Hill-Behan Lumber Co. v. Skrainka Const. Co.

• Decision Date: 21 June 1937
• Citation: 106 S.W.2d 483,341 Mo. 156
• Parties: Hill-Behan Lumber Company, a Corporation, Appellant, v. Skrainka Construction Company, a Corporation, Scott Wilson, Arthur T. Nelson, H. B. Pyle, Dulany Mahan and H. A. Buehler, constituting the State Highway Commission
• Court: Missouri Supreme Court

106 S.W.2d 483

341 Mo. 156

Hill-Behan Lumber Company, a Corporation, Appellant, v. Skrainka Construction Company, a Corporation, Scott Wilson, Arthur T. Nelson, H. B. Pyle, Dulany Mahan and H. A. Buehler, constituting the State Highway Commission

Supreme Court of Missouri

June 21, 1937

Rehearing Denied June 21, 1937.

Motion to Transfer to Court en Banc Denied June 21, 1937.

Appeal from Circuit Court of City of St. Louis; Hon. Fred E Mueller, Judge; Opinion filed at September Term, 1936 April 21, 1937; motion for rehearing and motion to transfer to Court en Banc filed; motions overruled at May Term, 1937 June 21, 1937.

Affirmed.

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

(1) The Missouri Constitution requires the payment of just compensation for private property "taken" or "damaged" for public use in advance of the taking or of the damaging. Mo. Constitution, Art. II, Sec. 21. (2) Appellant's private property will be "taken" within the meaning of the word "taken" as used in Article II, Section 21 of the Missouri Constitution. Because under the rule announced in the decided cases there is a "taking" of property where (as here) the proposed construction of said viaduct and change in grade of said boulevard will result in a "substantial" impairment of the abutting owner's means of ingress and egress. Knapp & Stout Co. v. Ry. Co., 126 Mo. 26, 28 S.W. 627; Graden v. Parkville, 114 Mo.App. 527, 90 S.W. 115; Williams v. Natural Bridge Plank Road Co., 21 Mo. 580; Thomas v. Hunt, 134 Mo. 392, 35 S.W. 581; Ashurst v. Lohoefner, 170 Mo.App. 327, 156 S.W. 805; Foster Lbr. Co. v. Ry. Co., 20 Okla. 583, 95 P. 224; In re Forsstrom, 38 P.2d 878; Coyne v. Memphis, 118 Tenn. 651, 102 S.W. 355; Nolley v. State ex rel. Neill, 252 S.W. 821; Tiffany on Real Property (2 Ed.), p. 1527, sec. 417. (3) Appellant's private property will be "damaged" within the meaning of the word "damaged" as used in Article II, Section 21 of the Missouri Constitution. Because under the rule announced in the decided cases there is a "damaging" of property where (as here) the proposed construction of said viaduct and change in grade of said boulevard will result in a disturbance of the owner's property or a divestiture of the abutting owner's proprietary rights. Clemens v. Connecticut Life Ins. Co., 184 Mo. 46, 82 S.W. 1; Blackwell v. Lee's Summit, 326 Mo. 491, 32 S.W.2d 63; Press v. Penny, 202 Mo. 98, 145 S.W. 458; Robinson v. Ry. Co., 143 Mo.App. 270, 126 S.W. 994; DeGeofroy v. Merchants Bridge Term. Ry. Co., 179 Mo. 698, 79 S.W. 386; McElroy v. Kansas City, 21 F. 257; Omaha Horse Ry. Co. v. Cable, 32 F. 734; Heorath v. Halpin, 227 Mo.App. 984, 60 S.W.2d 744; 17 C. J., sec. 8, p. 71; 19 C. J., sec. 1, p. 862; 19 C. J., sec. 236, p. 984; 50 C. J., sec. 1, p. 790. (4) Injunction the proper remedy. Where constitutional provisions require the payment of compensation for private property taken or damaged for public use in advance of the taking or of the damaging a court of equity will enjoin the taking or restrain the infliction of damage until compensation is paid. Carpenter v. St. Joseph, 263 Mo. 705, 174 S.W. 53; Graden v. Parkville, 114 Mo.App. 527, 90 S.W. 115; Knapp & Stout Co. v. Ry. Co., 126 Mo. 26, 28 S.W. 627; Ates v. Wills, 243 S.W. 187; 10 R. C. L., sec. 193, pp. 228, 229.

Philip Wise, Louis V. Stigall and Wilkie B. Cunnyngham for respondents.

Our Constitution does not require prepayment of damages, if any, where there is no "taking" of, but only "consequential damages" to, property. Mo. Const. 1820, Art. XIII, Sec. 7; Mo. Const. 1865, Art. I, Sec. XVI; Mo. Const. 1875, Art. II, Sec. 21; McGrew v. Granite Bituminous Paving Co., 247 Mo. 549, 155 S.W. 411; Blackwell v. Lee's Summit, 326 Mo. 491, 32 S.W.2d 63; Clemens v. Conn. Mut. Life Ins. Co., 184 Mo. 46, 82 S.W. 1; Lemon v. Garden of Eden Drainage Dist., 310 Mo. 171; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935; Smith v. Sedalia, 244 Mo. 107; State ex rel. Becker v. Wellston Sewer Dist., 332 Mo. 547, 58 S.W.2d 988; Heorath v. Halpin, 227 Mo.App. 984, 60 S.W.2d 744. There is no rule in this State that an abutting property owner has an easement to light, air and access which is "property" within the meaning of Article II, Section 21, of the Constitution so that the abutting property owner must be prepaid before the State or general public can erect a viaduct to expedite general public travel wholly within the limits of the street, at least where the viaduct does not wholly cut off all ingress and egress from the abutting property to the outside world. Sauer v. New York, 206 U.S. 536, 27 S.Ct. 686, 51 L.Ed. 1176; DeLucca v. North Little Rock, 142 F. 602; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258; Tebbs v. Platte County, 28 S.W.2d 657; State ex rel. Reynolds County v. State Highway Comm., 42 S.W.2d 196. Incorporeal rights or easements, if any, are not "property" within the meaning of the Constitution. Transportation Co. v. Chicago, 99 U.S. 642; Broadwell v. Kansas, 75 Mo. 217. The term "property" in the Missouri Constitution refers to physical or corporeal property, not to incorporeal rights or easements. State ex rel. Becker v. Wellston Sewer Dist., 332 Mo. 547, 58 S.W.2d 988; Van DeVere v. Kansas City, 107 Mo. 90; Blackwell v. Lee's Summit, 326 Mo. 491, 32 S.W.2d 63; Heorath v. Halpin, 227 Mo.App. 984, 60 S.W.2d 744; Clemens v. Conn. Mut. Life Ins. Co., 184 Mo. 57, 82 S.W. 1. There is no authority in the Missouri decisions for the proposition that whether there is a "taking of property," within the meaning of the Constitution, depends upon the degree of damage or upon whether the damage is substantial. Blackwell v. Lee's Summit, 326 Mo. 491, 32 S.W.2d 65; Hickman v. Kansas City, 120 Mo. 115. Appellant's cases are not authority in Missouri for the rule contended for by appellant. Fowler v. Nelson, 213 Mo.App. 82, 246 S.W. 638; Foundry v. Railroad Co., 130 Mo.App. 104, 19 S.W. 80.

OPINION

Tipton, J.

In the Circuit Court of St. Louis County, the appellant filed a petition asking that the respondents be enjoined from proceeding to erect a viaduct in the middle of Page Avenue in that county until the damages, if any, which might result to appellant's abutting property were first ascertained and paid. After hearing the evidence, the trial court dismissed the appellant's petition and entered a judgment for the respondents. From that judgment, the appellant has duly appealed to this court.

The appellant's property is located west of the Wabash Railroad tracks, and on the north side of Page Avenue. On this property it conducts a wholesale and retail lumber and hardware business.

The testimony showed that Page Avenue had a 100-foot right-of-way; that the Public Service Commission of Missouri had ordered a separation of grade between the Wabash Railroad tracks and Page Avenue; that the viaduct when built would occupy a forty-two-foot roadway in the middle of that street; that from the outside of the viaduct to the appellant's property line there would be twenty-seven feet nine inches left on the old street level; that there were buildings or a board fence along the front of appellant's property on Page Avenue so that the only entrance to the property used by it for a lumberyard was through certain gates in the fence or doors in the buildings; and that when the viaduct was completed these entrances from Page Avenue on the old level would be retained.

It was also shown that the grade in front of the west part of appellant's property will not be changed, but the grade at the east boundary line will be raised twenty-four feet. On each side of the viaduct there will be a ramp on the same grade as the present street. These ramps will be between the viaduct and the sidewalk and will be approximately 15 feet wide.

The appellant contends that it will be almost impossible to get a large truck out of its property onto the street, while the respondent had testimony to the effect that a large truck could cross under the viaduct and reach Page Avenue by going west on the ramp south of the viaduct.

We think the evidence on this point is correctly summed up in a memorandum opinion of the trial court, which is as follows:

"I am not unmindful of the great interference and inconvenience which this viaduct will occasion the plaintiff in connection with the use of its property. As I have said above, the facts are clear in the minds of all who participated in the trial. The character of the property is commercial. The property to the east and west is likewise business property. This is a business location. Plaintiff has made large and expensive improvements which can be used for no other purpose than that presently conducted on its premises. The testimony is convincing that the ramps, which are provided for ingress and egress for plaintiff and its patrons, are not as satisfactory as the present situation and do not compensate for the loss of the present grade of Page Avenue. But the plaintiff does have means of ingress and egress, though inconvenient and unsatisfactory. Its business will suffer because of the improvement."

To sustain its position, the appellant does not rely upon any statute, but does rely solely upon Article 2, Section 21, of the Constitution of Missouri, which is as follows:

"That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken for railroad tracks without consent of the owner...