State ex rel. State Highway Com'n v. Young

• Decision Date: 30 December 1929
• Docket Number: 27689
• Parties: The State ex rel. State Highway Commission, Appellant, v. George H. Young et al
• Court: Missouri Supreme Court

23 S.W.2d 130

324 Mo. 277

The State ex rel. State Highway Commission, Appellant, v. George H. Young et al

No. 27689

Supreme Court of Missouri

December 30, 1929

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.

Reversed and remanded.

B F. Boyer for appellant.

(1) The court erred in allowing the witnesses for defendant landowners to restrict their testimony as to the damages suffered to those accruing to the eighty-acre tract across which the road ran out of the farm of 698 acres owned by the defendants. Glendenning v. Stahley, 173 Ind. 674, 91 N.E. 234; Elliott on Roads & Streets (4 Ed.) sec. 280; Chicago, Milwaukee & St. Paul Railroad v. Baker, 102 Mo. 553; Elliott on Railroads (3 Ed.) sec. 1257; Sutherland on Damages (4 Ed.) sec. 1088; Railway v. Aubuchon, 199 Mo. 368; Railway Co. v. Waldo, 70 Mo. 629; Union Elevator Co. v. Ry. Co., 135 Mo. 353; K C. etc., Ry. Co. v. Norcross, 137 Mo. 415; Art. 2, sec. 21, Mo. Constitution; Sec. 21, Centennial Road Law, Laws 1932, 1st Ex. Sess., p. 131. (2) The court erred in giving at the defendants' request, instructions 1, 2 and 3, for the reason that the defendants had failed to sustain the burden of proof as to damages to the whole tract owned by them, proving instead damages to only eighty acres across which the road ran, for which reason they were not entitled to go to the jury. Ry. Co. v. Blechle, 234 Mo. 48; Lane v. Nunn, 211 Mo. 280. (3) The court erred in refusing to give plaintiff's Instruction 6, which correctly stated the law of special and general benefits. Rives v. Columbia, 80 Mo.App. 173; Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 175; Ripkey v. Binns, 264 Mo. 505; St. Louis, Oak Hill & C. Ry. v. fowler, 132 Mo. 670; Ry. Co. v. McElroy, 161 Mo. 554. (4) The court erred in refusing plaintiff's Instruction 5, which correctly stated the law of special benefits. Goodsell v. Taylor, 41 Minn. 207. 4 L. R. A. 673; New Albany Woolen Mills v. Myers, 43 Mo.App. 124; Gahiro v. Realty & Construction Co., 115 N.Y.S. 334; Ladieu v. Sherwood etc. Co., 109 N.Y.S. 479. (5) The court erred in giving defendants' Instruction 1 for the reason that said instruction is an erroneous statement of the law on special benefits. So. Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 175; Rives v. Columbia, 80 Mo.App. 173; Ripkey v. Binns, 264 Mo. 514; St. Louis, Oak Hill & C. Ry. Co. v. Fowler, 142 Mo. 670; 2 Nichols on Eminent Domain (2 Ed.) sec. 247; Newby v. Platte County, 25 Mo. 258. (6) The verdict shows on its face that the jury considered merely the testimony offered by the defendants as to the damage to the eighty-acre tract of land owned by the defendants, and further shows that the jury did not consider the fact that the defendants owned other lands contiguous to said eighty-acre tract and that said eighty acres was but a part of defendants' farm of 698 acres, which whole farm might have been benefited under the evidence. Ry. Co. v. Aubuchon, 191 Mo. 352; Ry. Co. v. Baker, 102 Mo. 559; Sutherland on Damages (4 Ed.) sec. 1088

James & James for respondents.

(1) The court did not err in permitting the respondents to offer evidence as to the damage done to the eighty-acre tract of land through which the road runs in a diagonal direction. St. Louis, Oak Hill & C. Ry. Co. v. Fowler, 113 Mo. 469. If the landowner is willing to base his claim for damages merely on a part of his land instead of the entire tract, certainly the condemnor can have no ground to complain. After the landowner has proven his damages the condemnor has the right to offer evidence showing special benefits, not only to each tract or subdivision, but to all the owner's land, which special benefits are deductible from the landowner's damages. Appellant in his brief complains that respondents restricted their damages to the eighty-acre Barnes tract, but it is apparent from the record that this was the portion of respondents' land that was particularly damaged. In all the cases cited and quoted from by appellant, it is held rightly that the landowner is entitled to compensation for damages to all the lands which are actually damaged, but no more. (2) Plaintiff made no objection to defendants' evidence as to damages sustained to the eighty-acre tract until a large part of it was already in. Defendants' first witness, Don Young, testified at length as to the damage to the eighty-acre tract without objection, and not until after plaintiff had questioned him on cross-examination at the close of his evidence, did not plaintiff make any objection, and then moved to strike it out. This is too late. State v. Sykes, 191 Mo. 79; State v. Forsha. 190 Mo. 326; Boulicalt v. Glass Co., 283 Mo. 237; Gieske v. Redemeyer, 224 S.W. 94. (3) Defendants' instructions 1, 2 and 3, properly declare the law in this case. McReynolds v. Ry. Co., 110 Mo. 487; K. C. & N. C. Ry. Co. v. Shoemaker, 160 Mo. 425. No demurrer was asked and appellant cannot complain. Judge v. Pebl, 240 S.W. 278; Hodge v. Ramsey, 216 S.W. 568; McCracken v. Schuster, 179 S.W. 757. He cannot say that there was no evidence on this matter to submit to the jury. (4) The court did not err in refusing Instruction 6 asked by the plaintiff. The matter of general benefits pertains to all the lands in the neighborhood or community through which the road runs, whether the lands are contiguous to the road or not. Special benefits are, or may be, special or peculiar to one or more tracts along the road and contiguous thereto, in the neighborhood, which benefits are different from the benefits to all the other lands in the neighborhood through which the road runs. Combs v. Smith, 78 Mo. 32; Bridge Co. v. Stone, 194 Mo. 188. The instruction asked attempts to create the impression that special benefits may be considered either to lands adjacent to the road, or to lands back away therefrom for some distance. (5) Instruction 1 for defendant is an exact copy of the instruction given in the case of McReynolds v. Railway Co., 110 Mo. 487, which instruction was approved by the Supreme Court and has been followed in all subsequent decisions. Newby v. Platte Co., 25 Mo. 258; Jackson Co. v. Waldo, 85 Mo. 637; Daugherty v. Brown, 91 Mo. 26; Lingo v. Burford, 112 Mo. 157; Mississippi Co. v. Byrd, 4 S.W.2d 810; Rives v. Columbia, 80 Mo.App. 179. (6) There was abundant evidence to support the verdict of the jury. There was very little evidence tending to show that this land received any special benefits over and above other lands in the community along the road. The matter was submitted to the jury on a fair and impartial trial and their verdict is responsive to the evidence, and conclusive.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

This is a proceeding brought by the State Highway Commission to condemn for State Highway No. 20 certain lands in Saline County belonging to the defendant, George M. Young. Upon the filing of the petition, commissioners were duly appointed, who assessed the defendant's damages at $ 900. The plaintiff filed exceptions to the report and requested a trial by jury. The jury assessed the damages at $ 2300. From the judgment on that verdict the plaintiff has appealed. The assignments of error complain of the admission of testimony and the giving and refusal of instructions.

The respondent Young owned a farm containing 698 acres in one body, lying in Sections 9, 10, 15 and 16, Township 50 N., Range 20 W., as shown on the accompanying plat. For convenience in reference we have divided it into four tracts: The Phil Young tract, on the south side of the farm, containing 178 acres; the Don Young tract, in the center of the farm and bordering on the south side of the west portion of the state highway, containing 320 acres; the Allen tract, abutting the same west part of the highway on the north side and containing about 120 acres; and the Barnes tract, containing about eighty acres. This latter is diagonally bisected by the state highway from southwest to northeast, making two triangles each of about forty acres. Of the whole farm, as divided by the highway, approximately 538 acres are left in one body on the south side of the road, and 160 acres on the north side.

[SEE ILLUSTRATION IN ORIGINAL]

On the north side of the whole farm ran a county dirt road; on the south side a road known as the Arrow Rock Road. There was formerly a public road on the east side, but it had fallen into disuse, if it was not abandoned, and brush had grown up in it. Beginning at the northeast corner of the Barnes tract there was a private road running south on the east side thereof and meandering southerly along the middle line of Section 10 through the farm to the Arrow Rock Road. This private road was the only outlet from the farm to the two public roads on the north and south sides thereof. Located upon it were the dwelling houses of Phil and Don Young, the respondent's sons. The dwelling house on the Allen place was near the public road on the north, and the Barnes house was on the south triangular half of that tract near the east side, close to and facing the private road leading south. Barnes was a tenant. The Young brothers farmed their two tracts, and it seems the respondent farmed part of the Allen tract and rented the rest of it.

The strip taken for State Highway No. 20, and for an incidental borrow-pit from which to obtain material for a fill, was 7.57 acres in area, and was appropriated for that portion of the highway between the cities of Slater and Marshall. This highway furnishes the farm with a shorter and better route to these points than it had before. We do not find the record discloses the type of road to be constructed, though the witnesses speak of it as being sixty feet wide with easy grades and curves; but we take judicial notice from the Centennial Road Law,...