This аppeal arises out of proceedings brought by Union Electric Company to obtain title to certain land by condemnation to construct electric generating facilities.
Union Electric is a public utility authorized to engage in the manufacture and transmission of electric current for light, heat and power, and for the sale thereof to the public. It obtained the approval of the Missouri Public Service Commission to build, operate and maintain in Reynolds County, Missouri, additional electric generating facilities comprising “a high head pumped storage electric generating station, consisting of five major components, to-wit: a dam, a lower pool, an upper pool, a water way, and a pumping and generating stations, together with necessary transmission lines leading therefrom.” Union Electric proposes to construct the dam across the East Fork of Black River which appellants assert, and Union Electric does not deny, is a nonnavigable stream. This dam will form the lower pool which will have an area of approximately 370 acres, and a substantial portion of the 240 acre tract of appellants’ land which Union Electric seeks to condemn will be flooded thereby. The upper pool with an area of about 50 acres will be constructed about a mile away on top of Prof-fit Mountain at a substantially higher level than the lower pool. A tunnel 6,300 feet in length will lead from the upper pool to a power plant adjacent to the East Fork of Black River, but which is not located at or near to the dam forming the lower pool. When the project is completed electric energy from steam generating facilities in St. Louis will be used during periods when the use of electricty is at a minimum to pump water from the lower pool to the upper pool. *859 When peak loads occur the water will be permitted to flow through the tunnel from the upper pool to the lower pool and generate electric power at the power plant. The entire project will be operated electronically by controls in St. Louis.
Appellants first contend on this appeal that Union Electric does not possess the power or authority to condemn their land, or any part of it, pursuant to Chapter 236 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise stated) and that the limited power of eminent domain therein granted is exclusive to what they contend is a general power of eminent domain contained in Chapter 523. Both Chapters grant the power of eminent domain in certain factual situations, and each Chapter as now written sets forth the procedure to exercise that power. However, Civil Rule 86, V.A.M.R., now governs the procedure to be followed in the exercise of the power of eminent domain granted by either Chapter. See Civil Rule 86.01, V.A.M.R.
What is now Chapter 236, commonly referred to as the mill dam act, was first enacted in 1822, see Vol. I, Territorial Laws of Missouri, p. 948, but it then pertained to the construction of a dam and of water, grist, and saw mills on a watercourse. By 1835 the application of the act had been limited to a “water course not being a navigable stream.” R.S.1835, p. 406, § 1. In 1905, Laws 1905, p. 232, apparently as the result of the ruling in Southwest Missouri Light Co. v. Scheurich,
We shall now look to Chapter 523. It apparently represents a consolidation of various grants of the power of eminent domain to companies organized for variоus *860 purposes. See Laws of Missouri 1851, p. 259 § 8, pertaining to plank roads and macadamized roads; Laws of Missouri 1853, p. 128, §§ 13 and 14, pertaining to railroads; Laws of Missouri 1866, p. 47, pertaining to land taken for telegraph, road and railroad purposes; and Laws of Missouri 1919, p. 207 pertaining to oil, pipeline or gas corporations. In 1915 the power of eminent domain was granted to “any electrical corporation organized for the manufacture or transmission of electric current for light, heat or рower.” Laws of Missouri 1915, p. 227. Insofar as applicable to the grant of the power of eminent domain to electric companies, Section 523.-010 now provides: “In case land, or other property is sought to be appropriated by * * * any electrical corporation organized for the manufacture or transmission of electric current for light, heat or power, including the construction (when that is the case) of necessary dams and appurtenant canals, flumes, tunnels and tailraces and including the erection (when that is the case) of necessary electric steam powerhouses, hydroelectric powerhouses and electric substations * * and the corporation and the owners cannot agree upon the proper compensation, then certain procedure is to be followed, which, however, is now subject to Civil Rule 86, V.A.M.R.
It is thus apparent that there are two statutes relating .to the power of eminent domain of electric companies. These provisions must be read in pari materia and, if possible, effect given to each clause and provision. Davenport v. Teeters, Mo.App.,
Appellants next contend that Union Electric’s “petition showed on its face that land was being taken for unauthorized purposes, to wit: land taken for ‘security purposes,’ and land taken for ‘necessary protection.’ ” The petition alleged that it was necessary that Union Electric acquire all of appellants’ land “for impounding water thereon, flooding the said real estate, аnd the protection of the highhead pumped storage electric generating stations, including all the major components thereof, and the necessary security measures therefor.” The evidence shows that the lower pool forms a lake roughly in the shape of a “V”, and that appellants’ land lies inside the “V” at the middle, and that approximately one half of it will actually be flooded. Appellants’ land is near the center of the entire project and lies directly betweеn the upper and lower pools. It is completely surrounded by land previously acquired by Union Electric for the project. Over that portion of appellants’ land not actually flooded there will be constructed a 345 KV transmission line, and a communication or control cable carrying 16 to 20 circuits which will be used in the remote control operation of the facilities.
Appellants assert in their brief that they do not contend that any land is being taken in excess of that necessary for thе authorized public purposes, but that this “is a case where land is taken for purposes not included in the statutes” because there is no power to condemn for “protection” of the authorized installations or for the “necessary security measures.”
The protection and security of a 50-million dollar remote controlled generating facility is just as much an essential part of the overall project as any other feature thereof. The project admittedly is for a public use, and the power of eminent domain extends to the acquisition of the necessary land for each and every essential part of the project. The power to locate the project and to determine the extent of land necessary for economical and proper construction is vested by legislative act in the sound discretion of Union Electric uncontrolled by the courts except as to the issues of fraud, bad faith, or an arbitrary and unwarranted abuse of discretion; issues which are not in this case. State ex rel. State Highway Commission v. Curtis,
Appellants next assert that the tria./ court erred in “sustaining the objection to the admission of evidence of mining, mineral exploration and development * * * within the area in which [their] lands were locаted * * Mr. Charles Jones was asked whether in 1952 when he purchased the land sought to be condemned “there was any evidence of old mining activities near that property.” An objection was sustained and an offer of proof was made that “there was at that time old lead mining shafts [50 years old or older] about a quarter of a mile southeast of this property and that there was old iron mining activity [12 or 15 years old] about a mile southwest of this property, and at that time there was no evidence of any mining activity or drilling or prospecting.” Subsequently, the court rejected a second offer of proof that “there was on the date of the taking the business of extensive drilling and exploration for minerals, principally lead, that this business was a growing influence on values, that there was located or is located on the date of the taking a brand new town of Viburnum only about 20 to 25 miles northwest of the property, that there is serving this town a new railroad spur or track leading from the main rail lines to *862 this town. The princiрal business activity of this town at this time is the construction of mine shafts preparatory to the development of a large lead mine.”
Where the entire tract is being taken, as in this case, the just compensation is measured by the reasonable market value of the land in its condition on the day of the appropriation. State ex rel. State Highway Commission v. Howald, Mo.,
Appellants next assert that the trial court erred in excluding the testimony of James Sutterfield as to the price he received for his farm about seven months prior to the condemnation of appellants’ land. Sutterfield testified out of the presence of the jury that his farm was located about 20 miles from appellants’ land and that he sold it to the American Metal Smelting Company “for mining prtrposes.” Evidence of the sale price of property similar to that involved generally is admissible to aid the triers of fact in determining the compensation to which the owner is entitled for the taking of his property. The admissibility of such evidence depends upon the nearness of the sale in point of time and the proximity of the property, of the similarity in location, and in the use to which the property is adaptable. In re Armory Site in Kansas City, supra. Here, there was no showing that appellants’ land was adaptable for mining, yet the Sutter-field land was sold for mining purposes. It is incumbent on the party offering evidence of the sale of other land to show by offer of proof, or otherwise, that it is admissible. Here, appellants’ offer of proof showed it was inadmissible. There was no error in rejecting it.
The date of the hearing on the petition was set for Novеmber 28, 1960, at the Reynolds County Courthouse at Centerville, Missouri. Appellants employed as their counsel Mr. J. Glennon McKenna of St. Louis. On November 22, counsel for Union Electric called Mr. McKenna and asked if he would be ready to proceed with the case on November 28, and he replied that either he or Mr. William H. Bruce, Jr., an attorney at Ellington, Missouri, would be there. On November 28, Mr. McKenna did not appear, but appellants and Mr. Bruce were present at the appointed time. No pleadings wеre filed. Mr. Bruce made an oral request for a continuance to which Union Electric did not consent, and after a conference with appellants he declined to file a written request for a continuance. The trial court directed the hearing to proceed. Mr. Bruce participated in that hearing, cross-examined Union Electric’s wit *863 nesses and presented testimony on behalf of appellants.
Appellants now contend that the trial court abused its discretion in arbitrarily proceeding with the hearing on the petition without the presenсe of their attorney who was absent through no fault of theirs. This contention is without merit. Civil Rule 65.03, V.A.M.R., provides that every application for a continuance shall, unless the adverse party consent that it be made orally in open court, be made by motion in writing, accompanied by the affidavit of the applicant, or of some other credible person, setting forth the facts on which the application is founded. Appellants declined for reasons of their own to make this application after consultation with Mr. Bruce who was then acting as their attorney. See Savings Finance Corporation v. Blair, Mo.App.,
At the time Mr. Bruce withdrew as counsel he filed a motion requesting that a fee for services rendered be allowed as a lien on the award rеceived by appellants. The court did allow such a lien in a modest amount. Appellants now assert that the court erred in doing so without a hearing, and because the motion shows on its face that Mr. Bruce was employed by Mr. Mc-Kenna, and if he is entitled to a fee he must look to him.
First, as to the hearing. Appellants made no request for a hearing, and the motion was pending at the time of the hearing on appellants’ motion to set aside the proceedings which was filed after the commissioners made their report and before the jury trial on the issue of damages. At that hearing Mr. Bruce and appellants testified concerning the arrangements for his employment and the services he rendered. In addition, the transcript of the testimony at the hearing was introduced in evidence. Appellants now point out not one item of evidence on the issue raised by Mr. Bruce’s motion which they claim they were unable to present to the court. Second, as to the allegations of the motion. We think that the motion did allege that Mr. Bruce was employed to act for appellants, and the evidence, in our opinion, conclusively shows he rendered legal service to appellants at their request. In that event, a promise to pay the reasonable value of the services is implied in the absence of an express contract. McCleary v. Bratton, Mo.App.,
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All of the Judges concur.
On Motion.
Appellants point out that in the comparison of the provisions of Chapter 236 and Chapter 523 we incorrectly stated that Section 236.160 provides that if the circuit court found that the mansion house and other named properties “are to be flooded” *864 it was authorized to take certain action, whereas in fact Section 236.160 uses the words “will not he overflowed.” The opinion as originally handed down is modified and that portion thereof has been reworded to recite correctly the provisions of Section 236.160. However, appellants’ contention that because of this we erred in concluding that Chapter 523 was applicable is without merit.
Appellants next assert that we erred in stating that the evidence of abandoned mines and of mining activity was offered on the theory that the jury could infer therefrom that there were minerals on their land. They contend that the evidence was offered for a different purpose, and that “mining activity, drilling and prospecting, in an area, are simply business activities affecting the demand for real estate, (principally underground rights) and any increase in the demand would be a fact from which the jury might infer a market value on the day of the taking.” They argue that “regardless of whether there are any minerals under the particular land, they [the above activities] increase the market value of the mineral interest.” Appellants admit that “The market value is, of course in this case, based upon pure speculation.” They then assert that this speculative market value “is a definite and positive fact and can be determined with reasonable certainty on any day even though based upon speculation.” We do not agree with this last assertion.
The case upon which appellants principally rely, Union Electric Company of Missouri v. McNulty, Mo.,
The opinion is modified as above stated, and appellants’ motion for rehearing or to transfer to the court en banc is overruled.