City of St. Louis v. Senter Commission Co.

• Decision Date: 05 October 1937
• Citation: 108 S.W.2d 1070,233 Mo.App. 804
• Parties: CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, PLAINTIFF, v. SENTER COMMISSION COMPANY ET AL., DEFENDANTS, JOHN R. THOMPSON COMPANY, A CORPORATION (DEFENDANT) APPELLANT, CHARLES S. BLOOD ET AL., (DEFENDANTS) RESPONDENTS
• Court: Missouri Court of Appeals

108 S.W.2d 1070

233 Mo.App. 804

CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, PLAINTIFF, v. SENTER COMMISSION COMPANY ET AL., DEFENDANTS, JOHN R. THOMPSON COMPANY, A CORPORATION (DEFENDANT) APPELLANT, CHARLES S. BLOOD ET AL., (DEFENDANTS) RESPONDENTS

Court of Appeals of Missouri, St. Louis

October 5, 1937

Appeal from the Circuit Court of City of St. Louis.--Hon. Robert W Hall, Judge.

AFFIRMED.

Judgment affirmed.

Richard S. Bull and Carter & Jones for appellant.

(1) A lessee for years has an interest in property condemned such as requires compensation therefor. City of St. Louis v Rossi, 333 Mo. 1092, 64 S.W.2d 600; Biddle v Hussman, 23 Mo. 597; McAllister v. Reel, 53 Mo.App. 81; 1 Nichols, Eminent Domain (2 Ed.), Sec. 119, p. 337 et seq.; 2 Lewis, Eminent Domain (3 Ed.), Sec. 326; 2 Tiffany, Landlord & Tenant, Sec. 354, p. 2130 et seq.; 10 R. C. L. 135. (2) City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600; State ex rel. McCaskill v. Hall, 28 S.W.2d 80. (3) St. Louis v. Abeln, 170 Mo. 318, 70 S.W. 708, 710; McMillan Printing Co. v. Railroad, 216 Pa. 504, 65 A. 1091; Des Moines Laundry v. Des Moines, 197 Iowa 1082, 198 N.W. 486; 10 R. C. L., Em. Dom., Sec. 120, p. 137; 1 Nichols, Em. Dom. (2 Ed.), Secs. 233, 234, pp. 714-717; 2 Lewis, Em. Dom. (3 Ed.), Sec. 727. (5) In apportioning the fund awarded in condemnation, as between the lessor and lessee under a long term lease terminated thereby, evidence of the cost and value of the improvements and fixtures placed in the building by the lessee is admissible, and the lessee should be compensated therefor out of such fund. St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600; St. Louis v. Senter Commission Co., 82 S.W.2d 87; St. Louis v. St. L. etc. Ry. Co., 266 Mo. 694, 182 S.W. 750; Des Moines Laundry v. Des Moines, 197 Iowa 1082, 198 N.W. 486; In re Water Front, 192 N.Y. 298, 84 N.E. 1105; In re Block Bounded by Avenue A, 122 N. Y. S., 321; Fargo v. Browning, 61 N. Y. S., 301, 45 A.D. 507; North Coast R. Co. v. Kraft Co. (Wash.), 115 P. 97, 101-102; 11 R. C. L., "Fixtures," Secs. 13-15, pp. 1069-1071; 16 R. C. L., "Landlord & Tenant," Sec. 282, p. 788; 26 C. J., "Fixtures," Sec. 106, pp. 714-715; Handlan v. Stifel, 232 S.W. 245; Sharp v. Niagara Fire Ins. Co., 147 S.W. 154, 164 Mo.App. 475; Weeks-Betts Hdw. Co. v. Lead Co., 153 Mo.App. 387, 134 S.W. 35; McLain Inv. Co. v. Cunningham, 87 S.W. 605, 113 Mo.App. 519; Davis v. Mugan, 56 Mo.App. 311, 316; Pause v. Atlanta, 98 Ga. 92, 26 S.E. 489; Cornell-Andrews Smelting Co. v. Railroad (Mass.), 95 N.E. 887, 892; Bales v. Railroad (Kan.), 141 P. 1009; King v. Railway, 32 Minn. 224-226; Dupuis v. Railroad (Ill.), 3 N.E. 720; Railroad v. Patterson, 107 Pa. St., l. c. 465; 1 Nichols, Em. Dom. (2 Ed.), Secs. 233, 234, p. 714 et seq.; 2 Lewis, Em. Dom. (3 Ed.), Sec. 727.

Frank X. Hiemenz for respondents.

(1) In condemnation, loss of profits and interference with business is not an element of damage. St. Louis v. St. L. I. M. & S. Ry. Co., 266 Mo. 694. (2) The lessee is entitled to the reasonable market value of the unexpired term of his lease on the date possession was surrendered to the condemner. McAllister v. Reel, 53 Mo.App. 81, 59 Mo.App. 70.

BECKER, J. Hostetter, P. J., and McCullen, J., concur.

OPINION

BECKER, J.--

This appeal arises out of a suit in condemnation brought by the city of St. Louis to condemn land for the purpose of widening Market street. Among the defendants in that action was the appellant herein, John R. Thompson Company, a corporation, and the respondents Charles S. Blood, et al. The property involved in the instant case was the premises known as 604 Market street, owned by respondents Blood, the reversioners in fee, following a lease for ninety-nine years made in 1913 to John R. Thompson, who assigned the lease, in 1924, to the John R. Thompson Company, a corporation.

Upon the condemnation suit being filed by the city of St. Louis, a commission was appointed but exceptions were sustained to its award for this particular piece of property and a new commission appointed, to whose award in the sum of $ 70,091.66 no exceptions were filed, and the city of St. Louis, on May 25, 1932, paid the amount of the said award into the registry of the court for the use of the parties lawfully entitled thereto.

Thereafter the respondents, reversioners Charles S. Blood, et al., filed their application for payment of the entire award to them, and appellant John R. Thompson Company filed its application to have a portion of the award allocated and paid to it. From the judgment directing payment of the entire award to respondents Blood, et al., and denying the motion of appellant John R. Thompson Company to any part of the fund, the said Thompson Company in due course appeals.

At the hearing of the case the lessee introduced in evidence the lease upon the property. It ran for a term of ninety-nine years beginning January 1, 1913, and ending December 31, 2011. The rental prescribed was in the aggregate sum of $ 430,500, being at the rate of $ 3600 per annum for the first ten years; $ 4200 per annum for the succeeding twenty years; and $ 4500 per annum for the balance of the term. The lessee, in addition, covenanted to pay all general and special taxes and all assessments and charges whatsoever which should be assessed against the demised premises or its improvements during the term of the lease. The lessee further covenanted to keep the premises insured, and agreed, in the event of a total destruction of the building, to erect a new building to cost not less than $ 45,000. The lease further provided that the lessee, at his own cost and expense, place the building then upon the demised premises in first class condition and repair, and that he expend in said permanent repairs, alterations and improvements the sum of not less than $ 10,000. The lessee had the privilege at any time during the term of the lease, to tear down any buildings which were then on said premises and construct a new modern building at his own expense, to cost not less than $ 45,000, provided that before proceeding to wreck and remove any of the buildings on the leased premises, the lessee execute and deliver to the lessors a bond in the penal sum of $ 45,000, to assure the proper construction of a building as required by the terms of the lease.

The lease further provided that the lessee keep the improvements upon the demised premises in good order and repair so that the same shall not substantially deteriorate, and upon termination of the lease surrender them to the lessor in good repair and condition, ordinary wear and tear alone excepted.

Over objection of counsel for the owners, and subject thereto, witnesses for the lease were permitted to testify that prior to the time of the execution of the lease in question, the building was in very bad repair, "the walls were partly down, the joists were rotted away, and most of the foundation gone. The floors of the upper stories were all gone and it was a very cheap lodging house; there wasn't any plumbing. It was not fit to inhabit or use for any kind of place." Witnesses further testified, over objection of respondents, that the lessee, in the year 1913, expended over $ 32,000 in reconstruction work on the building on the premises; that the net profit of the lessee from the restaurant which it operated in the building varied from year to year, increasing from approximately $ 11,000 in 1914, to a peak of over $ 25,000 in 1921; that after these years there was a falling off in the net profits until the profits in 1925 were but $ 15,000, and thereafter steadily decreased year by year until in 1931 the net profits were $ 4,544.50, and in the first seven months of 1932 the net profits were only $ 1,820.98.

Defendants owners of the property introduced J. H. Farish, Frederick G. Zeibig and Joseph W. Hanneuer, each of whom testified that he was and had been in the real estate business in the city of St. Louis for many years, and was familiar with the property in question as well as the value of property in the surrounding neighborhood. In response to hypothetical questions which contained the pertinent provisions of the lease, such as the rental reserved, the payment of taxes and all assessments by lessee, the obligation of the lessee to make repairs to the building and at the expiration of the lease to turn the building over to the lessor in good repair excepting natural wear and tear thereon, the condemnation of the property and the amount of award allowed therein, each of the witnesses testified that the leasehold estate had no market value either as of the date of May 26, 1932, when the lessee vacated the property, or as of the year 1922 in which the condemnation suit was filed.

Counsel for...