State ex rel. Kansas City Power & Light Co. v. Keen

332 S.W.2d 935, 1960 Mo. LEXIS 830
CourtSupreme Court of Missouri
DecidedMarch 14, 1960
DocketNo. 47505
StatusPublished
Cited by1 cases

This text of 332 S.W.2d 935 (State ex rel. Kansas City Power & Light Co. v. Keen) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Kansas City Power & Light Co. v. Keen, 332 S.W.2d 935, 1960 Mo. LEXIS 830 (Mo. 1960).

Opinion

BARRETT, Commissioner.

In the establishment and construction of its electric transmission lines from Montrose Station in Henry County to a', substation in Jackson County the Kansas City Power & Light Company condemned an easement 150 feet wide and 2,878 feet long (approximately ten acres) diagonally across the 353 acre farm of Wendell and Roberta Keen in Cass County. To carry its 161,000 volt transmission lines across the Keen’s stock farm the company has built four structures with four poles in each structure on its easement and the lines are two to three hundred feet to the rear of the Keen’s house. Mr. Keen purchased the property near Raymore in 1952 for $63,500 and in the meantime has spent $20,000 on improvements. It was Mr. Keen’s opinion that the value of his farm [937]*937was $300 an acre immediately before the condemnation of the easement in December 1956 and that the transmission lines had damaged his property $50 an acre even though farm values had increased twenty to twenty-five per cent and his land was now worth $350 to $400 an acre. Upon a change of venue to Saline County and exceptions by both parties to the commissioners’ award of $10,500, nine members of the jury awarded the Keens $2,500 damages and they have appealed from the ensuing judgment. Since the appellants seek a new trial upon the only issue involved, the amount of compensation due, and there is evidence in support of their claim of damages in excess of $12,500 jurisdiction of the appeal is properly in this court. State ex rel. State Highway Commission v. Rauscher Chevrolet Co., Mo., 291 S.W.2d 89; City of St. Louis v. Kisling, Mo., 318 S.W.2d 221.

The appellants contend that the trial court erred in instructing the jury and in admitting certain evidence and that for these two reasons they are entitled to a new trial.

When an electric power company condemns an easement or right of way through a tract of privately owned land the measure of damages in general is the difference in value of the land immediately before the taking and its value immediately after the taking. Annotation 124 A.L.R. 407, 408. And so, obviously, instructions for either condemners or condemnees which do not conform to this standard or conflict with it are erroneous. Kamo Electric Cooperative v. Baker, 365 Mo. 814, 287 S.W.2d 858; Arkansas-Missouri Power Co. v. Killian, 225 Mo.App. 454, 40 S.W. 2d 730. If the instructions are not only erroneous but also permit the jury to consider improperly admitted evidence and accordingly award as damages items or matters not recoverable or, vice versa, deny damages for recoverable items under the general rule the aggrieved party is entitled to a new trial. Missouri Power & Light Co. v. Creed, Mo.App., 32 S.W.2d 783. The appellants contend that instruction P-6 infringes upon the general rule and therefore they are entitled to a new trial.

The instruction is short and therefore is set out in full:

"The Court instructs the jury that under the law and the evidence in this case the plaintiff has the right to take and use for the construction and maintenance of its service line, the one hundred fifty foot easement containing approximately 10 acres, extending across the land owned by defendants, and described in the evidence, upon paying to the defendants just compensation therefor, and the only matter for the jury to determine in this case is the just amount of compensation to be paid by plaintiff to defendants for the appropriation and use thereof, as detailed in other instructions herein.”

It is said that the instruction does not correctly state the law applicable in condemnation cases in that it limits and instructs the jury that defendants’ damages relate only to the ten acres covered by the easement. It is urged that the error in the instruction is apparent when it is noted “that most of plaintiff’s witnesses, while purporting to express an opinion as to the damage to the entire tract actually used varying formulas based upon a percentage of the total value of the ten acres in the easement and did not make any allowance for damage to the remaining tract.” Therefore it is contended that the instruction had the obvious effect of favoring the plaintiff’s trial theory that only damage to the land in the easement should be considered and ignored the defendants’ evidence that there was in fact damage to the entire tract.

The witnesses for both parties considered several factors and employed various formulas in arriving at their opinions as to the value of the land before and after the taking, but as the appellants’ statement of their position concedes they did in fact finally express their opinions or conclusions “as to the damage to the entire tract.” [938]*938It will be observed that the instruction does ■not direct a verdict (Compare State ex rel. State Highway Commission v. Huddleston, Mo.App., 52 S.W.2d 33), or, as we understand, purport to state how the damages are to be measured. On the contrary, as to “just compensation,” the jury was specifically directed to “other instructions herein.” And in this connection there was a long instruction, D-l, which set forth all the facts in detail, including the plaintiff’s right to use the 150 foot easement. This instruction directed a verdict against the plaintiff “for such sum as you may find and believe from the evidence to be the difference, if any, between the reasonable market value (as that term is defined in other instructions) of defendants’ said land immediately before the taking by plaintiff of the easement and rights thereon, and the reasonable market value of defendants’ said lands immediately after the taking by plaintiff of its easement rights, — that is, the decrease, if any, in the fair, reasonable market value of the entire tract of land directly resulting from the taking of said easement rights in said lands.” There was an instruction defining “fair market value” and another explaining how that value was to be compensated in damages. Instruction P-6 does not conflict with these instructions and considering the series it is not believed that the jury was confused or misled into believing that they were to assess damages for the ten acres included in the easement only, particularly so when all the evidence related to the value and damages to the “entire tract of land.” The instruction may be cautionary or somewhat abstract and it may be that the trial court could have refused to give it, but in the circumstances of this record and the context of all the instructions it did not so infringe upon the general rule as to entitle the appellants to a new trial. State ex rel. State Highway Commission v. Leftwich, Mo.App., 263 S.W.2d 742; Chicago, R. I. & P. Ry. Co. v. Hosman, 227 Mo.App. 659, 57 S.W.2d 434; State ex rel. State Highway Commission of Missouri v. Hartman, 226 Mo.App. 604, 44 S.W.2d 169.

The plaintiffs principal place of business is in Kansas City, the defendants reside in Cass County and their farm is in Cass County but by reason of a change of venue the case was tried in Saline County.

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Shelton v. M & a Electric Power Cooperative
451 S.W.2d 375 (Missouri Court of Appeals, 1970)

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Bluebook (online)
332 S.W.2d 935, 1960 Mo. LEXIS 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kansas-city-power-light-co-v-keen-mo-1960.