City of St. Louis v. Gerhart Realty Co.

• Citation: 40 S.W.2d 661,328 Mo. 103
• Parties: City of St. Louis, Appellant, v. Gerhart Realty Company
• Decision Date: 24 June 1931
• Court: United States State Supreme Court of Missouri

40 S.W.2d 661

328 Mo. 103

City of St. Louis, Appellant, v. Gerhart Realty Company

Supreme Court of Missouri

June 24, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Anthony Ittner, Judge.

Reversed and remanded.

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

(1) Offers or incompleted negotiations for sales or leases of property are not competent evidence to prove value. Metropolitan Street Ry. Co. v. Walsh, 197 Mo. 415; Sharp v. United States, 191 U.S. 34, 48 L.Ed. 211; 2 Lewis, Eminent Domain (3 Ed.), sec. 666, p. 1145; 2 Nichols Eminent Domain, sec. 456, p. 1201; Chi. M. & St. P. Ry Co. v. Alexander, 47 Wash. 134, 91 P. 626; Williams v. Hewett, 57 Wash. 62, 106 P. 496; Hines v. Ry Co., 132 N.Y. 477; Oregon-Washington Railway Nav. Co. v. Campbell, 34 Idaho 605. (2) 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. v. Blechle, 234 Mo. 471; 2 Lewis, Eminent Domain (3 Ed.), sec. 669, p. 1150; 2 Nichols, Eminent Domain, sec. 456, p. 1199. (3) No damages can be claimed from the city in condemnation proceedings because of acts of parties unconnected with the city, nor can damages be claimed on account of acts which do not infringe any legal right or easement. Union Elevator Co. v. Ry. Co., 135 Mo. 353; Funke v. St. Louis, 122 Mo. 132; Van de Vere v. Kansas City, 107 Mo. 83. (4) In a proper case the Supreme Court will set aside an order of the circuit court confirming a commissioners' report in condemnation proceedings under the St. Louis Charter. St. Louis v. Smith, 30 S.W.2d 729. (5) Mere speculative opinions of witnesses are not substantial evidence when opposed to and contradicted by sales and actual transactions in the neighborhood, especially when no valid reasons are given for such opinions. St. Louis, etc., Ry. Co. v. Clark, 121 Mo. 185; Mayor, etc., of Baltimore v. Brick Co., 31 A. 426; Paducah v. Allen, 63 S.W. 983; Matter of City of New York, 118 A.D. 272; A. C. & H. N. Hall Realty Co. v. Moos, 192 N.Y.S. 530.

Marion C. Early and Ivon Lodge for respondent.

(1) The appellant, by voluntarily paying the judgment and continuing to collect the benefit judgments levied as special liens against the property of more than forty other defendants, has recognized the validity of the judgment appealed from and waived its rights to prosecute this appeal. Appellate courts do not sit to decide moot questions. Art. 21, sec. 8, Charter of City of St. Louis; Trammel v. Kirk, 278 S.W. 739; Berry v. Fire Ins. Co., 298 S.W. 65; Fugel v. Becker, 2 S.W.2d 746; State ex rel. Ashton v. Imel, 243 Mo. 174; 3 C. J. 669; 3 C. J. 358-361. (2) This court will not disturb the action of the circuit court in sustaining respondent's exceptions to the first commissioners' report, since, under the provisions of the Charter of St. Louis, that question was left to the sound discretion of the trial court. Art. 21, sec. 7, Charter of St. Louis; St. Louis v. Buss, 159 Mo. 9; Tarkio Drainage Dist. v. Richardson, 237 Mo. 49. (3) This court will not interfere with the action of the trial court in overruling appellant's exceptions to the second report, which report was supported by a vast preponderance of the evidence. Appellate courts will not disturb a judgment awarding damages in the presence of substantial supporting evidence. Bates v. Sickel, 267 S.W. 650; City v. Smith, 30 S.W.2d 729; City v. Worthington, 19 S.W.2d 1066; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663; Drainage Dist. v. McCormick, 260 S.W. 77. (4) This court will not reverse and remand this case, even if it should find that some evidence was admitted that was irrelevant and immaterial. The record discloses that the trial court had a clear conception of the proper elements of damages governing the case, the evidence supporting the finding is almost conclusive, and there is nothing to sustain appellant's contention that the court was misled by any immaterial evidence. The trial was before the court without a jury and the findings are correct. Bates v. Sickel, 267 S.W. 650; City v. Smith, 30 S.W.2d 732; R. S. 1929, sec. 1062; Gary v. Averill, 12 S.W.2d 750; Julian v. Calkin, 85 Mo. 202.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is a proceeding brought by the city of St. Louis under the provisions of Ordinance No. 32785, passed in February, 1924, which authorized the condemnation of private property necessary to extend a street known as Kingsbury Place east about 110 feet to DeBaliviere Avenue. The Gerhart Realty Company, a corporation, respondent here, owned an unimproved tract of land fronting 200 feet on the west side of DeBaliviere Avenue, about 100 feet deep. The extension of Kingsbury Place took a strip 50 feet wide through this lot, leaving a lot of about 121 feet on the north side of the extension and a lot about 28 feet wide on the south side. The land taken from respondent's lot was the only land taken in the proceedings except a ten-foot strip in the rear of respondent's lot, which was held in the name of G. H. Dudley, trustee, as a passageway for other owners. A benefit district was created by the ordinance, which included the property of about forty-three other defendants.

Commissioners were appointed to assess the benefits and damages. Respondent's damages were assessed at $ 18,750. Benefits of $ 5,000 were assessed against the southern 50 feet of the large remaining lot, and $ 2100 against the small remaining lot. This left a net award of damages over benefits of $ 11,650. Respondent filed exceptions to the commissioners' report and a hearing was had thereon. The court sustained respondent's exceptions to the report and appointed other commissioners to make a new report. These commissioners allowed damages of $ 32,500 for the land taken and consequential damages to the smaller remaining lot of $ 5,600, making a total of $ 38,100. They assessed benefits of $ 4,375 against the southern 75 feet of the large remaining lot and of $ 1400 against the small remaining lot, leaving a net amount of damages over benefits of $ 32,325. Both appellant and respondent filed exceptions to this report and a trial was had thereon. The court entered judgment confirming the second report, and this appeal is from that judgment. The evidence taken at both trials is preserved in the bill of exceptions.

The second award was on the basis of the valuation of $ 650 per front foot for respondent's property actually taken. Appellant's witnesses testified that the property was only worth from $ 350 to $ 400 per front foot and that the benefits to the remaining property were much greater than the commissioners assessed. The net award was from two to three times as large as their testimony tended to show the excess of damages over benefits actually was. Appellant also introduced evidence to show that the president of respondent company and some of its witnesses testified before the first commissioners that the value of the property was about $ 500 per front foot. Appellant's witnesses at the second trial also testified to the knowledge of many actual sales on DeBaliviere Avenue, between 1919 and 1927, which they said were in accordance with their valuation of respondent's property, considering their appraisal of the improvements on these properties sold, and deducting that from the total sale price.

Respondent's witnesses at the second trial testified that respondent's property was worth about $ 800 per front foot. They testified that the sales upon which appellant's witnesses based their valuations were of lots of smaller frontage; that such lots were of less value than a lot with the frontage of respondent's lot, because they were suitable only for small buildings, whereas respondent's lot was suitable for a large apartment or hotel building with stores on the ground floor; that DeBaliviere Avenue was an excellent location for such a building; and that there were very few lots available on it large enough for this type of building.

Respondent was permitted over appellant's objection to introduce testimony concerning a proposal to lease respondent's entire 200-foot lot to one Rice for a hotel which Mr. Rice was to erect on the lot. Mr. Rice testified that no lease was made and that no papers were even drawn up. He said that the agreement was blocked by the condemnation proceeding. Over the objection of appellant he was permitted to testify that a nine-story hotel was to be built, with 200 rooms on the upper floors, ten stores on the ground floor on DeBaliviere Avenue, with three shops, a tea room and a dining room in the rear; that he was to take a lease on the entire building; and that he was to pay six per cent on a ground value of $ 1,000 per front foot and eight per cent on the building cost. Plans for the building were introduced in evidence. The architect who drew the plans was also permitted, over appellant's objection, to testify in detail as to the plans for the building.

Evidence was also introduced over the objection of appellant that there was a 40-foot strip of land west of respondent's lot, running from the east end of Kingsbury Place north to Westminster, the next street north, adjoining and parallel to the G. H. Dudley passageway. This strip was used as a private street. By special warranty deed the owner of the property which lay west of respondent's lot and which was subdivided into lots on each side of Kingsbury Place provided that the owners of the lots abutting Kingsbury Place should have an easement over it as a private roadway until it was abrogated by mutual consent. It was further provided in the deed that in case this street (Kingsbury Place) should be continued to DeBaliviere Avenue, the easement over this strip for...