Jackson County v. Hall, KCD

• Decision Date: 31 October 1977
• Docket Number: No. KCD,KCD
• Parties: JACKSON COUNTY, Missouri, Appellant, v. Norma Jean HALL, Respondent. 28490.
• Court: Missouri Court of Appeals

Page 791

558 S.W.2d 791

JACKSON COUNTY, Missouri, Appellant, v. Norma Jean HALL, Respondent.

No. KCD 28490.

Missouri Court of Appeals, Kansas City District.

Oct. 31, 1977.

Willard B. Bunch, County Counselor, Tom J. Helms, Sp. County Counselor, Kansas City, for appellant.

Robert L. Langdon, Lexington, for respondent; Bradley, Skelton & Schelp, Lexington, of counsel.

Before SWOFFORD, C. J., DIXON, J., and PRITCHARD, P. J.

PRITCHARD, Presiding Judge.

By an amended petition filed February 13, 1973, Jackson County sought to condemn approximately 85 acres of land owned by respondent for public use for a project known as the "Mouth of the Little Blue Park." The property lies to the southeast of the confluence of the Little Blue River and the Missouri River, northwesterly from Sibley in eastern Jackson County, Missouri.

The principal issue is whether the trial court abused its discretion in refusing to permit Jackson County further to amend its petition on the day of trial, September 29, 1975, to reserve to respondent an easement of ingress and egress 25 feet in width from the termination of Galvin Road on the north and then running along a road on top of an existing levee in a southeasterly direction, "limited to agricultural and farm machinery, farm vehicles and equipment and for no other use" to respondent's remaining 120 acres. The 120 acres was partially landlocked without the levee road for farm machinery use because of the insufficiency of two bridges over the railroad right-of-way on Patton Road which runs north along the southeastern side of the 120 acres.

Counsel for Jackson County first asked for a continuance, which was denied, stating to the court that this was the first time it had come to his attention that respondent was relying upon remainder damages because of the limitation of access to the remaining 120 acres. After the jury was selected, Jackson County offered this amendment:

"Paragraph 12.20 Plaintiff reserves and excepts to defendant, Norma Jean Hall, her heirs, grantees and assigns, an easement of ingress and egress twenty-five feet in width to defendant's remaining property beginning at the termination point of Galvin Road and running along the usual route thereof to the road located on top of the levee as it now exists, thence generally in a southeasterly direction to defendant's remaining land in the northeast quarter of the southwest quarter of Section 27, Township 51, Range 30, provided however, that defendant's use of the above described easement shall be limited to agricultural and farm machinery, farm vehicles and equipment, and for no other use.

"Paragraph 12.21 The aforesaid easement shall terminate if and when the two bridges located over the Atchison, Topeka and Santa Fe Railroad right-of-way on Patton Road are repaired, improved or replaced so as to accommodate wide and heavy loads. * * *."

At the time the amendment was offered, respondent objected upon the grounds that it was "unclear insofar as the legal description and the placing of this road, it's not clear as to where it begins, it's not clear as to where it runs, and it may be somewhat clearer as to where it ends, but I don't think a surveyor could go out there and survey this road. * * * (I)t's inviting a lawsuit somewhere down in the future regarding contingencies upon when these bridges may be able to accept certain types of machinery. It also is vague as to the type of machinery and the width of machinery that may be taken across there. * * * (F)or the reason that this does very little because it doesn't give us the right to maintain this easement, and we accept it in the same condition as Jackson County wants to leave it, which means it could mean no use whatsoever if it happens to be a muddy or a wet year." Further objection was lodged against the timeliness of the proposed amendment, that the jury had been picked, awaiting opening statements, that the case had been prepared by respondent based upon the existing pleadings, which had been on file since 1973.

Jackson County relies upon several cases which say that it is an abuse of discretion for a trial court to refuse an amendment to a petition in condemnation where the amendment seeks to take less or fewer rights from the condemnee. See the leading case of St. Louis K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 192 (banc 1893), where by way of offered stipulation, the railroad would construct and maintain for the use of the landowner, his heirs and assigns, two crossings located as the landowner should select, each 24 feet wide, with planks securely spiked to crossties, spaces to be filled with macadam or gravel to a depth of not less than 6 inches. The court sustained an objection to the offered stipulation, and the case was tried on the theory that the landowner was not entitled to have a crossing or crossings. Held, the court erred in excluding the stipulation because: "(I)f it (the company) sees fit to reserve two open crossings for the defendant's use, we can see no reason why the reservation may not be made, and the damages then assessed on the basis that the defendant retains that interest in the land. The statute very justly and properly places restrictions upon the exercise of the right of eminent domain, but it does not follow, by any correct reasoning, that the condemning company is bound, in all cases, to go to the full extent of the law. * * * The reservation of the easement being made, the damages are assessed in view of the interest thus retained and not condemned. The company pays for what it needs and takes, and the landowner is allowed all the damages which he in fact sustains." 25 S.W. 198 (Brackets added.) The facts of the Clark case, the offering of an easement to reduce the damage occasioned by the condemnation, are analogous to the facts here. See also State ex rel. Highway Commission v. Wright, 312 S.W.2d 70, 73-74(3) (Mo.1958); Union Electric Co. v. Levin, 304 S.W.2d 478, 483 (Mo.App.1957); State ex rel. Morton v. Allison, 357...