Union Elec. Co. v. Levin
| Decision Date | 02 July 1957 |
| Docket Number | No. 29712,29712 |
| Citation | 304 S.W.2d 478 |
| Parties | UNION ELECTRIC COMPANY, a Corporation, Plaintiff-Appellant, v. Sidney S. LEVIN et al., Defendants, Annie Tomschin et al., Defendants-Exceptors, Respondents. |
| Court | Missouri Court of Appeals |
David LaDriere, Clayton, William H. Ferrell and Keefe, Doerner, Schlafly & Griesedieck, St. Louis, for appellant.
Brevator J. Creech, Troy, B. Richards Creech, St. Charles, for Annie Tomschin et al.
Edward L. Sprague, Clayton, guardian ad litem for Pauline Kraus Schoettler.
DEW, Special Commissioner.
Appellant brought this action to acquire by condemnation a certain easement on a tract of land of which the respondents own an undivided four-sevenths interest. The award to respondents by the Commissioners appointed by the Court was $300. Respondents filed exceptions to that report and upon a jury trial thereof in the Circuit Court, the verdict and judgment were in respondents' favor in the amount of $5,000. From that judgment this appeal was taken.
According to the petition filed in this cause August 23, 1954, the appellant is a corporation organized and existing under the laws of Missouri for the purposes of manufacture, distribution and transmission of electric current for light, heat and power for public use and is so engaged pursuant to that authority; that it is necessary in order to render such service, to secure a perpetual right and easement as provided by law 'on eight strips of land, each 30 feet in width, on which to locate and erect one single pole line conveying a 34.5 KV Circuit, together with the right, permission and authority' of the plaintiff, its successors and assigns, 'to place, erect, keep, maintain, inspect, add to the number of and relocate at will, poles, guys, anchors, cross-arms or fixtures and appurtenances, and to string wires, across, through, under or over the premises condemned, owned by the defendants herein', for the purposes stated, with the rights of ingress and egress, of patrol, repairs, 'and for doing anything necessary or convenient for the enjoyment of the easement herein granted', and the privilege of removing at any time 'any or all of the improvements erected upon, over, under or on said land'.
The petition alleged that for the purposes stated it is necessary for plaintiff to secure such a right-of-way over a strip 30 feet in width in the fifty acre tract of land in St. Louis County, Missouri, belonging to the respondents, described as Lot 2 of the Subdivision of Lands of Samuel Conway, according to the recorded plat thereof; that the proposed strip would lie 15 feet on each side of a line running along the center of a perpetual easement over said land previously granted to the plaintiff's predecessor the Union Electric Light and Power Company, which previous easement was for the purpose of erecting and maintaining two electric transmission lines, each 62.5 feet from the center line of that right-of-way. It was further averred that the appellant herein had been unable to agree with the respondents upon proper compensation for the easement presently sought. The prayer was for a decree of condemnation and for the appointment of Commissioners to ascertain the damages, and just compensation to which the respondents would be entitled.
At the beginning of the trial June 6, 1956, it was agreed that the proposed easement was 30 feet wide, 1380 feet long, and that the award of the Commissioners of $300 had been paid by the appellant into court on December 14, 1954.
According to the evidence, the tract in question is in St. Louis County, Missouri, and was used for farming purposes. It contained approximately 50 acres and was oblong in shape, running north and south, except that the southern boundary and lower one-third of the east boundary consisted of a meandering creek, running northeasterly and southwesterly. This tract had been previously bisected by the present U. S. Highway 40, which was about 30 feet in width, and which ran easterly and westerly across the tract, leaving about 15 acres south of the highway and about 35 north of it. Also traversing the entire tract northeasterly and southwesterly, and criss-crossing the said highway near the lower center of the tract, was a 125 foot perpetual easement previously granted by respondents in 1931 to the predecessors of appellant, for the purpose of and actually being used for the erection and maintenance of two 'H-Frame' electric transmission lines for power, light, heat and signal purposes, each line to be and in fact was 62.5 feet from the center line of said easement. Said prior easement of 1931 included the right and privilege of the grantee to enter upon such right-of-way and adjoining premises for the purpose of erecting the H-Frame Structures, cross-arms, wires, cables, anchors, guys and appliances thereto belonging, operating, repairing, maintaining the same, the right to trim, cut or remove trees, bushes, saplings or other obstructions, if any, on the right-of-way, and adjoining premises as may interfere with the operation and maintenance of said lines, the grantors agreeing not to interfere with the successful operation and maintenance of said line or lines for any of the purposes aforesaid. The grantee therein further agreed to pay the grantors any damages to the land due to the construction, operation and maintenance of the transmission lines.
The evidence further showed that under the previous easement of 1931, the grantee had then erected and has since maintained within the boundaries of respondents' farm, two transmission lines 62.5 feet apart, as described, strung on three H-Frame Structures of two poles each on the north line of the easement and three likewise on the south line thereof. An H-Frame Structure was defined as consisting of 'Two wood or metal poles set opposite each other and at equal distance from the center line of the transmission line with cross-arms, etc., affixed near the tops of the poles'.
There was a one and a half story house, a barn and outbuildings near the northwest corner of the tract, facing Conway Road, the north boundary of the respondents' land, but they were 900 or 1000 feet from the nearest point in the easement. The land sloped upward from the transmission line to Conway Road and downward toward the south. Because of the location and intersection of Highway 40, and the easement of 1931, the lower 15 acres or thereabouts were cut up into three irregular portions, one very small in area, but all were being used for agricultural purposes. During the trial, the Court in the present proceedings permitted the jury to view the property.
Such, substantially, according to the proof, were the conditions at the date of the present condemnation, under which a single line of four wooden poles were erected on respondents' land along the center line of the former easement, and set about 300 feet apart, each carrying a cross-arm 16 feet long on which were strung two transmission wires. It is for the additional damage to respondents' land by the rights acquired for the single transmission line down the center of the previous easement that respondents are here seeking recovery.
Further detail of the voluminous evidence would serve no essential purpose because of the view we take of appellant's first point of error. Immediately after the jury was empanelled and sworn, appellant's counsel asked leave of the Court to amend the petition by striking out the words 'across, through, under or', referring to the placing of the wires on the premises condemned, and to strike also the words 'and for doing anything necessary or convenient for the enjoyment of the easement herein granted'.
Counsel for respondents vigorously objected, urging that the amendment was too late, that appellant had paid the amount of the Commissioners' award, had taken possession of the easement, and had constructed its line thereon; that the amendment would change the cause of action; that the decree of condemnation was a final judgment upon payment of the award, and the easement had been fully acquired under the petition. It was urged that the only issue pending was the damages for the taking of the property.
Counsel for appellant denied that the proposed amendment made any change in the substance of the petition; asserted that there was no final judgment in the condemnation suit until after the trial by jury, a verdict, a judgment and a ruling upon the final motions thereon; that the purpose of the request for leave to amend was to clear up any misunderstanding that appellant was stringing wires underground on defendants' premises, which was not its intention, purpose or desire.
Respondents' counsel further suggested that respondents could not appeal from the decree granting the easement; that the property was already taken and being used by the appellant.
The Court stated that the words 'across, through, under or', provided for a broader easement whether appellant used it or not, and that the Commissioners' report necessarily included it; that any such change now would be prejudicial; that aside from the statement of counsel for appellant that such right would not be used, the fact is that the Commissioners' report included it.
Appellant's counsel explained that by the...
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