Hill-Behan Lumber Co. v. State Highway Com'n

• Decision Date: 13 March 1941
• Docket Number: 37188
• Citation: 148 S.W.2d 499,347 Mo. 671
• Parties: Hill-Behan Lumber Company, a Corporation, Appellant, v. State Highway Commission
• Court: Missouri Supreme Court

148 S.W.2d 499

347 Mo. 671

Hill-Behan Lumber Company, a Corporation, Appellant, v. State Highway Commission

No. 37188

Supreme Court of Missouri

March 13, 1941

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Affirmed and remanded (with directions).

Jacob M. Lashly, Arthur V. Lashly and Frank E. Atwood for appellant.

(1) The court erred in sustaining defendant's motion for a new trial because plaintiff's private property was damaged for public use without just compensation, within the meaning of Section 21, Article II, of the Constitution of Missouri which forbids that such be done. Sec. 21, Art. II, Mo. Const (2) Plaintiff-appellant is an abutting landowner and has rights of ingress and egress appurtenant to such land over the highway in question, which rights constitute private property. 45 A. L. R. 537; 47 A. L. R. 902; 2 Elliott on Roads & Streets (3 Ed.), sec. 882, p. 1153; 29 C. J., p. 517 sec. 263, notes 63-66; Rude v. St. Louis, 93 Mo. 408, 6 S.W. 257; Heinrich v. St. Louis, 125 Mo. 427, 28 S.W. 626; McQuillin on Municipal Corps. (2 Ed.), sec. 1526; Ver Steeg v. Wabash Ry. Co., 250 Mo. 61, 156 S.W. 692; Siemers v. St. Louis Elec. Term. Ry. Co., 125 S.W.2d 868, 343 Mo. 1201. (b) These property rights of abutting owners exist whether the highway and abutting property are located within or without the boundaries of a municipality. 75 L. R. A., p. 50; Pearsall v. Eaton County, 74 Mich. 558, 4 L. R. A. 193, 42 N.W. 77; 1 Lewis on Eminent Domain (3 Ed.), secs. 120, p. 178, and sec. 205, p. 386; Robinson v. Springfield Southwestern Ry. Co., 126 S.W. 994, 143 Mo.App. 270; Barham v. Grant, 185 Ga. 601, 196 S.E. 45; Morris v. Coving County, 118 Miss. 875, 80 So. 337; Delaware County v. Wakeman, 168 Misc. 644, 6 N.Y.S. (2d) 167; Adams v. Grapotte, 69 S.W.2d 462; Dudding v. White, 82 W.Va. 542, 96 S.E. 942; Pearsall v. Board of Supervisors, 74 Mich. 558, 42 N.W. 77; Jones Island Realty Co. v. Middendorf, 191 La. 456, 185 So. 881. (c) There is no distinction between defendant and a municipality under this constitutional provision. St. Louis v. Gurno, 12 Mo. 419; Zoll v. St. Louis County, 124 S.W.2d 1172, 343 Mo. 1031. (d) The record abundantly shows that, in ordering, constructing and maintaining the viaduct, defendant substantially destroyed plaintiff's rights of ingress and egress in his private property, but, even if plaintiff's damages be deemed consequential, as distinguished from direct, damages, these property rights are within the protection of this constitutional provision, and plaintiff is entitled to compensatory damages. State ex rel. Becker v. Wellston Sewer Dist., 58 S.W.2d 992, 332 Mo. 547; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 943; Hill-Behan Lbr. Co. v. Skrainka Const. Co., 341 Mo. 156, 106 S.W.2d 486. (2) Just compensation is an element of "due process." Although the constitutional prohibition against the taking of property without "due process" of law contained in Amendment XIV, Section 1, of the Federal Constitution, which operates as a limitation upon the states, does not expressly mention compensation, "just compensation," made or secured, is required as an element of "due process" of law with respect to the taking of private property, or any of its attributes, for a public use. Consolidated Turnpike Co. v. Norfolk & Ocean View Ry. Co., 228 U.S. 326, 57 L.Ed. 857; McCoy v. Union Elevated Railroad Co., 247 U.S. 357, 62 L.Ed. 1156; Roberts v. New York City, 295 U.S. 264, 79 L.Ed. 1429; State ex rel. Carter v. Harper, 188 Wis. 148, 196 N.W. 451; Marin Mun. Water Dist. v. Marin Water & Power Co., 178 Cal. 308. (3) Any substantial interference with the use of the land constitutes a "taking" of property within the meaning of the "due process" clause of the Federal Constitution. Where, as here, the evidence shows that the construction of a public improvement by the State upon a highway results in a substantial interference with the common, ordinary and best use of the adjacent land, such interference constitutes a "taking" of property, although there is no physical invasion of the land itself, and the "due process" clause of Amendment XIV, Section 1, of the Federal Constitution providing "nor shall any State deprive any person of life, liberty or property, without due process of law," requires that the State pay compensation therefor to the abutting owner. U.S. Const., Amendment XIV, Sec. 1; Pumpelly v. Green Bay & Miss. Canal Co., 173 Wall. 166, 20 L.Ed. 557; Averne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 591; State Road Commission v. District Court, 94 Utah 384, 78 P.2d 504; Morrison v. Clackamas County, 141 Ore. 564, 18 P.2d 814; In re Forsstrom, 44 Ariz. 472, 38 P.2d 878. (4) State Highway Commission is suable. Where, as in the instant case, the evidence shows that an abutting landowner's property has been "taken" or "damaged" by a State highway commission or any other governmental agency for public use without just compensation within the meaning and intent of those words as employed in Article II, Section 21, of the Missouri Constitution, such a governmental agency is suable therefor in an action at law instituted by the landowner to recover just compensation and the doctrine that a governmental agency is ordinarily "immune from suit" is not available as a defense. Mo. Const., Art. II, Sec. 21; R. S. 1929, sec. 8102; Hill-Behan Lbr. Co. v. Skrainka Constr. Co., 341 Mo. 156, 106 S.W.2d 485; State ex rel. State Highway Comm. v. Bates, 317 Mo. 619, 296 S.W. 418; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 939; State ex rel. v. Daues, 322 Mo. 376, 15 S.W.2d 815; State ex rel. St. Louis v. O'Malley, 122 S.W.2d 940; Robinson v. Poplar Bluff, 293 S.W. 503; Campbell v. Arkansas State Highway Comm., 183 Ark. 780, 38 S.W.2d 753; Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 843; Perkerson v. State Highway Board, 56 Ga.App. 316, 192 S.E. 475; Dunne v. State, 162 Md. 274, 159 A. 756; Kentucky State Park Comm. v. Wilder, 260 Ky. 190, 84 S.W.2d 38; Jefferson County v. Bischoff, 238 Ky. 176, 37 S.W.2d 24; Pelt v. Louisiana State Live Stock Sanitary Board, 178 So. 644; Arkansas State Highway Comm. v. Butler, 105 F.2d 732; 20 A. L. R. 516-520.

Louis V. Stigall and Wilkie Cunnyngham for respondent.

(1) Plaintiff's real complaint is not that its access to the highway has been cut off or decreased, but rather that, after it has gained access to the highway, it has to drive a few feet farther from three of its entrances in order to get onto the viaduct to go east over the railroad tracks or has to make two left-hand turns, instead of one right-hand turn, to get to these three entrances when coming from the east. After traffic has gained access to a highway or street, its regulation or control under the police power of the State gives no cause of action. Jones Beach Blvd. Estate v Moses, 268 N.Y. 362, 197 N.E. 313, 100 A. L. R. 487; Gilsey Buildings, Inc., v. Incorporated Village of Greatneck Plaza, 11 N.Y.S. 694; Cavanaugh v. Gerk, 313 Mo. 375, 280 S.W. 51. Even if there had been an interference with (but not a total destruction of) plaintiff's access by a change of grade in a highway outside of a municipal corporation no cause of action would have been created. Any damage from such a change of grade would be damnum absque injuria -- damage without legal fault or injury. The mere fact that one may suffer actual financial damage does not necessarily give him a cause of action against some one else. He has a cause of action against some defendant only where he, as plaintiff, has a legal right; the defendant owes him a legal duty or obligation; and the defendant violates plaintiff's right. Before plaintiff has a cause of action he must be able to put his finger on some legal right which he has and which the defendant had violated. 1 C. J. 964-966, secs. 57-59; 17 C. J. 718, sec. 54; Anderson v. Inter-River Drain. & L. Dist., 309 Mo. 189, 274 S.W. 448. (2) Article II, Section 21 of the Missouri Constitution created no new rights or duties in substantive law -- it deals only with remedies in adjective law. It did not purport to create private property or legal rights where none existed before in order that they might be "taken" or "damaged." Bush v. State Highway Comm., 329 Mo. 843, 46 S.W.2d 854; Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168; Sigler v. Inter-River Drain. Dist., 311 Mo. 175, 279 S.W. 50; Collier v. C. & A. Ry. Co., 48 Mo.App. 401; Thompson v. C., M. & St. P. Ry. Co., 137 Mo.App. 68, 119 S.W. 509; Gaus & Sons Mfg. Co. v. St. Louis, K. & N. Ry. Co., 113 Mo. 308; Scott v. Marshall, 110 Mo.App. 183, 85 S.W. 98; Gamble v. Pettijohn, 116 Mo. 379, 22 S.W. 783; McCulloch Co. Electric Co-Op. v. Hall, 131 S.W.2d 1019; Union Elevator v. K. C. Belt Ry. Co., 135 Mo. 353, 36 S.W. 1071; Tate v. State Highway Comm., 226 Mo.App. 1216, 49 S.W.2d 282. The dedication of right-of-way to public highway purposes gives the public the right to do in the road whatever may be found necessary to properly serve the needs of highway traffic. Broadwell v. City of Kansas, 75 Mo. 213; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258; Sauer v. New York, 206 U.S. 536, 27 S.Ct. 686, 58 L.Ed. 1176; Zoll v. St. Louis County, 343 Mo. 1031; Grover v. Cornet, 135 Mo. 29, 35 S.W. 1145; State ex rel. State Highway Comm. v. Bailey, 115 S.W.2d 17; State ex rel. State Highway Comm. v. Cox, 336 Mo. 281, 77 S.W.2d 220; Riggs v. Springfield, 344 Mo. 420, 126 S.W.2d 1144; St. Louis K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192; Moss v. St. Louis, I. M. & S. Ry. Co., 85 Mo. 89; Hutchings v. Wabash Ry. Co., 224 Mo.App. 1124. Offsetting or balancing against the increased demands of the public on the highway, with the passage of time, are the increased demands upon, and uses of, the...