City of St. Louis v. Rossi

• Decision Date: 19 October 1933
• Docket Number: No. 30740.,30740.
• Citation: 64 S.W.2d 600
• Parties: CITY OF ST. LOUIS, Appellant, v. SIMON D. ROSSI ET AL., BUSHNELL-POMMER REALTY COMPANY, a Corporation, et al.
• Court: Missouri Supreme Court

64 S.W.2d 600

CITY OF ST. LOUIS, Appellant, v. SIMON D. ROSSI ET AL., BUSHNELL-POMMER REALTY COMPANY, a Corporation, et al.

No. 30740.

Supreme Court of Missouri, Division 1.

October 19, 1933.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.

REVERSED AND REMANDED (with directions).

Julius T. Muench, G. Wm. Senn, Seward McKittrick and John M. Hodgen for appellant.

(1) Damages in condemnation can be awarded only to parties having an estate in real property which is damages. A lessee whose lease expires pending the condemnation suit, the lease containing no right of renewal, has no estate in the property which is damaged and no award can be made. Schreiber v. Ry. Co., 115 Ill. 340, 3 N.E. 427; Appointment of Park Commissioner, 1 N.Y. Supp. 768; Cincinnati v. Schmidt, 14 Oh. App. 426; Application of Mayor, etc., of N.Y. to acquire title to Pier No. 39, 62 App. Div. 271; 2 Lewis, Eminent Domain, p. 1258, sec. 719; Re State House, 21 R.I. 59; Zimmerli v. Waldorf Restaurant Co., 122 Wash. 383, 210 Pac. 801; Smith v. Jeffcoat, 196 Ala. 96, 71 So. 717; Los Angeles, etc., District v. Andrews, 52 Cal. App. 788, 205 Pac. 1085; Harvey v. Bd. of Educ. of Harrisburg, 195 Ky. 82, 258 S.W. 956; Emory v. Boston Term. Co., 178 Mass. 172, 86 Am. St. Rep. 473; Goodyear Shoe Machinery Co. v. Boston Term. Co., 176 Mass. 115; Olive v. Sabine & E.T. Ry. Co., 11 Tex. Civ. 208, 33 S.W. 139. (a) Where a tenant for years installs fixtures on the demised property on condemnation thereof, the cost of such fixtures, their value, or the expense of removing them, cannot be considered as a distinct element of damages, but can be considered only to the extent to which they prove the value of the unexpired term of the lessee. Emory v. Boston Term. Co., 178 Mass. 172, 86 Am. St. Rep. 473; Pause v. Atlanta, 98 Ga. 92; Mayor, etc., of Baltimore v. Gamse & Bro., 132 Md. 290, 104 Atl. 429; Consolidated Ice Co. v. Railroad Co., 224 Pa. 487, 73 Atl. 937; Iron City Auto Co. v. Pittsburg, 253 Pa. 478, 98 Atl. 679, L.R.A. 1917C, 420; 20 C.J., sec. 194, p. 741; North Coast Co. v. Kraft, 63 Wash. 250, 115 Pac. 97; Railroad Co. v. Sehieke, 3 Wash. 625, 29 Pac. 217; James McMillan Printing Co. v. Pittsburg, etc., Ry. Co., 216 Pa. 504, 65 Atl. 1091; Des Moines Wet Wash Laundry Co. v. Des Moines, 197 Iowa, 1082, 198 N.W. 486, 34 A.L.R. 1517; 1 Nichols Eminent Domain (2 Ed.), sec. 234, p. 717. (2) In determining the value of the entire property, the sum of all the interests therein, consideration must be given to restrictions or burdens upon the property. St. Louis v. Clegg, 289 Mo. 321; Boston v. Boston Chamber of Commerce, 217 U.S. 189, 54 L. Ed. 725. (3) Leases made pending the condemnation suit are subject thereto and create no rights against the condemner. Schreiber v. Ry. Co., 115 Ill. 340; Re State House, 21 R.I. 59; Smith v. Jeffcoat, 196 Ala. 96; Harvey v. Bd. of Educ. of Harrisburg, 258 S.W. 956; Emory v. Boston Terminal Co., 178 Mass. 172; Mayor, etc., of Baltimore v. Gamse & Bro., 104 Atl. 429. (a) A new lease between the same parties is a surrender of the premises and a re-entry. St. Louis v. Nelson, 108 Mo. App. 218. (4) The price paid in the condemnation of other property is not competent evidence to show value. Springfield v. Schmook, 68 Mo. 396; Cape Girardeau & Chester Ry. Co. v. Blechle, 234 Mo. 478; 2 Lewis, Eminent Domain (3 Ed.), sec. 669, p. 1150; 2 Nichols, Eminent Domain, sec. 456, p. 1199; Chicago v. Lehmann, 262 Ill. 473, 104 N.E. 831; Luis Ibispo v. Brizzolara, 100 Cal. 435, 34 Pac. 1083; Met. Street Ry. Co. v. Walsh, 197 Mo. 401, How v. Howard, 158 Mass. 278, 33 N.E. 528. (5) The market value of the property both before and after the taking, must be determined in consideration of all the uses to which it is suitable. Evidence of the effect of the taking upon the particular business of a tenant is incompetent to show depreciation in market value. Railroad Co. v. St. Louis Union Stock Yards, 120 Mo. 564; Railroad Co. v. Heiger, 139 Mo. 321; Boyer and Lucas v. Railroad Co., 97 Tex. 108; Re Condemnation Proceedings in Minneapolis, 154 Minn. 486; McKinney v. Nashville, 102 Tenn. 131. (6) In condemnation cases under the St. Louis Charter the commissioners' report is not set aside merely because exceptions are filed. On the trial of exceptions the report of commissioners is entitled to as much or even greater respect than the verdict of a jury. It can be set aside by the court only upon good cause shown. St. Louis Charter, Art. XXI, Sec. 7; St. Louis v. Lanigan, 97 Mo. 178; St. Louis v. Brown, 155 Mo. 567; St. Louis v. Abeln, 170 Mo. 323; St. Louis v. Calhoun, 222 Mo. 55; Railroad Co. v. Richardson, 45 Mo. 468; Hannibal Bridge Co. v. Schaubacker, 49 Mo. 558; Railroad Co. v. Almeroth, 62 Mo. 343; Railroad Co. v. Campbell, 62 Mo. 585; Fitzhugh v. Railroad Co., 107 Va. 158, 59 S.W. 415; Appeal of Piper, 32 Cal. 539; Atchison, Topeka & Santa Fe v. Schneider, 127 Ill. 144; Hannah v. Roanoke, 139 S.E. 307; 20 C.J., sec. 429, p. 1043; Lewis, Eminent Domain (3 Ed.), sec. 776, p. 1379. (7) When the commissioners award the full value of the land the award includes the damages to all parties having an interest in the land. Any further award to lessees is improper. State ex rel. McCaskill v. Hall, 28 S.W. (2d) 80. (8) An order confirming a commissioners' report and a final judgment based on the report must be reversed where the report is shown to have been made on erroneous principles of law or to include improper elements of damages. St. Louis v. Crowther, 142 Mo. 155; Railroad Co. v. Voorheis, 50 Mich. 506; Benedict v. New York, 98 Fed. 789, 39 C.C.A. 290; 2 Lewis, Eminent Domain (3 Ed.), sec. 775, p. 1377; 20 C.J., Eminent Domain, p. 1045, sec. 431.

Theodore Rassieur, George M. Rassieur, Thomas Bond and Alfred C. Wilson for respondent.

(1) When the city by condemnation seeks to appropriate land and all estates and interest therein, such land is to be described, valued and taken as a unit and the compensation therefor determined as a whole. When the gross amount so determined is paid into court for the benefit of all persons interested in the property, the city is vested with title to the property and all estates and interests therein. The fund in court is substituted for the property taken as a whole. Here the public interest ends. The city is not concerned with the apportionment of the award among the several parties interested therein and is not entitled to complain of an apportionment upon which all of the parties in interest have agreed. When the gross award does not exceed the value of the property with the improvements thereon, the city cannot attack the award upon the ground that under the apportionment the award to some particular party in interest was excessive. State ex rel. McCaskill v. Hall, 28 S.W. (2d) 80; Morgan v. Willman, 318 Mo. 151, 1 S.W. (2d) 193; Edmands v. Boston, 108 Mass. 535; State v. Ramsey County, 128 Minn. 432, 151 N.W. 144; Lewis, Eminent Domain (3 Ed.), sec. 716, p. 1253, (2) A leasehold interest in property condemned is taken and destroyed when the city pays the damages awarded into court before the expiration of the lease, and the owner of such leasehold interest is entitled to recover the value of such leasehold interest as of the effective date of the ordinance condemning the property. Sec. 6, Art. XXI. Charter, City of St. Louis; State ex rel. v. Hall, 28 S.W. (2d) 80; State ex rel. v. Day, 35 S.W. (2d) 37; Barclay v. Pickles, 38 Mo. 143; Schreiber v. Railroad Co., 115 Ill. 340, 3 N.E. 427. (3) The commissioners' report is conclusive that the gross award of damages represented the value of the land, together with the improvements thereon, and it cannot be impeached by the testimony of one of the commissioners. McAllister v. Reel, 53 Mo. App. 81. (4) Whether or not a new appraisement shall be ordered in a condemnation suit under the present Charter of the City of St. Louis, Article XXI, Section 7, upon cause shown is left to the judicial discretion of the trial court and it is only an abuse of discretion that will warrant interference by the appellate court. Art. XXI. Sec. 7, Charter, City of St. Louis; St. Louis v. Gerhart Realty Co., 40 S.W. (2d) 661; St. Louis v. Worthington, 19 S.W. (2d) 1066; St. Louis v. Buss, 159 Mo. 9; St. Louis v. Franklin, 26 S.W. (2d) 954; Devine v. St. Louis, 257 Mo. 470, 165 S.W. 1014; St. Louis v. Sheahan, 36 S.W. (2d) 951; 4 C.J. 835. (5) Appellate courts will not set aside a judgment in condemnation proceedings on the ground that it is excessive when there is substantial evidence in support thereof. Art. II, Sec. 21, Const. of Mo.; Art. XXI, Sec. 7, Charter, City of St. Louis; St. Louis v. Hamley Realty Co., 48 S.W. (2d) 938; St. Louis v. Gerhart Realty Co., 40 S.W. (2d) 661; St. Louis v. Schopp, 30 S.W. (2d) 733; St. Louis v. Smith, 30 S.W. (2d) 729; St. Louis v. Abeln, 170 Mo. 318, 70 S.W. 708. (6) A party cannot impeach his own witness by proof of prior statements in contradiction of his testimony. The testimony of Kollas, offered by plaintiff to prove that plaintiff's witness Darst had made statements contradictory to his testimony, was therefore properly excluded as incompetent. Dunn v. Dunnaker, 87 Mo. 597; State v. Burks, 132 Mo. 363.

HYDE, C.

This case, coming recently to the writer, is a proceeding in condemnation. It was brought by the city of St. Louis, under the provisions of Ordinance 30318, approved March 26, 1919, providing for the extension of Skinker Road from Delmar Boulevard northeast to Hodiamont Avenue. Two other cases arising under the same condemnation proceeding have recently been decided by this court: City of St. Louis v. Rossi, 55 S.W. (2d) 946, and City of St. Louis v. Rossi, 58 S.W. (2d) 965. In this case, as in those cases, the report of the first commissioners was set aside, after a hearing by the court thereon, and a new assessment, by other commissioners, ordered. The city has appealed from the...