City of St. Louis v. Vasquez

• Decision Date: 12 December 1960
• Docket Number: No. 47449,No. 1,47449,1
• Citation: 341 S.W.2d 839
• Parties: CITY OF ST. LOUIS, Plaintiff-Appellant, v. Ellen VASQUEZ et al., Defendants-Respondents
• Court: Missouri Supreme Court

Page 839

341 S.W.2d 839

CITY OF ST. LOUIS, Plaintiff-Appellant, v. Ellen VASQUEZ et al., Defendants-Respondents.

No. 47449.

Supreme Court of Missouri, Division No. 1.

Dec. 12, 1960.

Motion for Rehearing Denied and Opinion Modified on Court's

Own Motion Jan. 9, 1961.

Thomas J. Neenan, Oliver T. Johnson, Andrew J. Reis, St. Louis, Walter Wehrle, Thomas W. Wehrle, Clayton, for appellant.

Howard Elliott, Edward D. Weakley, St. Louis, for respondent.

HOUSER, Commissioner.

The City of St. Louis, desiring to add to Lambert-St. Louis Field, a public airport and landing field in St. Louis County owned by the city, brought proceedings in the Circuit Court of St. Louis County to condemn a tract of 14.29 acres, part of a larger tract of 34.9 acres owned by Ellen Vasquez. On January 5, 1953 the commissioners filed their report, awarding damages of $32,152.50. The amount of the commissioners' award was paid into court on February 21, 1957. The case was tried to a jury on the landowner's exceptions. The jury awarded damages of $114,320 for the taking, $20,160 residual damages, and $13,448 interest from February 21, 1957 to the date of the verdict, October 31, 1958, in the total sum of $147,928. After certain adjustments hereinafter discussed, the trial court entered final judgment for Ellen Vasquez for $152,868.83. The city appealed.

We have appellate jurisdiction. The record affirmatively shows that the judgment of the trial court is more than $7,500 in excess of an amount ot which the city contended the landowner is entitled. Constitution, Art. V, Sec. 3, V.A.M.S. State ex rel. Chariton River Drainage District v. Montgomery, Mo.Sup., 275 S.W.2d 283.

Appellant contends that the court erred in giving Instructions 1 and 2; in refusing Instruction A; in its allowance of interest; in the admission of evidence; in its actions with respect to certain statements and arguments of counsel before the jury, and that the verdict is excessive.

We will set forth Instructions 1 and 2 verbatim, italicizing the portions to which appellant takes exception, and for ready reference lettering the particular language appellant considers improper.

Instruction No. 1

(a, b) 'The Court instructs the Jury that under the Constitution of Missouri the private property of the defendant, Ellen Vasquez, cannot be taken by the plaintiff, City of St. Louis, for public use without just compensation being paid by the City to the owner, Ellen Vasquez, and the law of Missouri gives Ellen Vasquez the right to have such just compensation determined by this Jury for such taking. The City has taken 14.29 acres, of defendant Ellen Vasquez's land, bounded on the south by (Brown Road) the main line and switches of the Wabash Railroad, and on the west by Eva Avenue and the Wabash switch tracks, and on the east by the Fordyce lands, now owned by St. Louis University, and on the north by the remaining land of Ellen Vasquez. Your verdict, therefore, must be for Ellen Vasquez. In assessing the just compensation due her you must allow her the fair market value as of February 21, 1957, for 14.29 acres, as shown by the evidence.

(c) 'The term 'fair market value' means the price which her property would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but is not compelled to do so. Fair market value does not mean the price it would bring where the party selling is forced to sell, or where it is sold for other considerations in addition to the money paid, but rather what the land would fairly bring in the hands of a prudent seller at liberty to fix the time at which she would sell and the conditions under which she would sell. The question is, if the defendant Ellen Vasquez wanted to sell her property, what could have been obtained for it upon the market from parties who wanted to buy it on February 21, 1957, and would give her its full value for its highest and best use?

(d) 'In determining its fair market value the Jury should take into consideration its location, the uses for which it is suitable at such location, its zoning, available utilities and municipal services, if any, proximity to transportation, if any, and all the uses to which it may best be applied or for which it is best adapted, having regard not alone for the existing business wants of the community but also such uses as may be reasonably expected in the immediate future, and comparing with the sales and prices most recently obtained at or about the time of the taking for comparable lands with the same facilities in the area. In determining the uses and purposes for which Ellen Vasquez's lands were suitable or adaptable, the Jury is not confined to the use made of the land at the time it was taken.'

Instruction No. 2

(e) 'In assessing damages sustained by the defendant by the taking of her land, you are instructed that her land is to be regarded as one unit although made up of two parts, and her damages consist not only of the reasonable value of the 14.29 acres of land taken, but in addition, the injury to or reduction in the value, if any, to the remaining 20.16 acres of her land, caused by the taking.

(f-h) 'Such damage to the remainder, if any, must be direct and certain at the time of the taking, February 21, 1957. In fixing such damage, if any, to the remainder, you will take into consideration all facts in evidence relating to the condition of the remainder property as a result of the taking, which would naturally impress a reasonably prudent buyer in negotiating for the purchase of the remainder, including its separation into a smaller tract, the reduction in size, the reduction in value, if any caused by the decrease in demand for the land, if any, the decrease in value, if any, in its being separated from transportation, if any, and for such damages, if any, caused by the establishment, erection and maintenance of the high airplane light standard adjacent to defendant's lands, and all matters mentioned in the evidence, which owing to the taking of the land affects the further use, enjoyment and value of the land as a whole, in so far as it affects the market value thereof.'

Appellant contends that (a) 'was abstract and emphasized a foreign issue,' and 'presented no fact issue and embraced no constitutive elements for consideration in arriving at the damages, the sole issue for the jury.' Language such as (a) is abstract in nature, immaterial to the precise issue on trial, and unnecessary. It is better and safer practice to omit this material in drafting instructions in this type of case. The giving of an instruction containing this material, however, does not constitute reversible error unless it appears that the complaining party has been prejudiced or the jury misled thereby. State ex rel. State Highway Commission v. Haid, 332 Mo. 606, 59 S.W.2d 1057; Chicago, R. I. & P. Ry. Co. v. Hosman, 227 Mo.App. 659, 57 S.W.2d 434; State ex rel. State Highway Commission v. Leftwich, Mo.App., 263 S.W.2d 742; State ex rel. State Highway Commission v. Williams, Mo.App., 263 S.W.2d 444. In State ex rel. State Highway Commission v. Goodson, 365 Mo. 260, 281 S.W.2d 858, 861, and State ex rel. State Highway Commission v. Huddleston, Mo.App. 52 S.W.2d 33, judgments in condemnation cases were reversed for the giving of instructions containing language similar to (a). In Goodson the instruction contained additional language specifically referring to condemner's right to take defendants' property 'without their consent and against their will.' In those cases the landowner gave evidence indicating strong opposition to the condemnation. Since the taking was without his consent and against his will, such an instruction was deemed prejudicial in that it inflamed the minds of the jurors, aroused sympathy for the landowner and resulted in a larger verdict than an impartial consideration would have warranted. There was no evidence before this jury that Ellen Vasquez had strong feelings against this taking, or that it was against her will. She did not testify. The words 'without her consent and against her will' were not included in (a). We find nothing in this record to indicate that the inclusion of (a) inflamed the minds of this jury, aroused sympathy for respondent, or otherwise prejudiced the rights of appellant.

Appellant contends that (b) constitutes an erroneous description of the appropriated land because it failed to instruct that the property was separated from Brown Road and Eva Avenue by a drainage ditch, as established by 'all of the evidence in the case,' thus and thereby inferentially instructing the jury 'that the appropriated property had direct access to roads and highways.' There is no basis for such an inference. The description should be sufficiently certain to identify the property condemned, but for this purpose a description using the points of reference and monuments employed and as described by the witnesses and referred to in the exhibits is sufficient. The description in Instruction 1 refers to the 14.29-acre tract, as to which there was no dispute. The maps, charts and diagrams in evidence thoroughly and in detail described and exemplified the streets and highways, drainage canal, ditches, railroad tracks, switches and right of way, which constitute the boundaries of this property. Appellant's own witness, Hallauer, used almost the same language as that of the instruction in describing the boundaries. The jury had every opportunity to be thoroughly familiar with the nature and extent of the south and west boundaries, and could not have been misled by the description in (b).

Appellant contends that (c) is an erroneous definition of 'fair market value,' because from it the jury could infer that respondent had a right to fix the time, price and conditions under which she would sell the property. Considering not merely this one of the several sentences defining 'fair market value,' but considering all of...