Hamer v. State Highway Commission

• Decision Date: 09 September 1957
• Docket Number: No. 45679,No. 2,45679,2
• Citation: 304 S.W.2d 869
• Parties: Frank HAMER, Doing Business as Frank Hamer Realty Company, appellant, v. STATE HIGHWAY COMMISSION of the State of Missouri, and Rex M. Whitton, Chief Engineer of the State Highway Commission of the State of Missouri, Respondent
• Court: Missouri Supreme Court

Page 869

304 S.W.2d 869

Frank HAMER, Doing Business as Frank Hamer Realty Company, appellant, v. STATE HIGHWAY COMMISSION of the State of Missouri, and Rex

M. Whitton, Chief Engineer of the State Highway

Commission of the State of Missouri, Respondent.

No. 45679.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1957.

Edwin C. Orr, Columbia, Williams & Norton, North Kansas City, for appellant.

Robert L. Hyder, Minor C. Livesay, Wilkie Cunnyngham, Jefferson City, for respondents.

STOCKARD, Commissioner.

Plaintiff has appealed from the judgment of the trial court dismissing his petition for failure to state a claim upon which relief can be granted. Jurisdiction is in this court because by his petition plaintiff seeks damages in the amount of $148,000, Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, and also, because the determination of the issues in this case necessarily involves the construction of Article I, Section 26, Constitution of Missouri, V.A.M.S., Midwest Bible & Missionary Institute v. Sestric, 364 Mo. 167, 260 S.W.2d 25.

We need to set out only the substance of the allegations of the petition. Plaintiff alleged that on May 1, 1954, he purchased approximately 250 acres of land in Clay County, Missouri, and then started to develop it as a subdivision to be known as Hamilton Heights. In doing so he 'laid out, planned, located the lots, streets and sewer ways.' Shortly thereafter he was 'plainly, positively and factually' told by agents of the Missouri State Highway Commission that a new limited access highway was to be constructed over a part of his land, and that he should not develop that part which was to be used for right-of-way purposes because if he did so the improvements placed thereon would be lost to him. Thereafter plaintiff examined the plans and surveys prepared by the Highway Commission for the proposed highway, which showed that it would cross over his land, and he then 'did replan, redesign and replot and rebuild his whole plan of subdividing' his land to conform to the plans of the Highway Commission. In April 1955 a representative of the Highway Commission appraised plaintiff's property and attempted to negotiate with him for the purchase of the right-of-way over his land, but plaintiff declined because he needed more time to determine the proper price. Two weeks later he was advised that the Highway Commission 'had changed its mind,' that the location of the proposed highway had been changed, and that no land of plaintiff's was to be taken for highway purposes. Plaintiff then alleged that by reason of the acts of the Highway Commission his property has been taken for public use and has been damaged without just compensation in the amount of $148,000, for which amount he prayed judgment.

In plaintiff's brief he states that he does not contend that the Highway Commission actually at any time physically invaded or trespassed on his property, and it is further stated that 'the theory of appellant's case, as alleged in his petition, is neither in tort nor in contract, but is based squarely on the proposition that private property shall not be taken or damaged, for public use, without just compensation.' We are not concerned with the question of whether the Highway Commission is liable for the torts of its agents, and if so, whether the above alleged occurrences would give rise to a cause of action in tort. We have the sole question of whether the above acts constitute a taking or damaging of plaintiff's property within the meaning of Art. I, Sec. 26, Constitution of Missouri 1945, which, in the part here material, provides 'That private property shall not be taken or damaged for public use without just compensation.'

Prior to 1875 the Constitution of Missouri provided that no private property ought to be taken or applied to public use without just compensation. Art. I, Sec. 16, Constitution of Missouri 1865. Subsequent to 1870 several of the states, the first being Illinois, altered their organic law to provide that private property shall not be taken or damaged for public use without just compensation. II Nichols, Eminent Domain, 3d Ed., Sec. 6.44. Missouri first adopted such a provision in 1875. Art. II, Sec. 21, Constitution of Missouri 1875. In referring to the purpose and effect of this change, this court has stated: 'The amendment must be construed and applied in view of the evils which it was designed to remedy. We have seen that before this amendment there were many cases where the corpus of the property was not taken, yet rights directly annexed to the property were injured, and that for such consequential damages the property owner had no remedy, because the act was authorized by law. Whether the plaintiff must now, in all cases, when claiming that his property has been 'damaged' for public use, show that the injury is one for which he might have maintained an action if the act had not been done by authority of law, we need not say in this case. What we do say is this: that he must show that the property itself, or some right or easement connected therewith, is directly affected, and that it is specially affected.' Van De Vere v. Kansas City, 107 Mo. 83, 17 S.W. 695, 697, 28 Am.St.Rep. 396. See also Funke v. City of St. Louis, 122 Mo. 132, 26 S.W. 1034; Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024, 17 A.L.R. 543; State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 92 A.L.R. 373; State ex rel. State Highway Commission v. Blobeck Investment Company, 233 Mo.App. 858, 110 S.W.2d 860. The Supreme Court of Illinois has construed the 'taking or damaging' provision in the Illinois Constitution, S.H.A.Const. art. 2, Sec. 13, as follows: 'The rule is that in all cases, to warrant recovery, it must appear that there has been some direct disturbance of a right which the plaintiff enjoys in connection with his property and which gives to it an additional value, and that by reason of the disturbance of that right he has sustained special damage with reference to his property, in excess of that sustained by the public generally.' Eckhoff v. Forest Preserve Dist. of Cook County, 377 Ill. 208, 36 N.E.2d 245, 247. See also Rigney v. City of Chicago, 102 Ill. 64 and Chicago v. Taylor, 125 U.S. 161, 8 S.Ct. 820, 31 L.Ed. 638.

While it is not always necessary that there be an actual physical taking of any part of property in order to have a taking or damaging thereof within the meaning of Art. I, Sec. 26, Constitution of Missouri 1945, Prairie Pipe Line Company v. Shipp, 305 Mo. 663, 267 S.W. 647, it is necessary that there must be an invasion or an appropriation of some valuable property right which the landowner has to the legal and proper use of his property, which invasion or appropriation must directly and specially affect the landowner to his injury. Van De Vere v. Kansas City, supra; Funke v. City of St. Louis, supra; State ex rel. St. Louis v. Beck, supra; State ex rel. State Highway Commission v. Blobeck Inv. Co., supra; Newman v. City of El Dorado Springs, Mo.App., 292 S.W.2d 314; Spurrier v. Mitchell Irrigation District, 119 Neb. 401, 229 N.W. 273, 74 A.L.R. 884, certiorari denied 283 U.S. 796, 51 S.Ct. 484, 75 L.Ed. 1420; City of Chicago v. Spoor, 190 Ill. 340, 60 N.E. 540; Hohmann v. City of Chicago, 140 Ill. 226, 29 N.E. 671; Eckhoff v. Forest Preserve District of Cook County, supra; 29 C.J.S. Eminent Domain Sec. 110; II Nichols, Eminent Domain, 3d Ed., Sec. 6.4432; I Lewis, Eminent Domain, 3d Ed., Sec. 366.

In this case plaintiff does not contend that there has been any actual or physical taking of his property. Therefore, the precise question presented is whether the following occurrences constitute an invasion or appropriation of any valuable right of plaintiff for the proper and legal use of his property within the meaning of Art. I, Sec. 26, Constitution of Missouri: (1) the preparation of plans and surveys of the Highway Commission for the construction of a proposed highway over plaintiff's land, (2) the notice to plaintiff by the Highway Commission of its intention to construct a highway over his land and the action of the Highway Commission in making available to plaintiff its plans and surveys for the proposed highway, (3) the change by plaintiff of his plans for the future use of his land to conform to the plans of the Highway Commission to use a portion of his land for highway purposes, (4) the attempted negotiation with plaintiff for the purchase of the land needed for the highway right-of-way, and (5) the subsequent announcement of the Highway Commission that it had abandoned its plans to construct the proposed highway on the lands of plaintiff.

'It is the general rule that a mere plotting or planning in anticipation of a public improvement is not a taking or damaging of the property affected.' Annotation, 64 A.L.R. 546. Also, 'land is not damaged by reason of preliminary procedure looking to its appropriation to a public use.' Eckhoff v. Forest Preserve District of Cook County, 377 Ill. 208, 36 N.E.2d 245, 248; City of Chicago v. Lederer. 274 Ill. 584, 113 N.E. 883; In re Appointment of Viewers, 103 Pa.Super. 212, 158 A. 296; Miller v. City of Beaver Falls, 368 Pa. 189, 82 A.2d 34; City of Miami v. Romer, Fla., 73 So.2d 285; In re Northern Boulevard, in Borough of Queens, City of New York, 281 N.Y. 48, 22 N.E.2d 157; Annotation, 64 A.L.R. 546; 29 C.J.S. Eminent Domain Sec. 135. This is a sound rule supported by the logic of the situation, and in the public interest the rule could not be otherwise. Also, it has properly been held that the serving or giving of notice of intention to condemn (Department of Public Works and Buildings v. Wolf, 414 Ill. 386, 111 N.E.2d 322; Eckhoff v. Forest Preserve Dist. of Cook County, supra; Schumann v. United States, 64 Ct.Cl. 607; 29 C.J.S. Eminent Domain Sec. 135), the actual filing of the condemnation petition (State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 92 A.L.R. 373; 29...