Texas Empire Pipe Line Co. v. Stewart

Decision Date16 February 1931
Docket NumberNo. 17053.,17053.
Citation35 S.W.2d 627
PartiesTEXAS EMPIRE PIPE LINE CO. v. STEWART et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Callaway County; H. A. Collier, Judge.

"Not to be officially published."

Condemnation proceeding by the Texas Empire Pipe Line Company against John A. Stewart and others. From the judgment, plaintiff appeals.

Affirmed, and transferred to the Supreme Court.

Fry & Hollingsworth, of Mexico, Mo., and W. B. Whitlow, of Fulton, for appellant.

Clark, Boggs, Cave & Peterson, of Columbia, for respondents.

ARNOLD, J.

This is a proceeding in condemnation, instituted in the circuit court of Boone county, Mo., on March 15, 1929, by filing therein a petition under the provisions of article 2, c. 13, R. S. 1919, section 1791 thereof as repealed and re-enacted (Session Laws 1921, p. 199).

The facts show plaintiff is a corporation of the state of Delaware, licensed to do business in Missouri, and engaged in constructing, maintaining and operating pipe lines as a common carrier for hire. In the spring of 1929, said company was engaged in constructing a pipe line for the transportation of oil as a common carrier from points in Oklahoma, into and through the state of Missouri and thence into Illinois. Defendants John A. Stewart and Clara M. Stewart, husband and wife, are shown to have been the owners of 320 acres of land in one corporate body in Boone county, Mo., the legal description of which need not be here set out. Defendant Boone county, Mo., at the time the suit was instituted, held two mortgages on said land in the total sum of $12,000. For the construction of said pipe line, plaintiff found it necessary to cross the Stewart farm. The right of way therefor could not be secured by negotiations, and on March 15, 1929, plaintiff instituted this proceeding in the circuit court of Boone county. The petition describes the pipe line as being composed of 12-inch steel pipe to be buried beneath the surface so as not to interfere with the cultivation of the land, and firmly and so tightly sealed at all joints as to be fluid tight. A 40-foot strip of land, 20 feet on each side of the center line thereof, was to be used during the construction of the pipe line only, and after construction, a strip of land 8 feet wide to be used by plaintiff for the purpose of inspection and repair. The pipe line crosses the Stewart land a distance of 206 rods. The 40-foot strip contains 3.12 acres, and the 8-foot strip .62 of an acre.

There is some dispute as to the purport and meaning of one clause in the petition which we deem necessary to quote, as follows:

"And the plaintiff therefore seeks by this action to appropriate and condemn over and across the lands hereinafter described, situated in this County, an easement or right of way for said pipe line, which is to say, the right to lay, operate and maintain such pipe line upon, over and through said land, together with the right of ingress and egress from said pipe line for such purposes; the plaintiff agrees to and covenants that it will bury such pipe line so that it will not interfere with the cultivation of the land, and also agrees to pay any and all damages to crops, fences and land which may be suffered from the operation or maintenance of said pipe line."

The pipe line enters the land in question at or near the southwest corner thereof, runs obliquely northeast through a 50-acre field, and across a segment each of a 45-acre field and a hog lot from which the pipe line leaves the land in question.

Defendant John A. Stewart filed answer in the form of a general denial; and defendant Boone county, Mo., answered setting up the facts relative to the two mortgages on the land held by it, and asked that any damages allowed defendant Stewart be ordered paid to Boone county to apply on said mortgage debts. The petition covenants that plaintiff will pay any and all damages to crops, fences, and land which may be suffered from the operation and maintenance of said pipe line; that after the construction of said pipe line it will not occupy the surface of the land, will not erect any structure thereon, and will not enter upon said land except for the purpose of inspection and necessary repairs. The prayer asks the appointment of commissioners to assess the damages.

The work of constructing the pipe line across the Stewart land was begun about May 25, and completed June 26, 1929. After the filing of the petition the court appointed three commissioners for the purpose of assessing defendants' damages. The return of the commissioners on April 1, 1929, made their award, assessing damages to John A. Stewart at $9.70 per rod, or a total of $2,000. Notice of said award was given all defendants, and on April 3, 1929, plaintiff paid into court the sum of $2,000, the same to be held by the clerk thereof for defendants. On May 27, 1929, the said sum of $2,000 was taken up and receipted for by defendant Boone county, the holder of the mortgages.

On April 5, 1929, plaintiff filed its exceptions to the award of the commissioners, and asked for a new appraisement by a jury. On April 8, 1929, defendants John A. and Clara M. Stewart also filed exceptions to the award of the commissioners. On June 13, the court ordered a new appraisement by a jury, but on July 20, 1929, on application of plaintiff, a change of venue was granted to the circuit court of Callaway county, where the cause was tried to a jury on March 10 and 11, 1930, resulting in the assessment of defendants' damages at $1,900, and judgment was accordingly entered in favor of John A. Stewart. A motion for a new trial was overruled, and plaintiff has appealed.

Neither by the pleadings nor at the trial was the right to condemn questioned; and the only question under consideration at the hearing was the amount of damages to which defendants were entitled. There are fourteen assignments of error, all of which are developed in eight points under plaintiff's points and authorities. The first point urged is that the land not taken, outside the so-called right of way, was not subject to any damages within the meaning of the Constitution. This refers to the constitutional provision (article 2, § 21, Constitution of Missouri 1875) to the effect that "private property shall not be taken or damaged for public use without just compensation." It is urged the measure of damages which may be recovered for such injury, and the rules of evidence applicable thereto, are the same in that branch of a condemnation proceeding relating to land not taken as in an action to recover damages to property not taken for public improvement.

We think this statement of the rule is correct. Plaintiff cites numerous cases, chiefly from the state of Illinois, construing a clause in the Constitution of that state similar to ours, to the effect that lands not taken outside the so-called right of way were not subjected to any damage, within the meaning of the Constitution. While the opinions cited seem to sustain the rule urged in Illinois, we find the cases in Missouri hold to a contrary view. Our attention is called to the case of City of St. Louis v. Hill, 116 Mo. 527, 22 S. W. 861, 21 L. R. A. 226, an opinion by Sherwood, J. In that case defendant was arrested for violating a so-called "Boulevard Ordinance," providing that no building constructed on Forest Park Boulevard in that city should be built at a distance of less than 40 feet from the curb. The ordinances did not provide for the taking of the property right. It was there urged that the restriction of the use of the property was not a taking of property within the meaning of the Constitution. The opinion in that case holds (loc. cit. 533 of 116 Mo., 22 S. W. 861, 862):

"Property * * * is composed of certain constituent elements, to wit, the unrestricted right of use, enjoyment, and disposal of that object. It follows from this premise that anything which destroys or subverts any of the essential elements aforesaid is a taking or destruction pro tanto of property, though the possession and power of disposal of the land remain undisturbed, and though there be no actual or physical invasion of the locus in quo." (Citing authorities.)

The opinion further states that the use of an object is the most essential and beneficial quality or attribute of property, and without it all other elements which go to make up property would be of no effect; that if the city were allowed to deprive the defendant of the use of his entire lot, it would leave in his hands but "a barren and Barmecidal title; and what is true of property rights as an integer is true of each fractional portion." See, also, State ex rel. v. McKelvey, 301 Mo. 1, 256 S. W. 474; State ex rel. v. Christopher, 317 Mo. 1179, 298 S. W. 720.

Plaintiff leans heavily for support of its position on the case of Van De Vere v. Kansas City, 107 Me. 83, 17 S. W. 695, 28 Am. St. Rep. 396. In that case the cause was instituted to recover damages alleged to have been sustained by the construction of a fire station near plaintiff's property. None of his property was taken, but damages were sought on the ground that property in the neighborhood was generally damaged. The court held the plaintiff could not recover because his property had not been taken and the damages suffered by him were likewise suffered by all the people in the neighborhood.

The case of Clemens v. Insurance Co., 184 Mo. 46, 59, 82 S. W. 1, 5, 67 L. R. A. 362, 105 Am. St. Rep. 526, is clearly not applicable here. There the court said:

"But the disturbances mentioned in the Constitution are, in our judgment, disturbances of property sought to be taken, or, at least, property of the same owner out of which that desired is to be carved. We do not think the clause in question was intended to require the prior assessment and payment of probable damages for disturbances to take place in the future of an easement connected with the property of a party, no...

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10 cases
  • Gillespie v. Board of Com'rs of Albany County
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    ... ... was approved in Pipe Line Co. v. Stewart (Mo.) 35 ... S.W. 627. In this state ... 422; Craig v. Fort Worth & D. C. Ry ... Co. (Texas) 185 S.W. 944. Appellant in acquiring the ... right of ... ...
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