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

• Decision Date: 07 April 1969
• Docket Number: No. 24998,24998
• Citation: State ex rel. N. W. Elec. Power Co-op., Inc. v. Stewart, 440 S.W.2d 146 (Mo. App. 1969)
• Parties: STATE of Missouri ex rel. N.W. ELECTRIC POWER COOPERATIVE, INC., a corporation, Appellant, v. William Hadley STEWART et al., Exceptors, Loren L. Coon and Coy Coon, husband and wife, and Winton E. Coon and Twyla Coon, husband and wife, Respondents.
• Court: Missouri Court of Appeals

Page 146

440 S.W.2d 146

STATE of Missouri ex rel. N.W. ELECTRIC POWER COOPERATIVE INC., a corporation, Appellant, v. William Hadley STEWART et al., Exceptors, Loren L. Coon and Coy Coon, husband and wife, and Winton E. Coon and Twyla Coon, husband and wife, Respondents.

No. 24998.

Kansas City Court of Appeals, Missouri.

April 7, 1969.

Phil Hauck, Pickett, Andereck & Hauck, Trenton, for appellant.

Wilbur L. Pollard, David Lee Wells, North Kansas City, Williams, Norton & Pollard, North Kansas City, of counsel, for respondents.

SHANGLER, Judge.

On August 3, 1967, plaintiff N.W. Electric Power Cooperative, Inc., condemned a strip of land 100 feet wide as a perpetual easement for the overhead wire transmission of electricity across defendants' land. No poles were contemplated to be implanted thereon for such purposes; rather, they were located on the Smith property immediately to the south of defendants' land. The transmission line, consisting of 3 electric and 2 static wires ran generally from southeasterly to northwesterly so that only the northwesterly wire, transmitting 69,000 volts, overhung defendants' property at a height of 40 feet at its southwest corner for a distance of ten feet.

The easement itself, however, extended 79 1/2 feet along the west frontage of the southernmost portion of the property and 62 1/2 feet easterly along its south limits. By its terms, plaintiff was authorized to construct gates to permit ingress to and egress from the transmission line and to trim, cut and remove any trees, growth or structures from within 50 feet of the line.

The property itself is located in Goshen, some 5 miles west of Princeton, Mercer County, Missouri. It is a generally level area, bounded on the west by Highway A, directly across from the Princeton Golf Course. Somewhat to the north of the property, runs Highway 136, an all-weather thoroughfare, which, in turn, runs generally across the northern part of Missouri.

Each of the witnesses testified tersely and briefly. The defendants presented Lloyd Bryan, a local real estate salesman. Defendants Loren Coon and Gene Coon testified on their own behalf. Although the record does not affirmatively reveal it, we shall assume that 'Gene' is but a pseudonym for the 'Winston E.' Coon designated in the pleadings as a party defendant. We shall advert to the substance of their testimony at the appropriate times during the course of this discussion.

Plaintiff presented its Field Engineer, James Gallagher, who described in some detail the physical aspects of the easement taking, as well as his understanding of the legal consequences of the proposed taking. Plaintiff additionally offered four value witnesses, the first of whom was Clarence Shafer, a licensed Missouri real estate broker and life-long farmer with offices in Trenton. He was familiar with land values of the area, having kept listings of residential and farm properties in Mercer County. In fact, some two years prior to the trial, he had sold the Lewis farm just north across the road from defendants' property. He was informed as to the terms and extent of the easement taking (as were all the witnesses who offered value and damage opinions) and concluded that defendants were not damaged thereby as the reasonable market value before and after the taking was $5,000.00. Robert Jones, a life-long resident of Mercer County, owned, with his sister, 1,000 acres of farm land, and perhaps more. He had been called upon by the court to make appraisals of real estate on several occasions, was familiar with defendants' property and concluded that the value of defendants' land prior to taking was $2,500.00, and after taking, $2,475.00, for a damage of $25.00. He did not profess any knowledge of residential property values. Earl Puffer, a life-long Mercer County farmer and current farm owner, had worked in the immediate vicinity of the Coon property. He kept himself informed of farm values. It was not disclosed whether he had any familiarity with residential property values in the area. Although his own property (presumably in Mercer County) had doubled in value within the past ten years, he valued defendants' property before the taking at $2,000.00 and after, at $1,975.00, for a damage of $25.00. It is to be noted that by this account, defendants' land, purchased in 1946 for $2,400.00, had depreciated in value to $2,000.00 as of immediately before the taking. Plaintiff's final witness was Wilbur Ewing, a licensed real estate broker and local agent for United Farm Agency, with an office in Trenton, Missouri. He was familiar with land values in Mercer County, maintaining a listing of farm and residential properties of that area. He knew the Coon property and had viewed it several times. He valued defendants' property before and after the taking at $4,500.00, with no resultant damage from the taking. The jury returned a verdict of $300.00 for defendants and plaintiff appeals.

Plaintiff assigns two basic errors to the trial court. We interpolate them as: (1) the court improperly refused to sustain its motion to strike, and erroneously admitted defendants' evidence of damage to their land 'based solely upon the value of an intended residential lot', as there had been no evidentiary showing of a present need, or probable future need, for the use of the land for such purpose, and was, therefore, speculative; and (2) the court improperly received the testimony of defendant Gene Coon, an owner, as it went beyond a legitimate expression of fair market value, but undertook to attribute elements thereto he was not qualified to present and evaluate. As we have intimated, the assignments of error were somewhat differently phrased by appellant, but we take these to be the sense of them. We have concluded that neither assignment of error can be sustained as they are unsupported by the evidence in this case.

As to plaintiff's first point, we do not take issue with the principle of law, as such, offered by plaintiff in support of it. In cases involving a taking of real estate, or an interest therein, "* * * the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future." Union Electric Company of Missouri v. McNulty, Mo.Sup., 344 S.W.2d 37, at p. 40, quoting from 29 C.J.S. Eminent Domain § 160, p. 1026. Furthermore, speculative schemes of use by the proprietor must be excluded as there must be a demonstrable relationship between the future use and present value of the land. Northeast Missouri Electric Power Coop. v. Todd, Mo.App., 401 S.W.2d 161, at p. 164; Empire Dist. Electric Co. v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78.

We have concluded, however, that evidence both of plaintiff and defendants was such that the jury could have readily determined that the highest and best use of defendants' land was for residential sites and if not for a present use as such, then for use in the reasonably immediate future. Lloyd Bryan testified as a value witness for defendants. He was a long-time resident of Princeton, Missouri and had been a real estate salesman of both residential and farm properties for twenty years. He knew the Coon property and considered its highest and best use as that of residential sites. He based that opinion upon a continuing demand for such lots by those preferring rural homes, and others seeking to avoid city taxes. He concluded that the fair market value of each of defendants' six lots prior to taking was $1,000.00 (for a total of $6,000.00) and that after taking, the fair market value of the south lot was $500.00, so that defendants' damage by the taking was $500.00. Furthermore, plaintiff's value witness, Wilbur Ewing, a licensed broker and agent for United Farm Agency, readily acknowledged the suitability of the Coon property for use as homesites in the dimensions staked out by defendant Gene Coon. Its highest and best use, he concluded, was 'an acreage or, in other words, a home'.

We relate defendant Gene Coon's testimony in some detail as it will be referred to both within the context of the point under discussion, as well as other points to be considered later. Defendant Gene Coon testified as to the location of the land, its proximity to the Princeton Golf Course and the nature of the surrounding roads. He had measured off the land into six lots of one hundred feet frontages and two hundred sixty feet depths, having been prompted to that activity by information received from 'some of the contractors around town (who) had told me that they were running out of desirable lots in town * * *'. He knew that building lots were being purchased north and south of Princeton, but was not aware that anyone was building residences in the area of Goshen. Upon being asked by his attorney what he considered to be the highest and best use of the property, defendant Coon did not answer but was interrupted by the objection of plaintiff's counsel that 'this is speculation and surmise and that at this time I would also like to ask a question preliminary to further objection'. At this point, plaintiff's counsel conducted an inquiry much in the nature of cross-examination and during its course elicited that defendant Gene Coon had staked out the property by driving laths into the ground, that no modern water system was available on the land, no sewer system, nor curbs. Plaintiff's counsel then objected 'to the answers which are being solicited by questions propounded by defendants' attorney on the basis that such questions call for answers which are speculative in nature, based upon surmise'. It is to be remembered that, in fact, defendants' counsel had solicited only that residential lots were in demand north and south of Princeton, defendant, as yet, not having been permitted to state his judgment as to the highest and best use of the land. ...