Prairie Pipe Line Co. v. Shipp

In February 1921, the plaintiff filed a petition in the Circuit Court of Randolph County, under Section 1791, Revised Statutes 1919, for the condemnation of a right of way for a pipe line across and *Page 668 under certain tracts of land in that county, one of which was owned by Benjamin Shipp and wife and the other by L.B. Gibson and wife, who are the defendants herein and own their respective lands by the entirety. Commissioners were appointed in conformity with the prescribed statutory procedure who assessed nominal damages in favor of the owners of the land. The plaintiff proceeded under this judgment to lay its pipe line. The defendants excepted to the report of the commissioners, and it was set aside, and upon a trial before a jury a verdict was returned in favor of Shipp and wife for $1000; and in favor of Gibson and wife for $1400. From this judgment an appeal was perfected by the plaintiff to the Kansas City Court of Appeals. Under our ruling in Springfield S.W. Ry. Co. v. Schweitzer, 246 Mo. 122, and Moberly v. Lotter,266 Mo. 457, this case was transferred to the Supreme Court on the ground that the title to real estate was involved (240 S.W. 473). The petition is in the conventional form employed in cases of this nature. It asks, inter alia, that a strip of land eight feet in width may be condemned across the lands of the defendants for the purpose of permitting the plaintiff — a Kansas corporation engaged in the transportation of oil through this State — to lay a pipe line underneath the surface of the lands for plaintiff's use in its business. The pipe line to be laid in such a manner as to not interfere with defendants' access to or cultivation of the soil or the drainage of the lands or of tracts adjacent thereto, except during such times as the plaintiff may necessarily be engaged in laying, removing or repairing the line. The plaintiff, by its pleading, obligates itself in the event of the condemnation, to afford the defendants access at all times to the lands and their right to the use of the same as parts of their respective farms, in the same manner and to the same extent as if said line had not been laid subject to the right of entry for the purposes stated. Plaintiff further *Page 669 obligates itself to pay defendants any damages to the lands by reason of the installing or the repairing of said line by plaintiff; or for any damages that may subsequently be done to growing crops on the right of way from time to time, or by the laying of additional pipe lines or the repairing of those laid, or by the escape of oil upon the right of way or upon adjacent lands. The pipe line laid across the Shipp farm is 1277 feet long, eight feet wide and embraces an area of .235 acres; the line across the Gibson farm is 2221 feet long, eight feet wide and embraces an area of .408 acres. The estimated value of the Shipp land, which consists of one hundred eighty acres, before the installation of the pipe line, was from $110 to $115 per acre. After the installation of the pipe line the land was estimated to be worth from $75 to $80 per acre. The estimated value of the Gibson land, which consists of one hundred forty acres, prior to the installation of the pipe line was from $140 to $150 per acre. After the installation of the pipe line the land was estimated to be worth $125 per acre. There was testimony that the laying of the pipe line caused ridges in the land, rendering the cultivation of same difficult; that where disturbed the land is "killed" or rendered unproductive for a year or two thereafter; that the cultivation of the land would be subject to further interference if leaks in the pipe occurred; that such an occurrence happened in another line laid earlier under these tracts and not only prevented cultivation while the repairs were in progress, but that the escaped oil destroyed the productive character of the soil with which it came in contact and rendered its cultivation useless. Furthermore it was shown that where a pipe line of the character at bar is laid during wet weather damage is done to the cultivable character of the soil; also that the frequent patrolling of the line by plaintiff shown to have been necessary, and the making of repairs thereon when required, interfere with the unobstructed use of same by the owners, to their detriment. *Page 670 I. By then conduct the parties concede the validity of the statute (Art. II. chap. 13, R.S. 1919) upon which this proceeding is based in so far as it authorizes private corporations to condemn land for the laying of pipe lines and the transportation therein of crude petroleum through this State. [Smith v. Glynn, 177 S.W. (Mo.) 850 and cases; State ex rel. v. McQuillin, 246 Mo. l.c. 592; Burns v. Ins. Co., 295 Mo. l.c. 694; State ex rel. Home Savings Ins. Co. v. Lee, 288 Mo. l.c. 707.] This concession eliminates from consideration in this case what might have presented a serious question under the limitations of the Constitution. II. Texts and treatises attempt to state general rules from which the measure of damages may be determined in cases of the character at bar. The difficulty in relying upon such rules as forming a basis for a conclusion in a particular case, is that when traced to the adjudicated cases upon which theyMeasure of must rest, they are not infrequently found to beDamages. general deductions drawn from cases compositely considered, which, upon analysis, are, from their variant facts, not subject to such classification. In short, it is sought to frame a general rule from a combination of dissimilar facts. Neither in law nor in logic can a consistent conclusion be drawn from inharmonious premises. Nor do general statements as to the limitations upon such rules afford material aid in estimating the damages in a particular case. To declare, therefore, that damages should be direct and certain and such as may be known or may be reasonably expected to result from the invasion of premises by the condemnor and the consequent disturbance of the dominion of the owner and the construction by the former upon the premises invaded of the improvement or facility to be employed, lends little light in estimating the damages in a concrete case, except to mark the boundaries of consideration. Especially is this true where, as at bar, the damages sustained must be determined from opinion evidence upon which the market value *Page 671 of property of necessity has its foundation. [St. L., Memphis, Railroad Co. v. Cont. Brick Co., 198 Mo. l.c. 709.] Conceding the application, therefore, of the general rules referred to and that the testimony must be of the character mentioned, aside from these limitations, precedents, parallel in their facts, disclose certain well-defined standards to be observed in condemnation cases. While many of the cases cited have reference to condemnations of rights of way for railroads and involve the absolute and continued use of the right of way by the condemnor, the difference between that class of cases and the instant case is only one of degree in estimating the damages and does not involve a difference in the basis or principle upon which the estimation is made. To illustrate: the determinative tests in ascertaining the damages in railroad condemnation cases are, first the damage done to the absolute taking of the right of way, and, second, the difference between the value of the land before the taking and thereafter. In cases as at bar a like standard is applicable in estimating the damages except that those assessed for the taking of the right of way itself must be minimized by the fact that the owner is not wholly deprived of the use of the surface of the right of way itself as in railroad cases. The rule adverted to furnishes the safest and most reliable standard from which such injuries may be estimated. A long line of authorities in this State sustain the application of the rule in railroad condemnation cases, and with the difference stated its application in the instant case accords with reason and affords a just basis for the determination of the damages. The rule, as most explicitly stated in these cases, is that when a part only of land is taken under condemnation proceedings the measure of damages is the difference between what was the fair market value of the entire tract before and after the appropriation in view of the use to which the portion condemned should thereafter be applied. [St. L. Belt Term. Ry. Co. v. Cartan R.E. Co., *Page 672 204 Mo. 565 and cases: Mo. Pac. Railroad Co. v. Porter, 112 Mo. l.c. 368; Wyandotte, K.C. N.W. Ry. Co. v. Waldo, 70 Mo. 629; Quincy, Mo. Pac. Railroad Co. v. Ridge, 57 Mo. l.c. 601.] The rule as applicable to the case at bar is comprehensively considered in St. Louis v. Hill, 116 Mo. 527, 21 L.R.A. 226, in which it is said, in effect, that anything which destroys or subverts the exclusive right of any person to freely use, enjoy and dispose of any determinate object, real or personal, constitutes a taking or destruction pro tanto of property, notwithstanding the possession and disposal thereof is not disturbed and there is no actual or physical invasion of thelocus in quo. III. Aside from the increased difficulty encountered in cultivating the land by reason of the ridges raised thereon after the laying of the pipes, the deterioration of the fertility of the soil on the right of way by leaving thereon non-arable clay, and the frequent patrolling of the land by plaintiff's employees, the evidence is negligible concerning the damages occasioned by the installation of the pipe line. Even as to these injurious incidents there is no substantial evidence as to the extent of the damages. However, when we come to consider the second element of damages or, concretely stated, the effect upon the value of the land other than that occupied by the right of way, there is no lack of evidence to sustain the conclusion that the laying of the pipe line across these lands materially depreciate their market value. The cogency of this evidence is ample, not only as to the number of the witnesses but the amount per acre of the depreciation, to render it unnecessary to enter into particulars in the presentation and discussion of the same. In the face of these facts no question can arise as to their sufficiency to authorize the submission of the case to the jury. Thus submitted, a proper element of damages as we have stated, is the depreciation or diminution in value of the market price of the land by reason *Page 673 of the laying of the pipe line. [Met. St. Ry. Co. v. Walsh, 197 Mo. l.c. 419; C.R.I. P. Ry. Co. v. George, 145 Mo. l.c. 46; Mo. Pac. Ry. Co. v. Porter, 112 Mo. 361; Mo. Pac. Ry. Co. v. Chrystal, 25 Mo. 544; Palmer v. Harris Co., 69 S.W. 229.] The finding of the jury is amply supported therefore, if based upon no other element of damages. There is a well-recognized rule of appellate procedure which had its origin in the uniform integrity accorded to judgments of courts of competent jurisdiction, including those in condemnation proceedings, that an appellate court will not disturb a judgment awarding damages in the presence of substantial evidence in support of same. [Mallette v. St. Louis, 236 S.W. (Mo.) 63; St. Louis v. Railroad, 272 Mo. 80; St. Louis v. Semple; 199 S.W. (Mo.) 967; Railroad v. Brick Co., 198 Mo. l.c. 712; Zehner v. Milner 172 Ind. 493, 24 L.R.A. (N.S.) 383; Boyne City v. Anderson, 146 Mich. 328, 8 L.R.A. (N.S.) 306; Henderson v. Lexington, 132 Ky. 390.] The finding being on a question of fact will not be disturbed, although the evidence may be conflicting. [In re Thompson, 127 N.Y. 463, 14 L.R.A. 52.] IV. The instructions asked by the plaintiff and given by the court, supplemented by those given by the court on its own motion, clearly, fully and fairly submitted the issues under the facts and are all that the plaintiff was entitled to. Those asked by the plaintiff, and given, present in logical order the issues raised by the pleadings and leave no ground for conjecture as to the limit of the jury's duty. Those given by the court on its own motion correctly define the questions for the jury's determination in such a manner that the measure of their finding as to the damages and the limitations upon the same could not reasonably have been misinterpreted. It may be conceded that there was immaterial and irrelevant testimony admitted concerning speculative damages and others akin thereto which plaintiff had obligated itself to pay upon their infliction. *Page 674 This testimony, however, was not of such a nature as to influence the verdict in view of the court's unmistakable limitations as to the basis of the jury's finding. No one reading these instructions can fail to understand that the damages authorized to be found must be limited to the injury inflicted by the laying of the pipe line and the depreciation caused thereby to the residue of the land. The verdict itself, so far as inferences in regard thereto can be drawn from its words, bears evidence of the fact that it was based upon the authorized limitation. Instructions 9 and 10 asked for by the plaintiff were properly refused. Technically considered they did not include all of the land of either of the defendants. Waiving this defect, their subject-matter was covered by instructions given. No other errors assigned are of such magnitude as to require consideration. The judgment of the trial court is therefore affirmed.