951 S.W.2d 617 (Mo.App. W.D. 1997), WD 51894, Clay v. Missouri Highway and Transp. Com'n

Docket NºWD 51894.
Citation951 S.W.2d 617
Party NameLeslie R. CLAY, et al., Appellants, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, et al., and Max Rieke & Brothers, Inc., Respondents.
Case DateJune 30, 1997
CourtCourt of Appeals of Missouri

Page 617

951 S.W.2d 617 (Mo.App. W.D. 1997)

Leslie R. CLAY, et al., Appellants,

v.

MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, et al., and

Max Rieke & Brothers, Inc., Respondents.

No. WD 51894.

Court of Appeals of Missouri, Western District.

June 30, 1997

Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 2, 1997.

Page 618

[Copyrighted Material Omitted]

Page 619

[Copyrighted Material Omitted]

Page 620

G. Spencer Miller, Miller & Marske, Kansas City, for appellants.

John M. Cave, II, James M. Slone, Asst. Counsel, Judy L. Curran, Dist. Counsel, Mo. Highway and Transp. Comm., Kansas City, for respondents.

Before HANNA, P.J., and ELLIS and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

After a civil jury trial, plaintiffs Leslie and Alma Clay were awarded $19,640 from the Missouri Highway and Transportation Commission (MHTC) under a theory of inverse condemnation, and $22,340 from contractor Max Rieke & Brothers, Inc. (Rieke) under a theoryof strict liability for blasting, for property damage caused by the blasting of rock during construction of a nearby road. The Clays alleged that the blasting damaged their property by damaging an aquifer that had been supplying unusually high quality water to their property.

The Clays appeal the trial court's refusal to submit a negligence claim against either defendant, refusal to submit a strict liability for blasting claim against MHTC, and refusal to submit an inverse condemnation claim against Rieke. Rieke cross-appeals the trial court's decision to allow the Clays to submit a strict liability for blasting claim against it, alleging that Plaintiffs failed to prove that the blasting caused their damage or trespassed on their property. We find that the trial court properly submitted only a strict liability for blasting claim against Rieke and only an inverse condemnation claim against MHTC.

The Clays also appeal the damage award, alleging that the trial court erred in excluding

Page 621

evidence of lost future profits, the independent value of their lost water, and lost use of the water. We find that the trial court properly refused to admit the evidence of lost profits because it was speculative, and that the trial court properly refused to separately submit damages to the Clays from loss of the water itself because such damages were subsumed within the submission of the property's loss of fair market value. We agree with defendants claims on cross-appeal, however, that the damage awards against the two defendants, which were several rather than joint and several, were duplicative of each other because both awarded damages for the same loss of fair market value of the property. We also find that because of the peculiar facts of this case this error can be corrected without requiring a new trial on damages. Accordingly, we remand for entry of an amended judgment in accordance with the principles set out in this opinion.

  1. FACTUAL AND PROCEDURAL BACKGROUND

    Leslie R. Clay, Jr. and his wife Alma Clay are residents of Tiffany Springs, Missouri. Their residence in Tiffany Springs sits above an aquifer. This aquifer had supplied a well on their property with unusually high-quality drinking water since 1945.

    In November 1989, roadwork began on Highway 152 in the Tiffany Springs area. MHTC hired Rieke to cut the right of way for the new highway down to a grade specified by MHTC. Rieke used explosives to break up and remove rock from the roadway site. MHTC had anticipated that Rieke would use explosives to blast away rock, but had not specifically required the use of explosives in its contract.

    Rieke tried to blast in a controlled fashion. Specially-placed explosive charges cut the rock and left smooth walls of rock for the sides of the highway. At trial, some experts testified that this controlled blasting only caused shock waves to move about twenty feet into the rock. The Clays alleged, however, that the blasting caused vibrations at their home some .85 miles away and that it affected the quality and quantity of the water coming from the aquifer. More specifically, they alleged that due to cracks in the aquifer caused by the blasting, sediment such as sand and oil contaminated the aquifer and, ultimately, their well-water, that the water level of their well dropped, and that the water flow in their well was drastically reduced.

    The Clays brought suit against the MHTC and Rieke. They sought recovery against both defendants under three alternative theories: (1) that both defendants were strictly liable for blasting for any damage to the common aquifer and percolating waters, and the resulting damage to the Clays' property, (2) that the blasting resulted in inverse condemnation because, by damaging the common aquifer and percolating waters, the defendants wrongfully appropriated the Clays' property; and (3) that both defendants were negligent in locating and constructing the highway so that it cut through and damaged the common aquifer and percolating waters. The Clays sought damages under each theory of recovery for the loss of value to their real property, the cost and future cost of purchasing and hauling water, and the loss of the future intended use of their real property for agricultural purposes (as a vegetable farm) because of the pollution and diminished supply of their well water. Mr. Clay testified that the inability to start a farm on the land cost him $250,000 in profits. Defendants presented evidence that the alleged damage to the land caused a maximum of $12,700 in damages. Each party attacked the credibility of the other's figures.

    The court eventually found that the Clays had failed to make a submissible case of negligence against Rieke, that the Clays were not entitled to submit an inverse condemnation claim against the Rieke since it was not a public entity, and that the Clays could not submit a strict liability or negligence claim against MHTC because it is a public entity and no exception permitting suit applied. The court allowed the Clays to submit a claim against MHTC for inverse condemnation. The damage instruction for the inverse condemnation claim against MHTC was modeled after MAI 9.02, and provided:

    Page 622

    You must award plaintiffs such sum as you believe was the difference between the fair market value of plaintiffs' whole property immediately before the taking in December, 1989 and the value of plaintiffs' remaining property immediately after such taking, which difference in value is the direct result of the taking and of the uses which defendant has the right to make of the property taken.

    The court also allowed the Clays to submit a claim against Rieke for strict liability for blasting. The damage instruction for this claim was modeled on MAI 4.02 and included the optional loss of use tail:

    If you find in favor of plaintiffs, then you must award plaintiffs such sum as you may find from the evidence to be the difference between the fair market value before it was damaged and its fair market value after it was damaged, plus such sum as you may find from the evidence will fairly and justly compensate plaintiffs for the loss of use thereof during the time reasonably necessary for the property to be repaired or replaced.

    The Clays had also sought to submit loss of use damages against MHTC and to present lost profits and the lost value of the water itself. The court found evidence of the lost value of the water itself was not recoverable as a separate item of damage, but rather was a part of the submission for loss of fair market value of the property. It also found that lost profits from the proposed vegetable farm were too speculative to be admitted. The Clays made an offer of proof in which they described the water quality they had enjoyed before the blasting, the decline in water quality after the blasting, Mr. Clay's plans to start a vegetable farm after he retired, how his plans were ruined by the decline in the well water's quality, and his damage estimate of $250,000.

    The jury returned a verdict in favor of the Clays and awarded them damages of $19,640 against MHTC and $22,340 against Rieke. The Clays appeal the trial court's refusal to let them offer evidence of the other items of damage listed above, its refusal to let them submit negligence claims against either defendant, and its refusal to let them submit an inverse condemnation claim against Rieke. The defendants cross-appeal the verdicts, arguing that they are duplicative of each other and that the damage awards are not supported by the evidence. Rieke also argues that the Clays failed to make a submissible case of strict liability for blasting because they failed to show an actual trespass on their land and failed to prove there was a diminution in the fair market value of their property.

  2. CLAIMS SUBMISSIBLE AGAINST RIEKE

    As noted above, the court allowed the Clays to submit a strict liability for blasting claim against Rieke, but granted Rieke a directed verdict on the theories of negligence and inverse condemnation. Each party appeals the rulings contrary to its position.

    A. Submissibility of Strict Liability for Blasting

    Rieke claims that the trial court erred in submitting the Clays' strict liability for blasting claim against it because they failed to plead facts showing that vibrations or concussions from the blasting entered their property and caused the alleged damage to their well. Rieke argues that proof of trespass is a necessary element of a claim of strict liability for blasting. Second, Rieke argues that the Clays failed to set forth sufficient evidence that its actions caused any damage--whether or not in the form of trespass--to the Clays' property. In response, the Clays argue that they presented a submissible strict liability for blasting claim because...

To continue reading

Request your trial