Texas-Empire Pipe Line Co. v. Stewart

• Decision Date: 03 November 1932
• Citation: 55 S.W.2d 283,331 Mo. 525
• Parties: The Texas-Empire Pipe Line Company, a Corporation, Appellant, v. John A. Stewart and Clara M. Stewart, his wife, and Boone County
• Court: Missouri Supreme Court

55 S.W.2d 283

331 Mo. 525

The Texas-Empire Pipe Line Company, a Corporation, Appellant, v. John A. Stewart and Clara M. Stewart, his wife, and Boone County

Supreme Court of Missouri

November 3, 1932

Appeal from Callaway Circuit Court; Hon. H. A. Collier Judge.

Reversed and remanded.

Fry & Hollingsworth and W. B. Whitlow for appellant.

(1) The test of whether any damage has been sustained, within the meaning of the constitutional provision "that private property shall not be taken or damaged for public use without just compensation," and the measure of the damages that can be recovered for such an injury, and the rules of evidence, are the same in that branch of a condemnation proceeding relating to damage to that land not taken as in an action to recover damages to property not taken by a public improvement. Art. II, Sec. 21, Const. of Mo. 1875; Van De Vere v. Kansas City, 107 Mo. 90; Clemens v Insurance Co., 184 Mo. 60; McGrew v. Paving Co., 247 Mo. 565; St. L. K. & W. Ry. Co. v. Knapp Stout Co., 160 Mo. 413; Ill. Power & Light Corp. v. Peterson, 322 Ill. 343, 153 N.E. 577; Prude v. St. Louis, 93 Mo. 416. (a) In a condemnation proceeding, on the issue of whether land not taken has been damaged, the burden of proof is on the landowner. Railroad v. Blechle, 234 Mo. 483; Ill. Power & Light Corp. v. Talbott, 321 Ill. 538, 152 N.E. 486; Stockton v. Chicago, 136 Ill. 434. (b) The fact that the market value of land not taken has been lessened by a public improvement is not determinative of whether such lands not taken have sustained a damage of the kind for which a recovery is allowed. Otis Elevator Co. v. Chicago, 263 Ill. 419; Winchester v. Ring, 312 Ill. 544; Frazer v. Chicago, 186 Ill. 480; Rockford Electric Co. v. Browman, 171 N.E. 189. Testifying to amounts of damage where there is no basis of damage is of no value as evidence that legally recoverable damage has been sustained. Warfield Natural Gas Co. v. Wright, 25 S.W.2d 1036; Rockford Electric Co. v. Browman, 171 N.E. 189; Mutual Union Tel. Co. v. Katkamp, 103 Ill. 422; St. L. & C. Railroad Co. v. Postal Tel. Co., 173 Ill. 533. (c) The constitutional provision as to compensation for private property damaged for public use, was not intended to cover all kinds of damage or injury occasioned by a public improvement. Rigney v. Chicago, 102 Ill. 64. (d) Damage to land not taken, occasioned by a public improvement, to be recoverable, must be either a direct physical injury to the land, or a physical disturbance of, obstruction to, or interference with a right of property. Rigney v. Chicago, 102 Ill. 80; Otis Elevator Co. v. Chicago, 263 Ill. 419; Winchester v. Ring, 312 Ill. 544; Ill. Power & Light Corp. v. Peterson, 322 Ill. 343, 153 N.E. 577; Ill. Power & Light Corp. v. Talbott, 321 Ill. 538, 152 N.E. 486; Ill. Power & Light Corp. v. Cooper, 322 Ill. 11, 152 N.E. 491; Rockford Electric Co. v. Browman, 171 N.E. 189. (2) To be recoverable a damage must not be speculative, contingent or remote, but must be substantial, real, or actual, reasonably certain and susceptible of proof and capable of being approximately measured. Chicago, etc. Railroad Co. v. Kemper, 256 Mo. 279; St. L. etc. Ry. Co. v. Mendosa, 193 Mo. 525; 20 C. J. 763, 767, secs. 225, 226; Ill. Power & Light Corp. v. Talbott, 321 Ill. 538, 152 N.E. 486; Ill. Power & Light Corp. v. Cooper, 322 Ill. 11, 152 N.E. 491; Ill. Power & Light Corp. v. Lummus, 323 Ill. 626, 154 N.E. 421; Winchester v. Ring, 312 Ill. 544; Met. St. Ry. v. Walsh, 197 Mo. 392; 2 Elliott on Railroads (2 Ed.) sec. 991b. (3) Damage, in order to possess that element of proximate casual relationship essential to the recovery of any sort of compensatory damages, must be sustainable as a result of the improvement and not as a result of unreasonable and imaginary fears, apprehensions and aversions. Alabama Power Co. v. Keystone Lime Co., 191 Ala. 58, 67 So. 883; Chesapeake & Potomac Co. v. Red Jacket Consolidated Coal Co., 97 W.Va. 406, 121 S.E. 278. (4) No recoverable damages to the land not taken was proved in the instant case. (a) The elements of fear or mere apprehension of possible danger from pipe line breaking was not a competent element of damage. Alabama Power Co. v. Keystone Lime Co., 191 Ala. 58, 67 So. 833; Chesapeake & Potomac Co. v. Red Jacket Consolidated Coal Co., 95 W.Va. 406, 121 S.W. 278; Ill. Power & Light Corp. v. Talbott, 321 Ill. 538, 152 N.E. 486; Ill. Power & Light Corp. v. Cooper, 322 Ill. 11, 152 N.E. 491; Manfg. Natl. Gas Co. v. Leslie, 51 N.E. 510. (b) The element of apprehension of trespasses by appellant's employees, or others, did not furnish a ground for recovery of damage. Damages cannot be recovered in anticipation that appellant's employees will be guilty of wrongful acts. St. Louis, etc. Ry. Co. v. Mendosa, 193 Mo. 518; Chicago, etc. Railroad Co. v. Kemper, 256 Mo. 279; Ill. Power & Light Corp. v. Peterson, 322 Ill. 343, 153 N.E. 577; Ill. Power & Light Corp. v. Cooper, 322 Ill. 11, 152 N.E. 491; Ill. Power & Light Corp. v. Talbott, 321 Ill. 538, 152 N.E. 486; Patten v. N. C. Railroad Co., 33 Pa. 426, 75 Am. Dec. 612; Peel v. Atlanta, 85 Ga. 138, 11 S.E. 582. (c) The element of apprehension that employees of appellant might injure or leave gates or fences open while constructing, maintaining or operating pipe line did not furnish a ground for the recovery of damages. Telephone & Telegraph Co. v. Railroad, 202 Mo. 684; Ill. Power & Light Corp. v. Peterson, 322 Ill. 343, 153 N.E. 577; Railroad v. Postal Tel. Co., 173 Ill. 535; Railroad v. Postal Tel. Cab. Co., 76 Miss. 752; Railroad v. S.W. Tel. & Tel. Co., 121 F. 276.

Clark, Boggs, Cave & Peterson for respondents.

(1) The lands not taken outside the so-called right-of-way were damaged within the meaning of the constitution. Art. 2, sec. 21, Const. of Mo.; St. Louis v. Hill, 116 Mo. 527; State ex rel. v. McKelvey, 301 Mo. 1, 256 S.W. 474; State ex rel. v. Christopher, 298 S.W. 7720; Van De Vere v. Kansas City, 107 Mo. 83; Clemens v. Insurance Co., 184 Mo. 46; Prairie Pipe Line Co. v. Shipp, 267 S.W. 647; Cape Girardeau v. Hunze, 284 S.W. 471. (2) The trial court properly refused to consider the oral covenant made at the trial of the case and properly refused to limit the evidence in regard to damages to the consideration of the easement of ingress and egress over the eight foot strip alone. Sec. 1220, R. S. 1919; State ex rel. v. Muench, 217 Mo. 124; Owens v. McCleary, 273 S.W. 145; Vaughn v. Daniels, 98 Mo. 230; Gary v. Averil, 12 S.W.2d 747; Nodaway Co. v. Williams, 199 S.W. 225; St. L. K. & N.W. Ry. Co. v. Clark, 121 Mo. 169; Hannibal Bridge Co. v. Schaubacker, 49 Mo. 555; School District v. Jones, 229 Mo. 510; Sec. 1793, R. S. 1919. (3) The proper measure of damages in this case is the difference between the market value of the farm immediately prior and immediately after the taking of the easement and the construction of the pipe line. Prairie Pipe Line Co. v. Shipp, 267 S.W. 647; Cape Girardeau v. Hunze, 284 S.W. 471. (4) Damages to respondents' farm were proved by competent testimony. Prairie Pipe Line Co. v. Shipp, 267 S.W. 647; Cape Girardeau v. Hunze, 284 S.W. 471; St. Louis Belt & Terminal Ry. Co. v. Mendosa, 193 Mo. 518; St. L. M. & S. E. Railroad Co. v. Continental Brick Co., 198 Mo. 698; St. Louis I. M. & S. Ry. Co. v. Pfau, 212 Mo. 398.

OPINION

Gantt, P. J.

Condemnation of land for public use. In due course a jury fixed the compensation at $ 1900. The Kansas City Court of Appeals affirmed the judgment (Texas Empire Pipe Line Co. v. Stewart, 35 S.W.2d 627), and transferred the case to this court. Its decision was deemed contrary to the decision of the St. Louis Court of Appeals in Missouri Power & Light Co. v. Creed, 32 S.W.2d 783. For statement of all the facts, refer to the opinion of the Kansas City Court of Appeals.

Plaintiff condemned a right-of-way for its underground pipe line across defendant's 320-acre farm. It appropriated land forty feet wide and across the farm for use during the construction of the line and permanently appropriated land eight feet wide and across the farm for use in making inspections and repairs. The pipe is under the center line of said permanent right-of-way.

The court ruled that the measure of damages to the farm as a whole was the difference, if any, between the market value of the farm before and after appropriation of the permanent right-of-way. This ruling is challenged.

Plaintiff contends that damage to the part of a farm not taken, to be recoverable, must be either a direct physical injury to said part, or physical disturbance of, obstruction to, or interference with a right of property which the owner enjoys in connection with the use of the farm. It states that the provision in our Constitution that "private property shall not be taken or damaged for public use without just compensation," was taken from the Constitution of Illinois, and with it we adopted the construction of said provision by the Supreme Court of that state. It cites Stone v. Railroad, 68 Ill. 394; Chicago & P. Railroad Co. v. Francis, 70 Ill. 239; City of Elgin v. Eaton, 83 Ill. 535; Rigney v. City, 102 Ill. 64, as construing said provision before the adoption of our Constitution. In those cases no land was taken and the right to compensation turned on a construction of the words "or damaged."

Plaintiff also cites recent decisions of the Supreme Court of Illinois wherein parts of farms were taken, and the court limited recovery to direct physical injury to the part not taken, or physical disturbance of, obstruction to, or interference with a right of property which the owner enjoyed in connection with the use of the farm. In effect, recovery was limited to independent items of actual damage. [Illinois Power & Light Corp. v. Peterson, 153...