Union Electric Co. v. Miller

354 S.W.2d 341, 1962 Mo. App. LEXIS 793
CourtMissouri Court of Appeals
DecidedFebruary 20, 1962
DocketNo. 30879
StatusPublished
Cited by3 cases

This text of 354 S.W.2d 341 (Union Electric Co. v. Miller) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Union Electric Co. v. Miller, 354 S.W.2d 341, 1962 Mo. App. LEXIS 793 (Mo. Ct. App. 1962).

Opinion

SAMUEL E. SEMPLE, Special Judge.

This is a condemnation proceeding. The appellant, Union Electric Company, sought to condemn a perpetual right-of-way easement one hundred feet wide across the land of respondents Andrew J. Miller, Jr., and Marion F. Miller, his wife, for the purpose of constructing and maintaining an electric transmission line. Commissioners regularly appointed, awarded respondent land owners the sum of $150 as damages for the taking of the right-of-way easement across a part of their land. Both sides filed exceptions to the Commissioners’ report and upon trial in the Circuit Court a jury awarded respondents $1,500 in damages. The Circuit Court denied appellant’s Motion for New Trial on condition of a remittitur of $500 which said remittitur was filed by respondents. This cause comes to this court on appeal from the final judgment of $1,000 entered by the Circuit Court.

Appellant in this case appropriated a perpetual easement one hundred feet in width and about one-fourth mile in length (3.03 acres) through the approximate center of the east forty acres of an eighty-acre tract of land owned by respondents for the purpose of constructing and maintaining a line of poles, wire, anchors, guy wires, etc., for transmitting and distributing electrial energy. Appellant was granted the right to alter, add to, and relocate at will said transmission line, the right to trim branches or trees and keep the right-of-way free from any and all obstructions, and the right of ingress and egress over said right-of-way. Appellant alleged in its petition, and the Circuit Court stated in its Order of Condemnation, that except for the area required for the erection of poles and appurtenances thereto, the balance of said easement could be used by respondents for cultivation or such other use as would not endanger or interfere with the construction and maintenance of said transmission line.

Appellant assigns as error the action of the trial court in giving Instruction Two at the request of respondents for the reason that it does not submit the proper measure of damages. The portion of Instruction Two, complained of by appellant, setting out the measure of damages, reads as follows :

“ * * * First, the fair reasonable market value of the property actually taken by the plaintiff from the defendants’ land, as shown by the evidence.
“And second, for such damages, if any, to the remainder of defendants’ said land caused by the taking of said right-of-way by the plaintiff, over defendants’ land, which you may find from the evidence, defendants have sustained thereby; and the total amount found on account of these two items, less any special benefits, if any, the amount of which has been proved, as defined in other instructions herein, as will accrue to defendants’ remaining property, will be your verdict for the defendants in this case, if your verdict in this case is for the defendants.”

The Circuit Court also gave, at the request of appellant, Instruction 3A which, in substance, set out the measure of damages as the difference between the fair cash market value of the land before the taking of the right-of-way and the fair cash market value of the land after the taking of the right-of-way.

[343]*343The courts of this state have long recognized and followed the rule that where ■only a part of the property is condemned the owner is entitled to recover the reasonable market value of the property actually taken plus any damages resulting to the remainder of the property because of the taking of the part. State of Missouri ex rel. Chariton River Drainage District v. Montgomery, Mo., 275 S.W.2d 283; City of St. Louis v. Koch, Mo., 76 S.W.2d 398; State of Missouri ex rel. N. W. Electric Power Cooperative, Inc. v. Waggoner, Mo.App., 319 S.W.2d 930. Instruction Two follows the method of assessing damages under the aforementioned rule and similar instructions have been approved, State ex rel. State Highway Commission v. Williams, Mo.App., 263 S.W.2d 444; State of Missouri ex rel. Chariton River Drainage District v. Montgomery, supra.

Appellant concedes that this type of damage instruction has been approved (State ex rel. State Highway Commission v. Williams, supra) and is proper in cases where a right-of-way is being taken for road purposes but maintains that where a right-of-way is taken for an electric transmission line the only measure of damage is the difference in value of the whole tract over which the right-of-way passes immediately before and .after the condemnation.

In cases where a part of a tract of land is condemned the courts have expressed the rule of the measure of damages in two different ways and “each expression inclusively defines as well as complements the other.” State ex rel. Chariton River Drainage District v. Montgomery, supra (275 S.W.2d 1. c. 286). In State ex rel. State Highway Commission of Missouri v. Craighead, Mo.App., 65 S.W.2d 145, 148, this court said:

“Of course, in the final analysis, the measure of damages in a condemnation proceeding is the difference in the reasonable market value of the entire tract before and after the appropriation of the part taken. City Water Co. of Sedalia v. Hunter, 319 Mo. 1240, 6 S.W.(2d) 565; Texas-Empire Pipe Line Co. v. Stewart, [331 Mo. 525,] (Mo.Sup.) 55 S.W.(2d) 283; Arkansas-Missouri Power Co. v. Killian, 225 Mo.App. 454, 40 S.W.(2d) 730; Missouri Power & Light Co. v. Creed (Mo.App.) 32 S.W.(2d) 783. However, the same result may be and usually is reached in another way, which is by informing the jury that the landowner is entitled to recover the value of the land actually taken, plus the damage, if any, to the remainder of the tract of which that taken formed a part, less the special benefits, if any, accruing in consequence of the making of the improvement. State ex rel. [State Highway Commission] v. Huddleston (Mo.App.) 52 S.W.(2d) 33; State ex rel. [State Highway Commission] v. Blobeck Inv. Co. (Mo.App.) 63 S.W.(2d) 448.”

In State ex rel. State Highway Commission v. Williams, supra, the court held that it was wholly unable to find that a jury could have been confused or led into assessing double damages by giving instructions on each (both) methods of determining damages.

Appellant attempts to distinguish between condemning a part of a tract of land for a right-of-way for a road and a right-of-way for a power line in expressing the measure of damages. Appellant’s contention appears to be on the theory that when a right-of-way for a road is appropriated the entire surface of the property is taken and diverted to another distinct use, whereas when a right-of-way for a power line is appropriated a small portion of the land surface is taken (the part on which the poles are located) and the remainder of the land surface is continued to be used by the owner of the land not inconsistent with the maintenance of the power line. There is no question but that the land in which the poles are placed is as effectively taken as would be the ground on which a road is built and the only difference demonstrated is in the amount of the land actually taken. This does not appear to be the basis for a valid [344]*344distinction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Southwestern Bell Telephone Company v. Webb
393 S.W.2d 117 (Missouri Court of Appeals, 1965)
Union Electric Company of Missouri v. Simpson
371 S.W.2d 673 (Missouri Court of Appeals, 1963)
Public Water Supply District No. 2 of Jackson County v. Alex Bascom Co.
370 S.W.2d 281 (Supreme Court of Missouri, 1963)

Cite This Page — Counsel Stack

Bluebook (online)
354 S.W.2d 341, 1962 Mo. App. LEXIS 793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-electric-co-v-miller-moctapp-1962.