggswell, was $6,400.

Testimony on behalf of appellant was to the effect that there were other sites on the tract satisfactory for building a house and that the damage to the 64 acre tract resulting from taking the easement was only $400 or $500. The jury was properly instructed that the measure of damages to the tract as a whole is the difference, if any, between the market value of the 64 acre tract immediately before and after the appropriation of the easement. City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, 153. As stated, the jury returned its verdict for $1,000.

At the outset we wish to state briefly and generally certain fundamentals inherent in a condemnation proceeding such as this. We do so because it is evident from our review of the record of this case that from time to time during the trial both appellant and respondents overlooked them or failed to recognize their applicability and abide thereby.

Eminent domain is the right or power to take private property for public use with the duty to pay just compensation for the property taken or the resultant damage. Const. of Mo. Art. I, Sec. 26, V.A.M.S. It may be exercised by private corporations to the extent and for the purposes authorized by law. Where the power and authority to take exists, as is admitted here, it is the general rule that, in the absence of legislative restriction, the condemnor may determine the location and route of the improvement and of the land or easement to be taken for it. Cf. State ex rel. Coffman v. Crain, Mo.App., 308 S.W.2d 451; 29 C.J.S. Eminent Domain Sec. 91, p. 886. The landowner, in order to induce sympathy and thus to secure a more favorable verdict, cannot properly argue or object to the jury that the condemnor could have selected some other location or have taken some other property just as readily. See, State ex rel. State Highway Commission v. Goodson, 365 Mo. 260, 281 S.W.2d 858; Illinois I. & M. Ry. Co. v. Easterbrook, 211 Ill. 624, 71 N.E. 1116, 118; 29 C.J.S. Eminent Domain Sec. 91, pp. 886-887. Such a consideration has no proper part in the ascertainment of damages resulting from the taking. To argue to the jury or to emphasize to it that it is a forceful taking on the part of the condemnor and that condemnor could have avoided taking the particular tract of land or particular location of the course of the easement is not only improper but is prejudicial in that it is in effect an appeal to the jury to enhance the damage award to punish condemnor for the forceful taking and for its particular selection of the location of the improvements and of the land or easement taken.

On the other hand, the condemnor has the duty both of stating clearly in its pleadings exactly what is being taken and in the trial of refraining from misleading the jury by questions, testimony, argument or by other conduct indicating that something less than that being legally taken is in fact being taken. The owner of the property is entitled to just compensation for all that is taken and not for something less. State ex rel. State Highway Commission v. Johnson, Mo.Supp., 287 S.W.2d 835, 839; Shell Pipe Line Corp. v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917, 918; Union Electric Co. v. Levin, Mo.App., 304 S.W.2d 478, 481.

Just compensation means full indemnity or remuneration for the loss or damage sustained by the owner of the property taken or injured. Where only a part of the property is condemned the owner is entitled to compensation not only for the part actually taken but for whatever consequential damages may proximately result to the remainder by reason of the taking of a part. Hamer v. State Highway Commission, Mo.Sup., 304 S.W.2d 869; City of St. Louis v. Paramount Shoe Mfg. Co., supra; State ex rel. State Highway Commission of Missouri v. Craighead, Mo.App., 65 S.W.2d 145. This includes damages resulting from any destruction, restriction, diminution, or interruption of the rights of ownership in and to the property. Texas-Empire Pipe Line Co. v. Stewart en Banc, 331 Mo. 525, 55 S.W.2d 283; Arkansas Missouri Power Co. v. Kilian, 225 Mo.App. 454, 40 S.W.2d 730.

Generally, any evidence which is competent to prove the market value of the tract of land before and after the appropriation of the easement, unless barred by some recognized rule of evidence, is pertinent and admissible. Texas-Empire Pipe Line Co. v. Stewart, supra. 29 C.J.S. Eminent Domain Sec. 136, pp. 971-972; Missouri Power & Light Co. v. Creed, Mo.App., 32 S.W.2d 783. Testimony concerning market value that is purely speculative or based on surmise and conjecture is not admissible. Kamo Electric Cooperative v. Baker, 365 Mo. 814, 287 S.W.2d 858; Missouri Power & Light Co. v. John Hancock Mutual...