Opinion
No. 28001.
February 20, 1951.
APPEAL FROM THE CIRCUIT COURT, MADISON COUNTY, NORWIN D. HOUSER, J.
Sullivan, Finley Lucas and Ralph T. Finely, St. Louis, Henri Sursa, Fredericktown (Paul B. Martin, St. Louis, of counsel), for appellant.
Melvin Englehart, Fredericktown, for respondents.
This is a proceeding brought by the plaintiff, Mississippi River Fuel Corporation, against defendants, Truman Finely and Lucille Finley, to condemn a right of way for a pipe line across defendants' land. Upon a hearing, on August 6, 1949, the Court entered an order of condemnation and appointed three commissioners to assess the damages, if any, sustained by the defendants. The commissioners qualified and made their report on August 11, 1949, assessing damages in favor of the defendants in the sum of $1,500. Thereafter, plaintiff paid the amount of said award into the registry of the court for the use of defendants as required by law.
On August 17, 1949, plaintiff filed exceptions to the report of the commissioners. Thereafter, a trial was had before the court and a jury which resulted in a verdict in favor of defendants in the sum of $1,500. From this judgment, plaintiff has appealed.
The appellant, Mississippi River Fuel Corporation, is a Delaware Corporation engaged in the business of transportation and sale of natural gas in interstate commerce. Said company owns pipe lines extending from Monroe, Louisiana, through the states of Louisiana, Arkansas, Missouri, and Illinois, through which natural gas is transported and sold to public utilities for resale in the metropolitan area of the City of St. Louis, Missouri, and elsewhere in the states of Missouri, Illinois and Arkansas. The appellant's pipe lines are laid underneath the surface of the ground.
Defendants are husband and wife who own five contiguous lots, being lots 11 to 15 inclusive, in Millvale Subdivision in Madison County, Missouri, and a small parcel of land between said lots and the south line of the right of way of the Missouri Pacific Railroad. The lots are each 180 feet long and 60 feet wide. On one of these lots, and located about 44 feet from the pipe line, is plaintiff's dwelling house; and on the 75 feet condemned is located a drilled well 116 feet deep. Also located on the right of way was a chicken house, worth $100 according to Mr. Finley's testimony. Other witnesses placed a value of $50 on the chicken house.
Prior to the trial below, plaintiff filed an amended petition making a reservation in favor of defendants with respect to the well and chicken house, in which it was averred that in the construction, maintenance or repair of the pipe line, plaintiff would not injure or destroy the well, nor injure or destroy the chicken house. It was further averred that if necessary to prevent injury to said chicken house, the plaintiff would move and reconstruct same and leave it and said well in as good condition as they were before the construction of said pipe line. In said reservation it was further convenanted that if blasting became necessary, plaintiff would protect the improvements on said land by placing timbers or matting over the blasting, and restore and repair the well, chicken house and dwelling if damaged by such blasting, or if injured in the construction or repair of said pipe line.
The width of said right of way was 75 feet, and extended diagonally across lots 12 and 13, for a total length of 240.5 feet, or approximately 14 1/2 rods. The total area of the right of way condemned was about one third of an acre. Certain reservations were made in the petition in favor of defendants, viz., (1) that said pipe line would be placed at least 30 inches beneath the surface of the ground; (2) that said pipe line would be constructed so as not to interfere with or prevent drainage; (3) that plaintiff would not fence said right of way so that defendants would have free and unobstructed passage over and upon the right of way, and that defendants would have the right to graze, cultivate, use and enjoy said right of way as a part of their land, except only as such use, cultivation and enjoyment by said defendants should necessarily be interrupted by plaintiff in laying, removing, repairing and maintaining said pipe line.
There was an old pipe line and telephone line in connection therewith on defendants' property, constructed by plaintiff under a grant in 1929. The old pipe line is about fifty feet from the new pipe line. Under the 1929 grant, plaintiff was given the right to construct additional lines on the 16 1/2 foot right of way upon payment of $1 per rod, plus construction damages.
At the trial, Truman Finley first testified that he owned lots 11 to 18 inclusive; that he had purchased the property about a year prior to the trial; that the clear market value of the property prior to the time the pipe line was constructed was about $6,000, and the clear market value after the pipe line was constructed was $4,500.
On cross-examination of Mr. Finely it was brought out that his property did not consist of eight lots, as he testified to on direct examination. At first he testified that he "believed" he owned lots 11 to 18, then later stated that he owned only lots 11 to 17 inclusive. Subsequently, he testified that the property in question was the only property he had ever purchased.
Thereafter, plaintiff, as a part of its case, introduced in evidence the defendants' deed to this property, and from this deed it appears that defendants owned only lots 11 to 15 inclusive, and the land lying between said lots and the railroad right of way.
Ben Matthews testified that the property, that is, the eight lots with improvements, and the land between said lots and the railroad, was worth $6,000 before the pipe line was constructed, and $4,500 after the construction of the pipe line. He valued the lots at $650 each. In his testimony he considered as a part of the lots the land lying between said lots and the railroad right of way. He further testified that he placed a value of $800 on the house, which was located on lot No. 11.
Mr. L. D. Whitener, testifying for defendants, stated:
"Q. Now then, based upon your observations as to the property before the pipe line was constructed and your knowledge of the value of property, are you able at this time to express an opinion as to the reasonable market value of the property of Mr. and Mrs. Truman Finley prior to the time that the pipe line was constructed, immediately prior to the time it was constructed? Are you able to express an opinion? A. That is including all the lots? The value of all of his property?
"Q. Prior to the time it was constructed. A. That is eight lots, isn't it?
"Q. 11 to 18 inclusive, according to the evidence here. A. Well, that property, in my opinion, would be worth fifty-five hundred or six thousand.
* * * * * *
"Q. If you know the value, state what, in your opinion was the clear market value of it immediately after?
* * * * * *
"The Court: The question is, what was the clear reasonable market value of the whole property immediately after the installation of the pipe line? A. Four thousand dollars."
Frank Schulte testified for defendants as follows:
"Q. Tell us in dollars and cents, if you can, what you think the value of the property was, the whole property just before the pipe line was constructed. A. Between five and six thousand dollars.
* * * * * *
"Q. The question is, could you express an opinion as to the value of the whole property now, after the pipe line had been constructed?
* * * * * *
"A. In my opinion it would be around forty-five hundred dollars."
On cross-examination, Mr. Schulte testified that if he wanted to build on those lots he would give around $500 or $600 a piece for them. The transcript then shows the witness testified as follows:
"Q. Assuming that there are eight lots that you have been testifying to, that would be four thousand dollars for the land there? Is that right? A. Yes.
"Q. And then you would leave Mr. Finley the difference between the four thousand, five thousand to six thousand dollars for the house? Is that right? A. Yes, sir."
Mr. M. W. Parkin, who testified for the plaintiff, stated: "* * * he would have lost, in my opinion, the value of two lots at $150 each, three hundred dollars. He lost a poultry house which I believe he said was worth fifty dollars. * * * I doubt if it had any salvage value. I am assuming that it was totally destroyed, because I think if you tore it down it wouldn't have had but mighty little salvage in it. I am trying to give you the benefit of the full value of it. * * * And further than that, I know of my own knowledge no further damage."
Mr. H. B. Lowther, testifying on behalf of plaintiff, stated that, because of grading, the surface of defendants' property was in better shape than it was before the pipe was constructed. When asked to give an opinion as to the damage, the witness stated:
"They moved off of the right of way a chicken house that is probably worth forty or fifty dollars that hasn't been replaced. It is still setting on the side of the right of way on the property, but never has been replaced * * * it might be a little inconvenient getting across that ditch the pipe line backfilled if there was a rainy time until it settled this winter.
"Q. What, in your opinion, would be the reasonable market value of this property after the construction of the pipe line, taking into consideration all the elements you think would affect its value? A. I wouldn't consider any decrease in the value of it.
"Q. You think it would sell as well with it? A. Yes, sir.
"Q. In the condition it is now in? A. Yes."
Defendants tried the case on the theory that the well on their premises was destroyed, and that the cost of drilling a new well was a proper element to be considered in estimating their damage.
There was no evidence in the record that defendants' well was destroyed. The most that can be said is that there was some testimony from which it might be found that the well suffered some damage, possibly to the casing of the well which caused the water level to drop considerably. This testimony was given by defendant Truman Finley. He testified that the well was a drilled well sixteen feet deep and was a "casing" well; that before the pipe line was constructed the water in the well stood at about five or six feet from the top of the well; that since the pipe line was constructed it requires 70 or 75 feet of rope to reach the water; and that the well was around fifteen or sixteen feet from the pipe line. Said defendant further testified:
"Q. At the time that pipe was put in there, did you have any knowledge it was necessary for the construction of it to blast the ground around there? A. Yes. I think they put a case and a half of dynamite in it. * * * Right by the well.
"Q. How soon after this blasting took place did you notice a difference in the amount of water in the well? A. Well, we could tell it in the next couple or three days after they shot it.
"Q. Is it still at the point where it takes 75 or 80 feet of rope to reach the water? A. That is right."
All of defendants' witnesses in estimating the damage to defendants' property assumed and took into consideration the fact that the well was destroyed or damaged. In further support of the theory that total destruction of the well was a proper element to be considered in estimating the value of the property, defendants offered evidence, over plaintiff's objection, that the cost of digging a new well was $2.50 a foot. This testimony was given by Truman Finley and appears in the transcript, as follows:
"Q. Was that what we call a drilled well? A. That is right.
"Q. Do you know what the reasonable cost per foot is to drill a well like that? A. Well, I would say around —
"Mr. Finley. I don't think he proved the blasting did any damage to the well. * * There is no proof that the blasting did it.
"The Court. It is up to the jury.
"A. Well, I don't think we can get a well dug at less than $2.50 a foot.
"Q. Did you say that was a casing well? A. Yes.
"Q. Do you know what casing costs per foot or section? A. No. I don't."
Ben Matthews testified:
"Q. Do you know about what the general charge would be, the only general every day price for today to drill a well in the nature of soil where this well was located? A. Well, I know a fellow said if it is a dirt well he would drill me a well for $2.50 a foot.
"Q. Was that a well driller? A. Yes, sir."
Defendants offered no evidence as to the cost of casing for a well. Plaintiff's witness Lowther testified that during the trial he measured the depth of the water with an engineer's steel tape and found that the water stood about eleven feet from the surface.
There was testimony by defendants' witnesses that the two lots 12 and 13 had no value for building purposes after the pipe line was constructed, and that the existence of the pipe line on the two lots affected the value of the other lots. It further appears that all of defendants' lots did have value for farming purposes.
Truman Finley testified that he purchased the property a little over a year before the trial. When asked what he paid for the property, Mr. Finley answered: "Well, is that a fair question?" And, when instructed by his attorney to answer the question, he stated that he did not know because he traded live stock in for the property. He also stated he did not know how many revenue stamps were put on the deed; nor did he know the agreed consideration for the property. He stated that the stock, consisting of cows and hogs, which he put in as part of the purchase price, had a market value; however, he did not know what the agreed value was, but stated it was not less than the stock was worth. Defendants' evidence disclosed that there were $4.40 worth of revenue stamps on the deed — indicating a consideration of $4,000 for the property.
Truman Finley further testified that he did not know what the house cost or when it was built. He stated that his valuation of the property was $6,000 — the amount he had been offered for it. He further stated that no sale had been made on that offer.
Appellant contends that the verdict is not supported by substantial evidence, but is based upon speculation and conjecture. This point, though not preserved by a motion for directed verdict, was raised by appellant in its motion for new trial.
It clearly appears from the record that respondent Finley and his witnesses appraised and included in their valuations lots which the record shows respondents did not own. The deed from William E. Yancey and wife to respondents conveyed only lots 11 to 15 inclusive of Millvale Subdivision, and the land between said lots and the railroad right of way, together with two entirely detached tracts. Lots 16, 17, and 18 did not belong to respondents. However, in estimating the damage, respondents presented evidence of the value of lots 11 to 18 inclusive, before and after the construction of the pipe line.
No evidence was introduced from which the damage to the land actually owned by respondents could be reasonably ascertained. It follows that the verdict of the jury finds no support in the evidence. In our opinion, permitting this judgment to stand, when there is no evidence to support it, presents a plain error affecting substantial rights, causing manifest injustice, which we will consider under the authority given us by Rule 3.27 of the Supreme Court Rules. We believe the trial court should have sustained appellant's motion for new trial, on the ground that there was no evidence to sustain the verdict in this case.
The court also erred in permitting respondents to introduce evidence of the cost of digging a new well. The cost of digging a new well would only be relevant in the event the well in question was totally destroyed. There was no evidence that respondents' well was totally destroyed. Therefore, the cost of digging a new well was not a proper element to be considered by the jury in estimating the total damage to respondents' property. This evidence was not harmless, but was highly prejudicial. Each of respondents' witnesses testified that in estimating the difference in value of the property before and after the construction of the pipe line they took into consideration the fact that the well was damaged. Witness Schulte, who testified for respondents, stated that in estimating respondents' total damage he included "about what it would cost to drill a new well." The effect of this evidence would tend to induce the jury to include as an element of damage matters not properly to be considered.
Appellant also claims that the court erred in failing and refusing to strike out the testimony of Ben Matthews and L. D. Whitener, on the ground that it appears from their testimony that in estimating the value of the respondents' property they gave no consideration to the fact that a pipe line built in 1929 already existed across the property. There does appear some inconsistency in the testimony of these witnesses in this respect. They valued all the lots equally, including the lots crossed by the old pipe line, and then stated that the construction of the new pipe line destroyed the value of the lots for building purposes. This inconsistency, however, seems to us to be a matter affecting the weight to be given to the testimony of the witnesses, rather than to the admissibility of said testimony.
Appellant's final assignment of error is that the court erred in refusing to sustain the motion to strike out the testimony of Truman Finley concerning the value of his property.
After Mr. Finley testified on direct examination that the market value of the property before the taking was $6,000, and after the construction of the pipe line its value was about $4,500, it developed on cross-examination that he did not know how long his house had been built, or what it cost, and that he based his valuation of the property, before the taking, on what he had been offered for it. Thereupon, counsel for appellant made the following motion, and the court ruled as follows:
"Mr. Finley: I move to strike the statement of the witness that the value of this was $6,000 on the ground that he stated he does not know the value of the improvements and the cost, and also stated that he bases his value on what he had been offered or something of that kind.
"The Court: The Court will let it stay in the record."
The matters brought out on cross-examination merely went to the weight to be given Mr. Finley's estimate of value, and was for the jury's consideration. It did not destroy the probative value of the testimony given on direct examination. The Court, therefore, did not err in its ruling.
For the reasons stated, we believe that the judgment in this case should be reversed and the cause remanded for a new trial. It is so ordered.
McCULLEN and BENNICK, JJ., concur.