243 S.W. 167 (Mo. 1922), In re Condemnation of Land In West Park District Under Kansas City Ordinance No. 37008

Citation:243 S.W. 167, 295 Mo. 28
Opinion Judge:GRAVES, J.
Party Name:In re CONDEMNATION OF LAND IN WEST PARK DISTRICT UNDER KANSAS CITY ORDINANCE NO. 37008 v. KATE BORUFF et al., Appellants
Attorney:Henry S. Conrad, Clarence S. Palmer, M. S. Garrard, Wilkinson, Wilkinson & Dabbs, Reinhardt & Schibsly, T. A. Milton, Ed. E. Aleshire, Omar E. Robinson and Conger Smith for appellants. E. M Harber and Benj. M. Powers for respondent.
Judge Panel:GRAVES, J. James T. Blair, C. J., Higbee, D. E. Blair, Elder and Walker, JJ., concur.
Case Date:June 26, 1922
Court:Supreme Court of Missouri
 
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Page 167

243 S.W. 167 (Mo. 1922)

295 Mo. 28

In re CONDEMNATION OF LAND IN WEST PARK DISTRICT UNDER KANSAS CITY ORDINANCE NO. 37008

v.

KATE BORUFF et al., Appellants

Supreme Court of Missouri

June 26, 1922

Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.

Affirmed.

Henry S. Conrad, Clarence S. Palmer, M. S. Garrard, Wilkinson, Wilkinson & Dabbs, Reinhardt & Schibsly, T. A. Milton, Ed. E. Aleshire, Omar E. Robinson and Conger Smith for appellants.

(1) The prices at which an owner whose land is under condemnation at the time sells the same is not competent evidence for the purpose of establishing the value of the lands taken by the condemnation proceeding. Metropolitan Street Railway Co. v. Walsh, 197 Mo. 392; McNaughton v. Commonwealth, 220 Mass. 550. (2) If a trial is unfinished at the end of one term of a circuit court and is continued into the succeeding term of the same court, in the same county, and then proceeded with to the end of the trial, the proceedings in the latter term are invalid and the judgment rendered therein should be reversed. Neal v. Kansas City Railways Co., 199 Mo.App. 498. (3) The order of publication having been made in a newspaper called the Daily Record which was not the newspaper to which the board consisting of the circuit judges of Jackson County, had in pursuance of the state statutes given the contract for printing and publishing legal notices and which was at the time the only newspaper in which sad order of publication could be legally published, there was in effect no publication of said order. Sec. 10405, R. S. 1919. (4) The court erred in refusing to give instruction marked "Aleshire 1." Either witnesses who testified that Tract 67 was worth $ 65 a foot and parties who testified that it was worth $ 250 a foot, testified falsely, and it certainly was a material issue. (5) The court erred in refusing to give instruction marked "Aleshire 2." (6) While the values fixed by the jury are questions of fact, yet when the evidence is so overwhelmingly in opposition to the finding of the jury, it is not improper to say that the finding was against the evidence and against the weight of the evidence. The evidence shows conclusively that the jury disregarded claimants' evidence. There can be no question but what Instruction 2 was fair and one that should have been given to the jury. Especially is this true in view of answers by the city's principal witness, Herbert V. Jones. This indicates that the witness paid no attention to improvements of any kind or expenses incurred by the claimants. "Q. Does improving property and putting in sewers, sidewalks, curbing in your streets and all those things have anything to do with fixing the value of property? A. Not necessarily. Q. And does it make any difference in value as to whether it is on grade or not, a lot? A. Very little at that point." All public improvements to property in the city is paid for by the owner and it is on the theory that sewers, sidewalks, curbs and street improvements add to the value of the property, though Mr. Jones thinks it makes no difference. "Q. Now, suppose there had been 2000 yards taken off of Tract 67, would that enhance the value any for that lot as against Tract 68? A. I don't think that would make any perceptible difference in the value of that class of property." This same witness, however, says it might cost $ 1.50 a yard or something like that, to remove the dirt from this Tract 67. These witnesses were employees of the city for the purpose of making valuation of this property and testifying in court. (7) Prior to the trial Mr. McElroy had control and was controlling the Mazda Realty Company, and had purchased through a committee of some sort about 46 per cent of all of the property to be condemned. Mr. McElroy also turns out to be city's witness number 3 to bear the prices down. His company (Mazda Realty Co.) owned a large proportion of condemned property, though he was so generous he did not seem to want any more than it cost him. In other words he bought it for the Liberty Memorial Committee. That McElroy, Sears and Jones worked together we only need to refer to one question: "Q. Now, Mr. Sears, in fixing the price of the property owned by the Mazda Realty Company, did you discuss the matter any with Mr. McElroy? A. Oh, I got what information Mr. McElroy had available." That means undoubtedly that Mr. McElroy furnished Jones and Sears the cost of every piece of property they had bought and they doubtless had a list of all the prices, and fixed the values in accordance with what McElroy had paid for what they say was similar property. Following the above question and answer: "Q. You got the information from Mr. McElroy as to what it cost him, did you? A. I got information from him like I did any one else. Q. Now you talked with Mr. McElroy about what this property cost him, didn't you? A. Yes, I got what information Mr. McElroy had. Q. But you knew he purchased it for the Memorial Association, didn't you?" The Court: It doesn't make any difference whom he bought it for -- all right to inquire about price -- sustained as to whom he bought it for. "Q. And you knew what it cost him, didn't you? A. Yes, sir, I had the information he had." It is clearly shown that the witness Sears knew all about the McElroy purchase and says that he went to him to find out what it cost him. If Mr. Sears had gone to Dr. Brooks, Hussy, or Parker, he could have found out that their property cost them three times more than he was allowing them for it. The city's witnesses were not interested in what property cost other people but wanted to know what McElroy had paid for the property he had bought, in fact, for the Memorial Association.

E. M Harber and Benj. M. Powers for respondent.

(1) The evidence concerning sales to the Mazda Realty Co. was properly admitted. (a) Evidence of sales of similar property constitutes the best standard of value in condemnation cases. Met. St. Ry. Co. v. Walsh, 197 Mo. 392, 403; Railway Co. v. Clark, 121 Mo. 169; Markowitz v. Kansas City, 125 Mo. 485; In re Forsythe Blvd., 127 Mo. 417. (b) The sales to the Mazda Realty Co. were not the kind of evidence condemned by Met. St. Ry. Co. v. Walsh, 197 Mo. 392. (c) The evidence of the Mazda sales was offered by the owners of the property thus purchased as a part of their case against the city, and it would have been error to exclude it since appellants had previously been allowed to testify to prices they paid for their own property. (d) The introduction of evidence is not reversible error unless appellants objected thereto at the time it was offered, and appellants cannot rely upon an objection other than the one they made at the time evidence was offered. Williams v. Dittenhoefer, 188 Mo. 134; Russell v. Glasser, 93 Mo. 353; Coughlin v. Haenssler, 50 Mo. 126. (e) Each appellant can rely only upon the objections he himself made and cannot take advantage of the objections raised by another party. Kansas City v. Woerishoeffer, 249 Mo. 23. (f) An appellant cannot take advantage of an error which he himself has invited in the trial of a case. 2 Elliott on Evid., sec. 889; Holmes v. Braidwood, 82 Mo. 610; Christian v. Ins. Co., 143 Mo. 460; Met. St. Ry. Co. v. Walsh, 197 Mo. 412; White v. Railroad, 250 Mo. 488. (2) The offer of appellants to prove an alleged statement of Walter S. Dickey was properly refused. The evidence was hearsay and not res gestae. State ex rel. Bankers Life Ins. Co. v. Reynolds, 277 Mo. 14. (3) There was no error in receiving the verdict or report of commissioners at a term subsequent to that of trial. (a) A condemnation case, under the Kansas City Charter, is not a jury trial and the verdict or report of commissioners may be made at a term subsequent to that at which the case is tried. L. & F. Plank Road v. Pickett, 25 Mo. 535; In re Grading Independence & Westport Road, 238 Mo. 330; St. Louis v. Schuttenberg, 212 S.W. 864; Kansas City Charter 1909, art. 13, secs. 12 to 20; St. Joseph v. Truckenmiller, 183 Mo. 14; Leavenworth T. & B. Co. v. Atchison, 137 Mo. 229. (b) The established procedure, under the Kansas City Charter, permits a verdict to be returned at a term subsequent to that of trial, and property rights involving millions of dollars have vested in reliance upon it. It should not be lightly disturbed. State ex rel. Graham v. Seehorn, 246 Mo. 560. Some important cases where this was done are reported as follows: Kansas City v. Bacon, 157 Mo. 450; Kansas City v. Mastin, 169 Mo. 80; Kansas City v. Woershoeffer, 249 Mo. 1; Kansas City v. Morris, 276 Mo. 158. (4) The order of publication was...

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