Prairie Pipe Line Co. v. Shipp , 305 Mo. 663 ( 1924 )

The appellant is a corporation and engaged as a common carrier in the transportation of crude oil from the oil fields in Texas, Oklahoma and Kansas, by means of pipe lines laid underneath the surface of the ground, through this State to its refineries in Illinois and Indiana. On February 3, 1921, proceeding under Section 1791, Revised Statute 1919, appellant filed a petition in the Circuit Court of Randolph County, praying the condemnation of a right of way eight feet wide through a certain forty-acre tract of land belonging to Benjamin Shipp and Minnie S. Shipp, his wife, and another forty-acre tract belonging to L.B. Gibson and Zadee Pearl Gibson, his wife, in which to lay and construct its pipe line underneath the surface of the ground; said strip is specifically described, and lies south of and adjoining the southernmost pipe line which appellant has heretofore laid and now operates across said tracts of land.

The petition alleges (1) that plaintiff will lay said pipe lines in said strips or rights of way at least twenty inches underneath the surface, so as not to prevent or interfere with the cultivation or use of said strips by the defendants except while plaintiff is engaged in laying, removing or repairing its said pipe lines; (2) that it will so lay said pipe lines as not to interfere with the drainage of said strips of land or the lands adjacent or adjoining thereto; (3) that plaintiff will at no time fence or inclose said strips of land, but same shall be left open so the defendants and their grantees shall at all times have unobstructed passage over them and the right to cultivate, use and enjoy said strips as parts of their farms in connection therewith, except only when plaintiff shall be actually engaged in laying or repairing said pipe lines on said strips; (4) that for any damage that may be done to growing crops on said right of way from time to time, if any, by the laying of additional pipe lines on said rights of way or the repairing of pipe lines thereon, or by the escape of oil, if any, onto said right of way or land adjoining thereto, plaintiff will compensate defendants, their heirs, assigns, etc., therefor, promptly, and (5) that if in laying or constructing said pipe lines or making repairs thereto plaintiff should commit any damage to defendants' adjacent or adjoining land, it will promptly pay therefor.

The court, on March 5, 1921, appointed commissioners who filed their report assessing $150 damages in favor of Shipp and his wife and $250 in favor of L.B. Gibson and his wife, which sums were paid into court and plaintiff constructed its pipe lines over defendants' premises. The commissioners' report, however, was thereafter set aside, on written exceptions filed thereto by the defendants. On a trial before a jury on June 16, 1921, a verdict was found assessing the damages in favor of Shipp and his wife in the sum of $1000, and in favor of L.B. Gibson and his wife in the sum of $1400, and judgment was rendered accordingly, from, which plaintiff appealed to the Kansas City Court of Appeals. Following our ruling in city of Moberly v. Lotter, 266 Mo. 457, 181 S.W. 991, that an action of this character involves title to real estate, the Court of Appeals transferred the cause to this court (240 S.W. 473).

Shipp and his wife own a farm of one hundred and eighty acres which they bought in March, 1917. It is a mile and a quarter long, lying north and south. Approximately eighty acres lie north of the pipe line, and one hundred acres south of it. The eight-foot strip for the pipe line crossing the farm from east to west is 1277 feet long, and contains .235 of an acre. Three other pipe lines cross the farm. The first and second were laid in 1913 or 1914, and occupy a strip six or seven feet wide; the third was laid about March, 1917, and the last pipe line, the line laid in this eight-foot strip, was laid as close to the south line of the three pipes as it could be laid. It runs about fifty feet north of Shipp's barn.

The Gibson farm contains one hundred forty acres. They bought it early in the year 1920. The eight-foot strip for the pipe line is 2221 feet long and contains less than one-half an acre. This pipe line was laid immediately south of and adjoining the six- or seven-foot strip in which the three pipe lines were laid between the years 1913 and 1917. Gibson testified:

"I believe I had the field next to the road in corn one year. I do not remember that I raised any other crops than corn. I raised corn two years. Crossed all three pipe lines in raising corn. There were ridges there, and one day they stopped me five days from plowing on account of a leak. That place I should judge was about fifteen or twenty feet. Outside of that I had no trouble crossing. I got it worked down. I plowed across it with a breaking plow, after I disced it down. There were ridges there. I should judge it would be something about six inches high. I had oats on it myself, and this other fellow had oats on it. I still say it. If he didn't cut his oats somebody else did. They were cut with a binder. When oats were sown the binder cut across there. I guess he cut his wheat with a binder. I say, I guess about it, because I didn't do it. I am not guessing about the fact that wheat and oats were sown there, and I am not guessing about the fact that the binder went over it. I am not guessing about the fact that corn was planted and gathered. The very fact is that since I have known that land crops have grown on it, and that is true when Mr. McGruder owned it after the ridges were worked down. I told Mr. Jeffries they were worked down the first year. After you worked them down they interfered that year, but for crop growing I think it is more than a year. It does not grow a crop where they dig it up; it kills the ground for a year or two. It takes a space of about two feet to lay this line. They make a ditch a foot wide, lay the dirt on top of the bank, and they put it back after they lay the line."

Shipp testified: "I have been over other lands having pipe lines running over them. They cultivate across them. Some places they don't have any trouble getting from one part of the farm to the other. As a rule they get over them, plow and harrow over them generally."

I. It is insisted that the verdict assessing the damages at $1000 to the Shipp and $1400 to the Gibson farm, is grossly excessive and unreasonable.

The rules applicable to the assessment of damages in condemnation proceedings are very clearly stated in 20 Corpus Juris, 763, 767:

"Sec. 225. In condemnation proceedings a landowner is entitled to recover for all damages, present and prospective, which may be known or may reasonably be expected to result from the construction and maintenance of the improvement in a proper and legal manner, since there cannot be successive proceedings. In the absence of stipulation as to how the work is to be done, damages are assessed on the basis of the most injurious manner of construction which is reasonably possible. However, only such injuries as are capable of ascertainment at the time of the construction of the improvement should be considered.

"Sec. 226. The general rule is that damages, to be recoverable, must be direct and certain. Contingent, remote, or speculative damages, such as loss of speculative profits, will not be allowed.

"Sec. 227. Any fact which, by reason of the conditions upon which the property is taken, or the character of the improvement or the manner in which it is made, or the nature and situation of the land taken or of the residue, tends to ameliorate, counteract, diminish, mitigate or reduce the damages otherwise accruing to the landowner, may properly be considered in favor of the appropriator in the assessment of damages, although the benefit is not one necessarily accruing from the construction of the improvement. Thus, if the use sought to be appropriated is a restricted or limited use and one which will still reserve to the landowner some right in the property affected, such fact should be considered in assessing damages."

This is the rule in Missouri. In St. Louis Ry Co. v. Clark,121 Mo. 169, 197, we said:

"Upon an assessment by a jury, in case the road has already been constructed, it seems too plain to require more than a statement of the proposition, that the damage should be ascertained in view of the condition in which the unappropriated land is left by the use actually made of the easement. This in no sense constitutes a payment of damages in privileges, but is simply a reduction, or increase, as the case may be, of the damages on account of the manner of constructing the road.

"Now, we are unable to note a distinction between the supposed cases and the one under consideration. Neither is inconsistent with the previous complete appropriation of the land for the purpose of erecting, maintaining and operating a railroad thereon. Each affects only the damages to be allowed. No good reason can be seen why the condemning company should not have the right to announce, upon the trial, and have made a matter of record, if not done in its petition, the manner in which the right of way should be used; otherwise, the jury would have the right to make the award on the basis of the most injurious use to which the easement could be lawfully applied in the construction and operation of the road."

See also St. Louis Ry. Co. v. Knapp-Stout Co., 160 Mo. 396, 407, and St. Louis Ry. Co. v. Stock Yards, 120 Mo. 541 (10), 561.

The plaintiff sought to condemn an easement through the defendants' lands for the limited and restricted uses and purposes and on the terms and conditions expressly declared in the petition; that is, an eight-foot strip immediately south of and adjoining the strip in which the three pipe lines had already been laid. The plan reserved to the owners the full and uninterrupted use of the strip, save only when the plaintiff actually should be engaged in laying, repairing or reconstructing the line. It is expressly stipulated that the plaintiff shall not fence or inclose the strip, but leave it open for the free and unobstructed use of the landowner. The evidence shows that if the pipe is laid when the ground is wet, damage results to the soil; that in all cases there is a ridge which causes temporary inconvenience until it is worked down. These are proper elements to be considered in the assessments of damages, as also the interruptions and inconveniences that may result from patrolling the pipe lines and in making repairs thereon. But the farms are not cut up or divided, as when a public road or railroad is laid but or constructed through a tract of land.

In Calor Oil Gas Co. v. Franzell, 128 Ky. 715, 109 S.W. 328, 36 L.R.A. (N.S.) 456, 462, the court said: "In this strip a pipe line ten inches in diameter is to be buried and for this privilege the jury returned a verdict of $4000 in damages. It cannot be claimed that the laying of the pipe line injures in any way or damages the remainder of the farm. . . . This verdict is flagrantly excessive and out of all proportion to the real damages sustained."

In a learned treatise it is said: "The Legislature may determine what private property is needed for public purposes; that is a question of a political and legislative character. But when the taking has been ordered, then the question of compensation is judicial." [2 Elliott on Railroad (2 Ed.) sec. 983, citing Monongahela Ry. Co. v. United States, 148 U.S. 312; County Court v. Griswold, 58 Mo. 175, and City of Kansas v. Baird, 98 Mo. 215, 11 S.W. 243, and other cases.]

In the circumstances of this case, considering the restricted and limited easement appropriated, it is difficult to conceive how the resulting damages could equal or exceed the value of the strip in which the pipe is laid under the surface of the ground. We think the assessments are grossly and unreasonably excessive.

II. Over the objections and exceptions of the plaintiff, the court admitted evidence that in laying the pipe line plaintiff's employees did not confine themselves within the eight-foot strip, but trespassed on the adjoining lands and that oil sometimes leaked from the pipes and killed the soil.

As we have seen, the damages recoverable must be direct and certain, and such as may be known or may be reasonably expected to result from the construction and maintenance of the improvement in a proper and legal manner. Contingent, remote or speculative damages are not allowed. [20 C.J. 763, supra: Met. St. Ry. v. Walsh,197 Mo. 392, 407.] Compensation for trespasses on lands adjoining the strips appropriated are without the scope of the statute and would be remediable by independent actions, notwithstanding the condemnation and payment of the damages assessed. So, evidence that if oil leaks from the pipes it kills the soil, is speculative and outside the scope of the action.

In St. Louis Ry. Co. v. Mendonsa, 193 Mo. 518, 525, Judge Fox said: "But the commissioners in condemnation cannot take into consideration the possibility of the destruction of buildings that may be on the land at the time of the condemnation proceeding or that may be subsequently erected thereon, and speculate as to the damage that may be done to the owner by the destruction thereof, for the buildings may never be destroyed, and, therefore, that element of damage being purely speculative, the owner is afforded ample remedy under the statute to recover from the railroad any actual damage he may afterwards suffer by reason of the buildings on the land being afterwards destroyed, whenever such a loss occurs. Or, stated otherwise, the commissioners are authorized to take into account the depreciated value or salable value of the land caused by the risk to be apprehended from fires that may never occur. But for actual loss from the actual destruction of buildings or improvements on the land arising from fires communicated by locomotive engines, the owner is not entitled to recover against the railroad until and unless such loss actually occurs. And after loss the owner's remedy is under the statute or at the common law for the damage and loss which he will then have actually sustained." This was approved in Chicago Ry. Co v. Kemper, 256 Mo. 279, 295. [See 2 Elliott on Railroads (2 Ed.) sec. 991b.]

The learned trial court refused an instruction prayed by plaintiff that in arriving at a verdict they should not allow the defendants any sum by way of damages on account of the possibility or probability that at some future time plaintiff's pipe lines might break and oil escape upon their lands. We think this was error. No doubt the admission of the evidence, with the express sanction of the court, that oil might escape upon the defendants' lands, accounts for the extravagant verdict in this case.

III. The court refused instructions prayed by plaintiff that the jury should not allow the defendants any damages except as to the particular tracts described in the petition; in other words, the two forty-acre tracts over which the easement was appropriated.

In Chicago Ry. Co. v. Baker, 102 Mo. 553, the railroad ran diagonally through a farm of five hundred forty acres. Judge BLACK there said at page 559: "The damages to be allowed in cases like this, where the railroad appropriates a part of a body of land, are such as the landowner suffers to the body of land taken as a whole. The damages are not confined to the small government subdivisions over which the road may pass; and the corporation exercising the right of eminent domain cannot avoid payment of the damages done to the entire farm by selecting out and describing in his petition the forty-acre tracts through which the road may be located."

And in St. Joseph Ry. Co. v. Shambaugh, 106 Mo. 557, 569: "The inconvenience in going from one to another part of the farm, arising from the road, fences and gates, is, of course, a proper element of damages."

Here, there is no real or actual severance of either farm. The conditions of the appropriation forbid fencing of the strip by the plaintiff. It is required to be left open and uninclosed so as not to interfere with or obstruct the cultivation of either farm as an entire tract. The evidence adduced by the defendants shows that no other portion of either farm is affected or rendered less useful by reason of the laying of the pipe lines. Hence the court erred in the refusal of these instructions.

The court also erred in refusing plaintiff's instruction numbered 5, which reads:

The court instructs the jury that by the condemnation and appropriation of the strip of land across the defendant's farm described in the plaintiff's petition, to be used by the plaintiff as a right of way upon which to lay, construct, maintain and operate its pipe lines in the manner stated and described in said petition, the defendant will not be deprived of the ownership of said strips of land after the same has been condemned and appropriated, nor will the defendants be deprived of the possession of the same with the full right to cultivate and use the said right of way, but on the contrary the defendants will retain the possession of the same with the full right to cultivate and use the said right of way for any purpose and in any manner as he sees fit, subject only to the right of the plaintiff to enter upon said right of way for the purpose of laying, constructing, maintaining, repairing and operating its pipe lines on said right of way in the manner provided in plaintiff's petition."

IV. Appellant insists that the court erred in admitting evidence on the question of the market value of the defendants' farms before and after the pipe lines were laid. Gibson testified that he was acquainted with places where oil had escaped from the pipes and gotten on the ground. He continued: "Well, sir, it kills the ground for two or three years and then it makes a muddy hole and kinda makes a soft place and you can't go through it for ever so long — it is not only one place but several places; these joints are likely to move anywhere and they go in and correct it and if they have any oil they take it away from the line and burn it; and where they burn this oil will kill the ground just the same as where the oil runs over it." He testified that he was acquainted with the market value of real estate in the neighborhood of his and the Shipp farms. When asked what was the reasonable market value of these farms on March 2, 1921, with and without this pipe line through them, plaintiff's counsel objected that the witness had not shown himself qualified. The objection was overruled and an exception saved. Gibson's opinion was that his farm was worth $150 per acre without the pipe line and $100 per acre with it; that the Shipp farm was worth $110 per acre without the pipe line and $75 to $80 per acre with it.

Shipp, over plaintiff's objection, testified that the market value of his farm in 1913, without this pipe line, was $35 to $40 per acre; in 1916, $55 to $60 per acre; in 1918, $70 to $75 per acre, and in March, 1921, was $110 to $115 per acre "without this eight-foot strip and right of way for the pipe lines," and with the pipe lines, $74 or $80 per acre.

The qualification of a witness is a preliminary question for the court. "In most instances, an owner is deemed qualified by that relationship to testify to the value of common classes of property." [22 C.J. 578, sec. 682.]

In Wabash Railroad Co. v. Cockrell, 192 S.W. (Mo.) 443, a condemnation proceeding, after reviewing a number of decisions, Roy, C., at page 446, said. "Thus we see that it has been with some reluctance that the present rule has been adopted that qualified witnesses `may, in connection with the facts to which they testify, state their opinions as to the amount of damages to the property.'"

In that case the admission of the opinion of the witnesses on the question of the market value of the strip appropriated was held to be reversible error, because it was apparent from the facts stated by the witnesses that the opinion was based on a false premise. In the instant case, it is apparent that the opinion of the witness as to the market value was based, in part at least, on the possible or probable leakage of oil from the pipes and the resulting damages. This might or might not happen and, as an element of damage, was purely speculative and, as we have seen, could not be considered by the jury in the assessment of damages. If leakage should occur and damage result, the remedy would be by an independent action.

What we have here said applies equally to the admission of opinion evidence of other witnesses. Other errors are complained of in the admission and exclusion of evidence and in the giving and refusal of instructions, but we need not consider them.