City of St. Louis v. Buselaki

• Citation: 80 S.W.2d 853,336 Mo. 693
• Parties: City of St. Louis, Appellant, v. Pete Buselaki et al., Pete and Annie Buselaki, Hampton Investment Company, a Corporation
• Decision Date: 09 March 1935
• Court: United States State Supreme Court of Missouri

80 S.W.2d 853

336 Mo. 693

City of St. Louis, Appellant, v. Pete Buselaki et al., Pete and Annie Buselaki, Hampton Investment Company, a Corporation

Supreme Court of Missouri

March 9, 1935

Rehearing Denied March 9, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Affirmed.

Charles M. Hay, John T. Hicks and James B. Steiner for appellant.

(1) This court will not interfere with the rulings of the trial court where there is a mere conflict in the evidence, but it will interfere where damages are flagrantly excessive. This is especially true where, as in the instant cases, the respondents' testimony was based upon future and speculative values, not in being at the date of valuation. St. Louis v. Turner, 55 S.W.2d 943; St. Louis v Rossi, 55 S.W.2d 947; St. Louis v. Smith, 325 Mo. 471, 30 S.W.2d 732. (a) Fair market values of lands can best be reached from the consideration of sales of similar property in the same neighborhood. When the trial court overruled the appellant's exceptions, it disregarded such sales which were in evidence. Met. St. Ry. Co. v. Walsh, 197 Mo. 404, 94 S.W. 860; School District v. Phoenix Land & Improvement Co., 297 Mo. 342, 249 S.W. 51; Railroad Co. v. MacAdaras, 257 Mo. 470, 166 S.W. 307; St. Louis, O. H. & C. Ry. Co. v. Fowler, 142 Mo. 678, 44 S.W. 771; In re Forsyth Boulevard, 127 Mo. 422, 30 S.W. 188; Railroad Co. v. Clark, 121 Mo. 185, 25 S.W. 192. (b) The city charter, Article XXI, Section 5, requires that the damages shall be assessed as of the effective date of the ordinance -- in this case August 8, 1930. The trial court admitted and refused to strike out evidence based upon future and speculative values against the plain provisions of the city charter and the decisions of this court defining and applying market values. City Charter, Art. XXI, Sec. 5; St. Louis, etc., Ry. Co. v. Knapp, Stout & Co., 160 Mo. 410, 61 S.W. 300; St. Louis, Keokuk & N.W. Ry. Co. v. St. Louis Union Stock Yards Co., 120 Mo. 553, 25 S.W. 399; Met. St. Ry. Co. v. Walsh, 197 Mo. 392, 94 S.W. 860; Lewis on Eminent Domain (3 Ed.), sec. 706. (c) The trial court admitted and refused to strike out testimony of certain witnesses designed to force the appellant to pay more for property because it was condemning the property than should be paid for the same property on free open market between individuals against the law and the decisions of this court. (See authorities under Point I, Subdivision b.) City Water Co. v. Hunter, 319 Mo. 1240, 6 S.W.2d 565; Railroad Co. v. Carton Real Estate Co., 204 Mo. 565, 103 S.W. 519. (2) Under the market value rule as interpreted by this court, it is the duty of witnesses in arriving at the damage awards to appraise the entire parcel before the part is taken, and then to appraise the remainder after the part is taken, and the damages are equal to the difference between the two values. This rule the witnesses for the respondents failed to follow, with the exception of one witness. City Water Co. v. Hunter, 319 Mo. 1245, 6 S.W.2d 566; Railroad Co. v. Carton Real Estate Co., 204 Mo. 575, 103 S.W. 519; State ex rel. St. Louis v. Beck, 63 S.W.2d 816.

Gustave A. Stamm, Maurice L. Stewart and Hartman & Porter for respondents.

(1) Questions not raised by appellant in its motion for new trial filed in the trial court are not before this court for review. Young v. Wheelock, 64 S.W.2d 956; Hogan v. Kansas City Pub. Serv. Co., 62 S.W.2d 858; Brainard v. Railroad Co., 319 Mo. 898, 5 S.W.2d 18. (a) The city's motion for new trial preserved for review only the question of (1) the weight of the evidence; (2) the question of whether error was committed in the admission of defendant's evidence; (3) rejection of plaintiff's evidence; (4) overruling plaintiff's motion to strike evidence introduced by the defendants; and (5) sustaining defendant's motion to strike evidence introduced by the plaintiff. Of the above, (3) and (5) are out of the case because the court did not refuse to allow plaintiffs to introduce any evidence, nor did the court sustain any motion of defendants to strike out any of plaintiff's evidence. (b) Appellant's point that the damage awards were flagrantly excessive is not preserved by the assignments in the motion for new trial to the effect that the judgment is against the weight of the evidence. Bond v. Williams, 279 Mo. 228, 214 S.W. 206; Hablutzel v. Home Life Ins. Co., 332 Mo. 929, 59 S.W.2d 639; De Maria & Janssen, Inc., v. Baum, 227 Mo.App. 216, 52 S.W.2d 421; Matthews v. Karnes, 320 Mo. 972, 9 S.W.2d 631; Chicago, Santa Fe & Cal. Ry. v. Vivian, 33 Mo.App. 590. (c) Appellant's assignment of error that there is no substantial evidence to support the trial court's ruling is not preserved by the assignments in the motion for new trial to the effect that the judgment is against the weight of the evidence. Bond v. Williams, 279 Mo. 228, 214 S.W. 206; Fitzroy v. People's Bank of Cardwell, 234 S.W. 865. (d) Assignments of error in appellant's brief not briefed under the points and authorities are to be deemed as abandoned. Pence v. Kansas City Laundry Service Co., 332 Mo. 944, 59 S.W.2d 639; Burch v. Ry. Co., 328 Mo. 72, 40 S.W.2d 693. (2) Appellant cannot now complain of any alleged error in the admission of, or refusal to strike out, evidence which it claims is based upon future or speculative values when it did not object to the testimony of any witness on this ground, and did not at any time during the trial move to strike out any testimony of a witness on this ground. Wolfson v. Cohen, 55 S.W.2d 680; Young v. Wheelock, 64 S.W.2d 956. (3) In considering a damage award, the inquiry as to sales should be confined to values of the same class of property in the same vicinity or neighborhood, similarly located, and sales of such property should be reasonably near in point of time to the transaction under consideration. School District v. Phoenix Land & Imp. Co., 297 Mo. 342, 249 S.W. 54; Railroad v. McAdaras, 257 Mo. 470, 166 S.W. 307. (4) In condemnation proceedings the value of the property taken is to be considered for any use to which it is reasonably adapted, having regard to the existing business or wants of the community or such as may be reasonably expected in the immediate future, and the damages are not restricted merely to the present use of the property. Mississippi River Bridge Co. v. Ring, 58 Mo. 496; State ex rel. Highway Comm. v. Southern Securities Co., 60 S.W.2d 636; State ex rel. Highway Comm. v. Freehold Inv. Co., 227 Mo.App. 337, 52 S.W.2d 578; Met. St. Ry. Co. v. Walsh, 197 Mo. 418.

Hays, J. All concur, except Coles, J., not sitting.

OPINION

HAYS

This is a proceeding brought by the city of St. Louis under Ordinance No. 38,649 to condemn property for a public highway to be known as route No. 99 and for the establishment of a traffic circle at the street intersection formed by the convergence, near the northern limits of the city, of Halls Ferry road, Goodfellow Avenue and Kingshighway Northwest. The map below shows the location of the properties of respondents which are affected by the appropriation.

[SEE ILLUSTRATION IN ORIGINAL]

At the date of the appropriation, August 9, 1930, the effective date of the ordinance, all the converging highways, except No. 99, had been established. Kingshighway runs through the entire city; Goodfellow Avenue runs to Delmar Avenue; Halls Ferry road runs from Baden to the Lewis and Clark Bridge spanning the Missouri River. The unusual convergence of so many important thoroughfares forms a unique street intersection in a locality which, within a few years before the appropriation, had emerged from the market-garden state into subdivisions with strategic corner lots adapted to utilization for commercial purposes, and others, with street frontage, for residential purposes, as the result, primarily, of the city's trend of expansion, and, secondarily of the construction of sewers and of the paving of these thoroughfares, except No. 99 and Kingshighway toward the east, and others.

Upon examination of the map it may be observed that the projecting corners of respondents' lands in suit (Buselaki's parcel marked "No. 1" and respondents Hampton Company and Yore's parcel marked "No. 2") are appropriated by the traffic circle, which has a radius of 185 feet. The sector thus taken off the entire Buselaki parcel contains an area of 8,196 square feet, with one of its radii, 116 feet, on Goodfellow Avenue and the other, 123 feet, on Kingshighway, Northwest; while the sector taken from the Hampton-Yore parcel has an area of 10,685 square feet, with one of its radii, 140 feet, on Goodfellow and the other, 125 feet, on Halls Ferry road.

The commissioners who assessed the damages and benefits to said properties (and other property not involved in this appeal), serving under appointment of the circuit court, made due report on December 9, 1930, in which report they assessed the net damages to the Buselaki parcel at $ 16,392, and to the Hampton-Yore parcel at $ 21,368. On the trial had on exceptions filed by the appellant the circuit court approved and confirmed the commissioners' report. From that decision and judgment the city appealed.

To reverse the judgment the appellant presents these points -- not here given in the same order; I, that respondents' witnesses, save one, in giving their estimates of damages failed to appraise the entire parcel as of before the part is taken, next to appraise the remainder left and then fix the damages at the difference between the two values; II, that the court admitted and refused to strike out testimony based on speculative and future values, and testimony calculated to compel the appellant to pay more for the property because it was taking the same by condemnation; III, that...