Citizens Elec. Corp. v. Amberger
| Citation | 591 S.W.2d 736 |
| Decision Date | 20 November 1979 |
| Docket Number | No. 40146,40146 |
| Parties | CITIZENS ELECTRIC CORPORATION, Respondent, v. Robert W. AMBERGER et al., (Tracts 12 through 18), Appellants. |
| Court | Missouri Court of Appeals |
Albert C. Lowes and Thomas A. Ludwig, Buerkle, Lowes & Beeson, Jackson, for appellants.
Claude C. Knight, Hannegan, Knight, Kennedy, Schoenberg & Weber, Inc., St. Charles, for respondent.
This is an appeal from a judgment awarding damages to seven landowners for a high-line easement across their land. The plaintiff, Citizens Electric Corporation, obtained the easement through condemnation proceedings. Exceptions to the commissioner's report were filed by the utility and the landowners. All seven cases were consolidated and tried before the court without a jury. From the resulting judgment, the defendant-landowners have appealed setting out six contentions of error on the part of the trial court which they maintain entitle them to a new trial.
Failure of substantial evidence to support the court's award of damages was first charged for the reason that the values of the various tracts of land immediately after the taking by the utility company as determined by the trial court were not supported by any of the evidence. At trial, values of the seven tracts before and after the taking by the utility company were established by presenting testimony of expert witnesses and the owners. The defendant-landowners offered the testimony of three expert witnesses who made appraisals of land values on the seven tracts. The owners of each tract also took the stand to testify as to the value of their land before and after the taking of the easement. Plaintiff-utility company qualified a land appraiser as an expert witness, who testified as to the values of the particular tracts before and after the imposition of the easement. This valuation testimony varied greatly, depending on whether the landowners' or the utility company's witnesses were on the stand.
In his findings, the trial judge determined the before and after valuation of each particular tract and then computed from these figures the damage award. In three instances, that is on tract 12 owned by Wilbert Neislein and Barbara Neislein, his wife; tract 13 owned by Charles E. Henderson and Frances E. Henderson, his wife; and tract 18 owned by Norman Meisner and others, the court found an after-taking value in excess of the amount found by any witness. In two instances, that is tract 14 owned by Ella F. Oster and 16 owned by Willard C. Fritsche and Kathryn M. Fritsche, his wife, and Gerald W. Fritsche and Sandra K. Fritsche, his wife, the court found an after-taking value higher than any land appraiser expert witness but within the amount of after-taking valuation testified to by the landowners.
It is a fundamental principle in eminent domain cases where there is a partial taking of the total tract that "the measure of just compensation is the difference between the fair market value of the landowners' property immediately before and immediately after the taking." State ex rel. State Highway Commission v. Wilcox, 535 S.W.2d 131, 132(1) (Mo.App.1976). It is equally fundamental that the amount of the award must be within the limits established by the evidence. Public Water Supply District No. 2 of Jackson County v. Alex Bascom Company, 370 S.W.2d 281, 290(12) (Mo.1963). More specifically, "absent other factors, a judgment is within the range of all the evidence if it does not exceed an amount in excess of the highest amount of damages which the evidence will sustain and is not below the lowest amount shown by the party who does not have the burden of proof." State ex rel. State Highway Commission v. Kemper, 542 S.W.2d 798, 804(8) (Mo.App.1976). Thus in the determination of the after-taking values of tracts 12, 13 and 18 the court erroneously determined an after-taking valuation in excess of any testimony found in the evidence. The court's findings as to these particular tracts is therefore not supported by substantial evidence, Murphy v. Carron, 536 S.W.2d 30, 32(1) (Mo. banc 1976) and the judgment as to these tracts must be reversed and remanded for redetermination of the damages. State ex rel. State Highway Commission v. Kemper, supra at 805(9).
The after-taking valuation of tracts 14, 15, 16 and 17 by the court was within the range of the evidence. The after-taking valuation of tracts 15 and 17 was supported by the testimony of at least one professional land appraiser and the after-taking valuation of tracts 14 and 16 was supported by the testimony of the owners of each tract. An owner of real property is qualified to give an opinion as to the value of his property although he is not a real estate expert. State ex rel. State Highway Commission v. Northeast Building Company, 421 S.W.2d 297, 301(3) (Mo.1967).
Defendant-landowners next contend that the trial court erred in failing to take into account when assessing damage to the tracts caused by the easement, the damage to several fences. Specifically, the contention is based upon the assertion that the trial court found values in accordance with the utility company's land appraiser and that this expert witness did not consider damage to fences on the property in his valuation. Actually the evidence indicates to the contrary. In describing the various factors that the witness took into consideration in determining before and after value in appraising the seven tracts, this expert for the utility described as one of the factors "depreciation to the fences." The court in its findings with regard to the factors which the court considered referred to depreciation or damages to the fences. Since the effect on the fences was considered in arriving at the total land damage, such contention is without basis...
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