Arkansas-Missouri Power Co. v. Hamlin

• Decision Date: 02 March 1956
• Docket Number: ARKANSAS-MISSOURI,No. 7442,7442
• Citation: 288 S.W.2d 14
• Parties: POWER COMPANY, a corporation, Plaintiff-Respondent, v. Gwendolyn A. HAMLIN, Cloyd Handley and Dwight E. Hamlin, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 14

288 S.W.2d 14

ARKANSAS-MISSOURI POWER COMPANY, a corporation, Plaintiff-Respondent, v. Gwendolyn A. HAMLIN, Cloyd Handley and Dwight E. Hamlin Defendants-Appellants.

No. 7442.

Springfield Court of Appeals, Missouri.

March 2, 1956.

Blanton & Blanton, Sikeston, for defendants-appellants.

Ward & Reeves, Caruthersville, for plaintiff-respondent.

RUARK, Judge.

In this, a condemnation suit, the commissioners by their report filed May 31, 1950, awarded the landowner-appellants $3,600 damages. On June 3, 1950, the money having been paid into the registry, the court entered an order authorizing entry of possession by the condemnor-respondent. The owners took down the award and filed their exceptions and demand for jury. Change of venue having been taken from Pemiscot County by the condemnor, the cause was tried to a jury, which, on September 16, 1954, returned a verdict fixing the damages at $16,000, and judgment was entered in favor of condemnees in amount of $12,400, the difference between the original deposit on the commissioners' award and the sum finally found by the jury.

The first question presented is, is a condemnee entitled to recover interest on the difference ($12,400 in this instance) between the amount of commissioners' award and the jury's determination of the damages? Our conclusion is in the affirmative.

Stated generally, and without intending to enlarge or restrict such statement to any factual or procedural situation except the one at hand, we agree with the great weight of authority that the landowner whose land has been condemned is entitled to compensation in the amount of the value of his property as of the date of taking, and this includes the value of (the use of) the property from the date he (contrary to his will or agreement) is put out of owner's possession until full payment (which is necessary to complete the legal taking under the constitution) has been completed in the sense that such payment is made available to the owner or judgment is rendered therefor.

Since the owner is entitled to just compensation for the use of his property in the interim (or damages for delay in payment, as it is often called), in at least those cases where the value of the use pending payment is not shown by some other method, we use as a measuring stick the value of the use of the money which stands for and in lieu of the land, hence interest at the legal rate.

Until the just compensation is paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. Constitution, art. 1, Sec. 26, V.A.M.S. The measure of damages (compensation) is obtained as of the date of the appropriation. In re Armory Site in Kansas City, Mo.Sup., 282 S.W.2d 464, 470; State ex rel. State Highway Commission v. Blobeck Inv. Co., 233 Mo.App. 858, 110 S.W.2d 860. Such date of appropriation is usually the date the condemnor pays into court the amount of the commissioners' award. Section 523.040 RSMo 1949, V.A.M.S.; Kansas City Southern R. Co. v. Second Street Imp. Co., 256 Mo. 386, 166 S.W. 296, 302; State ex rel. State Highway Commission v. Houchens, Mo.App., 235 S.W.2d 97. And the jury is commonly instructed to measure the amount of the owner's compensation by the difference in value before and after such date. State ex rel. State Highway Commission v. White, Mo.App., 254 S.W.2d 668, and cases reviewed; State ex rel. State Highway Commission v. Cook, Mo.App., 161 S.W.2d 691.

It would unnecessarily lengthen this opinion to discuss and review the many authorities which hold the condemnee is entitled to interest from the date of taking to date of payment, with their varied reasoning and varied conclusions based on different procedural situations. Complete and comprehensive annotations setting forth the bulk of the case law will be found at 96 A.L.R. 150; 111 A.L.R. 1304; 36 A.L.R.2d 413. Some text and commentary authorities are 29 C.J.S., Eminent Domain, Sec. 176, p. 1053 et seq.; 18 Am.Jur., Eminent Domain, sec. 272, p. 912, et seq.; Lewis on Eminent Domain, 3rd ed., vol. 2, sec. 742, p. 1319, et seq.; Nichols on Eminent Domain, 3rd ed., vol. 3, sec, 8.63, p. 104; Orgel on Valuation Under Eminent Domain, 2nd ed., vol. 1, sec. 5, p. 19, et seq.; Jahr on Eminent Domain, Valuation and Procedure, sec. 176, p. 290, et seq. Interest as so allowed by the weight of authority is not interest eo nomine, that is, interest as such and in the commonly accepted sense, but a substitute or means of measuring the value of the deprivation of the use of the property, and because it is a part and element of the just compensation required by constitutional provisions, which are self-enforcing, entirely independent of statute; for when no other method is at hand to determine the landowner's loss for the interim period, its allowance as an element of the just compensation is held necessary to preserve the constitutionality of statutory procedures which do not of themselves provide a way for compensating the owner for the period he is kept out of owner's possession without full payment. State v. Stabb, 226 Ind. 319, 79 N.E.2d 392; State ex rel. Steubenville Ice Co. v. Merrell, 127 Ohio St. 453, 189 N.E. 116; Simms v. Dillon, 119 W.Va. 284, 193 S.E. 331, 113 A.L.R. 787; Van Wagoner v. Morrison, 279 Mich. 285, 271 N.W. 760; See Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142; Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664; United States v. Certain Land in City of St. Louis, D.C.E.D.Mo., 41 F.Supp. 809. Some law writers say it is compensation for 'delay in payment.' Others say that interest as a part of the just compensation and interest as and for delay in payment are one and the same thing. 36 A.L.R.2d sec. 46(b), p. 418; Great Lakes Pipe Line Co. v. Carson, 168 Kan. 100, 211 P.2d 70, and cases cited; Mengell's Ex'rs v. Mohnsville Water Co., 224 Pa. 120, 73 A. 201; but see Jahr on Eminent Domain, Valuation and Procedure, sec. 176, p. 292. Some cases where interest on the increase was allowed under somewhat similar or analogous statutory procedures are: Housing Authority of City of Dallas v. Shambry, Tex.Civ.App., 252 S.W.2d 963; Wilkerson v. Grand River Dam Authority, 195 Okl. 678, 161 P.2d 745; Beal v. Iowa State Highway Commission, 209 Iowa 1308, 230 N.W. 302; Calkins v. Salina Northern R. Co., 102 Kan. 835, 172 P. 20; Central Georgia Power Co. v. Stone, 142 Ga. 662, 83 S.E. 524; Grimm v. Elkhorn Valley Drainage Dist., 98 Neb. 260, 152 N.W. 374; Houston Independent School Dist. v. Reader, Tex.Civ.App., 38 S.W.2d 610; State ex rel. McNutt v. Orcutt, 211 Ind. 523, 199 N.E. 595.

While the case authority in Missouri is scant, such as exists puts this state with the majority view--the landowner is entitled to interest on the delayed compensation. St. Louis, O. H. & C. Ry. Co. v. Fowler, 113 Mo. 458, 20 S.W. 1069; Miller v. St. Louis & K. C. Ry. Co., 162 Mo. 424, 63 S.W. 85, 89; Webster v. Kansas City & S. Ry. Co., 116 Mo. 114, 22 S.W. 474; Missouri Pac. R. Co. v. Roberts, 187 Mo. 309, 86 S.W. 91. In the Fowler case above it was said, 20 S.W. loc. cit. 1073, 'As the landowner may withdraw and use the money paid to the clerk for him, it follows that the company should not thereafter be required to pay interest on the amount thus paid into court, but it should pay interest on the excess, if any, found by the jury.' (Emphasis ours.) But it would seem that the reverse of the situation (where the verdict of the jury is less than the award) does not hold. St. Louis, K. & N. W. R. Co. v. Knapp, Stout & Co. Company, 160 Mo. 396, 61 S.W. 300, 305.

The next question argued is, could or should the court rather than the jury calculate the 'interest,' add it to the amount of the verdict and render judgment for the full amount of the just compensation? Our conclusion is that this is proper. It would now seem that, where the amount is no longer in dispute and the finding of interest involves a mere mathematical computation, there is no logical reason why the court should not make the calculation. Doerflinger Realty Co. v. Fields, Mo.App., 281 S.W.2d 609; Scheufler v. Lamb, Mo.Sup., 169 S.W.2d 913. Moreover, we are not here concerned with interest eo nomine, but as an element of just compensation required by the constitution. The sole function of the jury under the instructions given was to find the amount of damage (compensation) to which the owner was entitled at the time the land was taken. All other matters of adjustment of award between the owner and the condemnor were for the court. St. Louis, I. M. & S. R. Co. v. Pfau, 212 Mo. 398, 111 S.W. 10, 12, and cases cited. The case of Missouri Pac. R. Co. v. Roberts, 187 Mo. 309, 86 S.W. 91, loc. cit. 93, long ago put this to rest when it said, 'The only proper matter for the jury to consider or include in their verdict is the amount of damages the defendant is entitled to by reason of the condemnation of the land. All other questions as to the allowance of interest, the adjustment between the plaintiff and defendant of the difference between the verdict, and the amount deposited by the defendant and received by the plaintiff, are matters for the court, to be settled thereafter.' As a matter of fact, it would be impossible for the jury to compute the interest, because it is reversible error to inform them of the amount of the award. State ex rel. State Highway Commission v. Artz, Mo.App., 45 S.W.2d 81, and cases cited. And it has been said that to instruct the jury to allow interest on the excess of value found by them over the award is error because it presupposes or suggests that the amount of damage is to be increased. See 96 A.L.R. at page 150 et seq. Having held that it is an element of a constitutional requirement, if neither the jury nor the court can fix the interest, the result would condemn our procedural methods as unconstitutional because their mechanical...