Kansas City v. Berkshire Lumber Co.
| Citation | 393 S.W.2d 470 |
| Decision Date | 12 July 1965 |
| Docket Number | No. 1,No. 50996,50996,1 |
| Parties | KANSAS CITY, Missouri, a Municipal Corporation, Respondent, v. BERKSHIRE LUMBER COMPANY, a Corporation, Appellant |
| Court | United States State Supreme Court of Missouri |
Herbert C. Hoffman, City Counselor, Ned B. Bahr, Asst. City Counselor, for respondent.
Henry G. Eager, Kansas City, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for appellant.
WELBORN, Commissioner.
This is a condemnation proceeding by the City of Kansas City under Article VI of its charter in connection with the construction of a viaduct in Truman Road. Berkshire Lumber Company filed its claim for $60,000 damages. In a trial before a six-man freeholders' jury, Berkshire's witnesses placed its damages at between $34,000 and $55,000. Berkshire asked the freeholders' jury for 'at least $40,000' but the award was for $11,300. Because of the amount in dispute, we have jurisdiction of this appeal by Berkshire.
On October 6, 1961, Kansas City enacted enabling Ordinance No. 26634, authorizing the construction of a reinforced concrete and steel viaduct in Truman Road, 2,809.75 feet in length, crossing three railroad line tracks and the Big Blue River. The viaduct was to be 61.25 feet in width, containing two roadways each 26 feet wide separated by a medial strip four feet in width. The ordinance provided for the condemnation of private property required for the project. It also provided for the condemnation of easements to support embankments or fill when necessary to bring the highway to the required grade.
Section 8 of the ordinance read as follows:
* * *'
Berkshire was the owner of a tract of 106,593 square feet fronting on the north side of Truman Road for 371 feet and averaging 284.57 feet in depth. The west end of the viaduct was 528 feet west of Berkshire's west property line. Required to be taken for the project from Berkshire and the subject of this litigation was a tract of 4,008 square feet. The tract taken fronted on the north side of Truman Road for 220.88 feet and varied in depth from 10.43 to 19 feet. An additional 2,500 square ft. easement for embankment fill was also taken from Berkshire. The easement area lay immediately to the north of the 4,008 square ft. tract taken from Berkshire.
Berkshire had acquired the almost 2 1/2-acre tract in 1910. Berkshire operated a 'cash and carry' lumber business at the location until 1943, when the tract was leased to Jones Lumber Company for a similar operation. Jones' annual rental was $7,800, having been increased from $4,800 in 1954. There were four buildings on the property, all designed for use in connection with a lumber business operation. The main building, a brick and frame part one- and two-story structure was in the vicinity of the southeast corner of the Berkshire tract and fronted 150 feet on Truman Road. This building, with signs 'Jones Lumber Company' prominently displayed thereon, was, prior to the construction of the viaduct, vissible to approaching Truman Road traffic for about three blocks in both directions.
As planned and constructed, the roadway of the viaduct is from 12 to 32 feet above and south of the Berkshire tract. As a part of the project, ramps were constructed on either side of both the east and west approaches to the viaduct. These ramps, constructed at approximately the same grade as old Truman Road, permit vehicles to travel beneath the viaduct on the old roadway which was widened approximately 9 feet along the east portion of the Berkshire tract. The northwest ramp, 22 feet in width, adjoins the Berkshire tract on its south border for some 220 feet. The viaduct structure rests on T-shaped concrete piers placed at varying distances along the center of the old roadway. Five such piers, 9 feet wide and 3 1/2 feet thick, are now located in the old roadway in front of the Berkshire tract. A traffic control island was also constructed in the center of the roadway between the second and fourth pier in front of the Berkshire tract. The island, some 150 feet in length, is 56 feet wide at its west end and approximately 20 feet wide at its east end. The island is in front of one of the three truck entrances to the main building on the tract and makes the westbound traffic lane at that point approximately 22 feet in width.
On the issue of damages, the condemnee's expert witnesses testified to damages to Berkshire of a minimum of $34,000 and a maximum of $55,000. Condemnee's witnesses emphasized the reduction in value, resulting from the presence of the viaduct, of the property remaining after the taking. One of the condemnee's witnesses expressed the opinion that the value of the strip taken was approximately $4,850. However, his estimate of total damage amounted to $48,000, based upon before and after valuation of the entire tract of $147,000 and $99,000. This witness estimated a 'utility loss' of $22,050. According to him, this item was made up of a number of factors, including change in visibility of the property resulting from the construction of the viaduct approach and access. According to the witness, the change in the traffic would result in a loss of 90% of the transient business because of poor visibility and accessibility and reduced grade. Other factors considered were availability, advertising value, traffic trend and restriction of light, sight and air. He also estimated a rental loss of $20,905. This was based upon his estimate of a 28.4% decrease in sales on the loss of 'cash and carry' business that would justify rental reduction which capitalized at 10% would amount to approximately $20,000. There was an additional rental loss of $1,500 from advertising signs. Another witness estimated the before-taking value at $149,000 and the after-taking value at $103,760. He placed the value of the land taken at $5,010 and found a 27% loss of value to the remaining property from various factors, including loss of view--'* * * traffic on the viaduct will not see this building'--loss of advertising value and loss of light and air. Another witness estimated damages at $55,000 based on $5,000 valuation for the land taken and $50,000 loss of rental value.
The city's witnesses placed the damages at $2,750 and $3,000. The witness stating the former figure gave the property a beforetaking value of $87,750 and an after-taking value of $85,000. The city's witnesses allowed nothing for change of access or loss of traffic flow. Both testified that they took into consideration the loss of light, sight and air, but found no damage from such factors.
The trial court, at the city's request, gave three damage withdrawal instructions which are here under attack. By Instruction No. 4, no award was to be made 'for loss of access or deprivation for loss of access to the viaduct structure.' By Instruction No. 6, the jury was instructed not to take into consideration 'any evidence of alleged damages by any owner or claimant herein which may result in a loss of view or visibility of their respective private property from members of the traveling public passing along, on and adjacent to said respective properties on the roadway of the viaduct improvement.' Instruction No. 7 told the jury that it should not make an award or take into consideration 'any evidence of alleged damages which may result by reason of a change in the volume of traffic traveling along the existing grade of Truman Road.' Instruction No. 9 was given, reading as follows: 'The Court instructs you that in arriving at the difference between the fair market value of the remaining property of condemnees immediately after the taking and the fair market value of the whole property immediately before the taking, you may consider any evidence of damages that will result from deprivation of access to Truman Road by reason of said improvement.'
According to the appellant, the issue presented is whether or not damages may 'be awarded in condemnation proceedings for a material decrease of direct access to and public view of an abutting retail business property caused by the condemnor's erection of an elevated viaduct.'
In our opinion, the answer to the question presented in this case is determined by the principles recently applied by the Court En Banc in State ex rel. State Highway Commission v. Meier, Mo., 388 S.W.2d 855, and State ex rel. State Highway Commission v. Brockfeld, Mo., 388 S.W.2d 862. The latter case reversed the decision (which the appellant here relied upon) of the St. Louis Court of Appeals, 378 S.W.2d 254, in the same case.
In Meier, the court stated (388 S.W.2d l. c. 857):
'An abutting owner's property...
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