Union Elec. Co. v. Jones, 49093

• Decision Date: 09 April 1962
• Docket Number: No. 49093,No. 2,49093,2
• Citation: 356 S.W.2d 857
• Parties: UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent, v. Charles JONES and Esther Jones, his wife, Appellants
• Court: Missouri Supreme Court

Page 857

356 S.W.2d 857

UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent, v. Charles JONES and Esther Jones, his wife, Appellants.

No. 49093.

Supreme Court of Missouri, Division No. 2.

April 9, 1962.

Motion for Rehearing or for Transfer to Court en Banc Denied

and Opinion Modified May 14, 1962.

Robert B. Baker, Ellington, for appellants.

J. B. Schnapp of Schnapp & Cooper, Fredericktown, J. Ben Searcy, Eminence, for respondent.

STOCKARD, Commissioner.

This appeal arises out of proceedings brought by Union Electrict Company to obtain title to certain land by condemnation to construct electric generating facilities.

Union Electric is a public utility authorized to engage in the manufacture and transmission of electric current for light, heat and power, and for the sale thereof to the public. It obtained the approval of the Missouri Public Service Commission to build, operate and maintain in Reynolds County, Missouri, additional electric generating facilities comprising 'a high head pumped storage electric generating station, consisting of five major components, to-wit: a dam, a lower pool, an upper pool, a water way, and a pumping and generating stations, together with necessary transmission lines leading therefrom.' Union Electric proposes to construct the dam across the East Fork of Black River which appellants assert, and Union Electric does not deny, is a nonnavigable stream. This dam will form the lower pool which will have an area of approximately 370 acres, and a substantial portion of the 240 acre tract of appellants' land which Union Electric seeks to condemn will be flooded thereby. The upper pool with an area of about 50 acres will be constructed about a mile away on top of Proffit Mountain at a substantially higher level than the lower pool. A tunnel 6,300 feet in length will lead from the upper pool to a power plant adjacent to the East Fork of Black River, but which is not located at or near to the dam forming the lower pool. When the project is completed electric entergy from steam generating facilities in St. Louis will be used during periods when the use of electricty is at a minimum to pump water from the lower pool to the upper pool. When peak loads occur the water will be permitted to flow through the tunnel from the upper pool to the lower pool and generate electric power at the power plant. The entire project will be operated electronically by controls in St. Louis.

Appellants first contend on this appeal that Union Electric does not possess the power or authority to condemn their land, or any part of it, pursuant to Chapter 236 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise stated) and that the limited power of eminent domain therein granted is exclusive to what they contend is a general power of eminent domain contained in Chapter 523. Both Chapters grant the power of eminent domain in certain factual situations, and each Chapter as now written sets forth the procedure to exercise that power. However, Civil Rule 86, V.A.M.R., now governs the procedure to be followed in the exercise of the power of eminent domain granted by either Chapter. See Civil Rule 86.01, V.A.M.R.

What is now Chapter 236, commonly referred to as the mill dam act, was first enacted in 1822, see Vol. I, Territorial Laws of Missouri, p. 948, but it then pertained to the construction of a dam and of water, grist, and saw mills on a watercourse. By 1835 the application of the act had been limited to a 'water course not being a navigable stream.' R.S.1835, p. 406, Sec. 1. In 1905, Laws 1905, p. 232, apparently as the result of the ruling in Southwest Missouri Light Co. v. Scheurich, 174 Mo. 235, 73 S.W. 496, the act was amended to extend the authority to construct a dam across a nonnavigable stream to 'any * * * corporation chartered and organized to construct, operate and maintain mills, electric power and light works, or other machinery.' We are not concerned in these proceedings with whether Union Electric has complied with the mill dam act, if applicable, and obtained authority to construct the dam. We are concerned only with the grant therein of the power of eminent domain. Section 236.010 provides that certain persons and corporations 'may erect a dam' across a nonnavigable stream 'if such person or corporation is the proprietor of the land through which the watercourse runs at the point where it is proposed to erect such dam, by proceeding as herein provided.' It appears from the testimony that at the time these condemnation proceedings were commenced Union Electric owned the land on both sides of the watercourse at the site of the dam. Provision is made to determine the 'damages each proprietor will sustain by reason of inundation consequent upon the erection of the dam.' Whether the person or corporation building the dam is to obtain title to the land inundated or only flooding rights thereover is not clear, but the inference is that title is not to be obtained. There is no authority to obtain any interest in land not inundated, even for generating facilities, except that when the land on only one side of the stream is owned, a maximum of one acre may be obtained on the other side to abut the dam. Provision is made that the jury selected to determine the damages should determine whether 'the mansion house of any such proprietor, or the outhouses, curtileges or gardens thereto immediately belonging, or orchard, will be overflowed' and whether and to what exent 'ordinary navigation' (on a nonnavigable stream?) and the passage of fish will be obstructed, as well as other things. It is further provided that if no objections be filed to the proceedings, and it shall appear to the court that the mansion house of any proprietor, or the outhouse, curtilages or gardens thereto belonging, or orchard will not be overflowed, and that the health of the neighborhood will not be materially affected by the stagnation of water, the court shall thereupon grant or refuse the permission prayed for to build the dam according to its judgment of what would be most reasonable and just under all circumstances.

We shall now look to Chapter 523. It apparently represents a consolidation of various grants of the power of eminent domain to companies organized for various purposes. See Laws of Missouri 1851, p. 259 Sec. 8, pertaining to plank roads and macadamized roads; Laws of Missouri 1853, p. 128, Secs. 13 and 14, pertaining to railroads; Laws of Missouri 1866, p. 47, pertaining to land taken for telegraph, road and railroad purposes; and Laws of Missouri 1919, p. 207 pertaining to oil, pipeline or gas corporations. In 1915 the power of eminent domain was granted to 'any electrical corporation organized for the manufacture or transmission of electric current for light, heat or power.' Laws of Missouri 1915, p. 227. Insofar as applicable to the grant of the power of eminent domain to electric companies, Section 523.010 now provides: 'In case land, or other property is sought to be appropriated by * * * any electrical corporation organized for the manufacture or transmission of electric current for light, heat or power, including the construction (when that is the case) of necessary dams and appurtenant canals, flumes, tunnels and tailraces and including the erection (when that is the case) of necessary electric steam powerhouses, hydroelectric powerhouses and electric substations * * *,' and the corporation and the owners cannot agree upon the proper compensation, then certain procedure is to be followed, which, however, is now subject to Civil Rule 86, V.A.M.R.

It is thus apparent that there are two statutes relating to the power of eminent domain of electric companies. These provisions must be read in pari materia and, if possible, effect given to each clause and provision. Davenport v. Teeters, Mo.App., 273 S.W.2d 506, 510. In such situation 'where one statute deals with a subject in general and comprehensive terms and another deals with the same subject in a more minute and definite way, the two should be read together and harmonized if possible, and with a view to giving effect to a consistent legislative policy, but that to the extent of any repugnancy between them the definite prevails over the general, * * *.' We must, if possible, reconcile any apparent conflict in these two statutes with the general legislative purpose. Layson v. Jackson County, 365 Mo. 905, 290 S.W.2d 109; Veal v. City of St. Louis, 365 Mo. 836, 289 S.W.2d 7. Chapter 236 relates to the construction of a dam on a nonnavigable stream, and by reason of the time of its enactment it is apparent that it was intended to have reference to the then typical or usual situation where small and locally used generating equipment was to be a part of or operated in conjunction with a dam. The power of eminent domain granted is limited to a precise factual situation which does not include this case. Subsequent to the time the mill dam act was made applicable in its limited respects to electric companies, the regulation of such companies constituting public utilities, of which Union Electric is one, was vested in the Missouri Public Service Commission, including the construction and operation of generating facilities. See Laws of Missouri 1913, p. 556, and Chapter 393 RSMo 1959, V.A.M.S. Following this the Legislature enacted in 1915 what we consider not to be a general act, as that term is normally used, but a specific grant of the power of eminent domain to 'any electrical corporation organized for the manufacture or transmission of electric current for light, heat or power' to obtain the necessary land, including title thereto when needed, for the construction of dams, canals, flumes, tunnels, tailraces, hydroelectric powerhouses and electric substations. This specific grant, while in one sense is general, is in another respect specific, and it precisely covers the factual situation here. It evidences a clear and unambiguous...