Kansas City v. Cone

• Decision Date: 07 October 1968
• Docket Number: No. 24734,24734
• Citation: 433 S.W.2d 88
• Parties: KANSAS CITY, Missouri, Appellant, v. Carl R. CONE et ux., Respondents.
• Court: Missouri Court of Appeals

Page 88

433 S.W.2d 88

KANSAS CITY, Missouri, Appellant, v. Carl R. CONE et ux., Respondents.

No. 24734.

Kansas City Court of Appeals, Missouri.

Oct. 7, 1968.

Herbert C. Hoffman, City Counselor, Ned B. Bahr, Associate City Counselor, Kansas City, for appellant.

Wm. Harrison Norton, Wilbur L. Pollard, Williams, Norton & Pollard, North Kansas City, for respondents.

CROSS, Judge.

This is a proceeding in condemnation instituted by appellant, Kansas City, Missouri, under authority of Article VI of its constitutional charter, ¹ whereby it acquired permanent sewer rights-of-way and temporary construction easements in and upon lands belonging to various landowners, including respondent condemnees Carl R. Cone and Lucille G. Cone, his wife, to be used in connection with the location, construction and maintenance of a public sewer included in the city's pollution control project designated 'Line Creek Interceptor Sewer.'

In accordance with procedure prescribed by Section 131, Article VI, of the city's charter, the cause was initiated in the Circuit Court of Clay County by the filing of a certified copy of a city ordinance (Committee Substitute for Ordinance 32509) 'condemning and taking' lands described therein belonging to the various condemnees, for the stated sewer purposes, and providing for 'the payment of just compensation therefor.' Thereupon, on application of the city and in conformity with charter provisions, the circuit court entered an order directed to all interested persons giving public notice of the pendency and nature of the proceeding, fixing a day and place for empaneling a jury to ascertain the compensation to be paid for the property taken, and apprising the landowners of the time within which claims for compensation must be filed. Legal publication of the order was duly effected at the court's direction. ²

On the day fixed by the order aforesaid, and in accordance with charter provisions the court empaneled a jury of 'six disinterested freeholders.' Thereupon the hearing was commenced, evidence was heard, and the jury, as authorized by the charter and directed by the court, personally viewed the various tracts involved in the proceeding. At the conclusion of the hearing the court instructed the jury in conformity with specific rules for fixing compensation set out in the charter. The verdict of the jury included an award of damages in favor of respondents in the amount of $16,980.00. The city directed an appeal to the Supreme Court, which determined it had no jurisdiction and transferred the cause to this court, on the ground that the amount in controversy was the difference between the amount claimed and the amount awarded by the jury, to-wit: the sum of $5,650.00.

An extended fact statement is not necessary for discussion of the appeal complaints presented. The following we deem sufficient. Respondents own approximately 12 acres of land in Clay County lying within the boundaries of Kansas City. This property is zoned for 'industrial use' and was used at the time of the trial as an auto salvage yard, containing an inventory of between 900 and 1000 cars and an extensive inventory of salvaged automotive merchandise. The permanent sewer right-of-way imposed thereon was specified at 15 feet in width traversing the premises in a north and south direction for a distance of 1500 feet. The temporary construction easement was to be situated on both sides of the permanent easement to a width of an additional 75 feet on the west side and 60 feet on the east side. The improvement to be constructed was a 'public sewer' to be paid for out of the general fund of the city, not by the assessment of benefits upon the real estate, and no special benefit district was involved. Items of damages shown by the testimony of Mrs. Cone, additional to depreciation in market value of the land itself, include the cost of removing 320 automobiles to other premises at a cost of.$7.00 per vehicle 'towed' and $10.00 for each vehicle 'dollied'; storage of those vehicles during the time of construction operation at a cost of 50 cents each per day; cost of removing the vehicles back to respondents' property at the unit price above stated; necessary demolition or removal of a 16 20 building used for dismantling tires, a separate lavatory, an 8 12 building for storing pipes, a permanently set house trailer used to store innertubes and a large bus used in cleaning copper; removal of various catalogued stocks of springs, bumpers, tires, wheels, front axle assemblies with wheels, grills, truck tires, tubes and wheels, and complete rear end assemblies. Mrs. Cone further testified that respondents would have to suspend business while the construction work was being done because the salvage yard would be inaccessible for customer parking. Business would also be disturbed for at least 30 days prior to the beginning of construction work because it would take that long to move the 320 cars 'and all of the other things that we do have to move. And then, it will take us at least thirty days to get this all back after they have cleared out.' Based on a 'before and after' measure, Mrs. Cone testified that respondents were damaged to the extent of $22,630.00. As bearing on the issue of whether any special benefits to respondents' property resulted from the construction of the sewer projects, Mrs. Cone testified: 'I don't feel, sir, that this sewer will benefit our property--in view of the fact that it is not a piece of property for development. The value of this property is for a salvage yard; and we certainly don't need a sewer to operate a salvage yard. Our water we do not get from Kansas City. We have spent an awfully lot of money to purchase our water through Parkville. And in view of the fact that we are on the Platte County line, our water meters are setting in Kansas City, however, we've had to pay to run those lines down to our property. And we have no water whatsoever from Kansas City; and I can't see where that Kansas City feels they're doing us so much good by giving us a sewer line, when we have no Kansas City water to run through it.'

No evidence on the issue of special benefits was adduced by appellant at the hearing in the circuit court. However, appellant was relieved of its burden of proof in that respect by the jury's personal view of the condemned property. In condemnation proceedings under the city charter, it is considered that the personal view of the property by the six member freeholders' jury provided for by Sec. 144, Art. VI of the charter constitutes a species of evidence sufficient to support their conclusions on all questions involved in the determination of 'just compensation', without the aid of any evidence aliunde. It is intended that such a jury be composed of persons expert in the appraisal of property values by reason of their knowledge and experience in that field. In a sense, the freeholders' jury possesses and exercises the functions of 'commissioners' as well as those of a common law jury. Thomson v. Kansas City, Mo.App., 379 S.W.2d 194. In Kansas City v. Jones Store Co., 325 Mo. 226, 28 S.W.2d 1008, the court said: 'A jury of freeholders is not limited to the evidence produced, as is a common-law jury. Such a jury, under section 144, Art. VI of the Charter of Kansas City, may examine personally each piece of property described in the map or plat filed in the case, all property claimed to be damaged, and the city engineer, the director of public works, or the superintendent of parks, or any assistant of any of them, may accompany such jury for the purpose of pointing out the property condemned. Thus the jury can reach a conclusion with or without the assistance of any evidence produced before them, having the benefit of expert assistance in the examination of the property. The result reached is conclusive unless the court is satisfied that they have erred in the principle upon which they have made their appraisal.'

The case was submitted under a verdict directing instruction (No. 1) drafted by appellant in accordance with 'Rules for fixing compensation' specified in Sec. 149, Article VI of the charter and given by the court at appellant's request. In the language of those rules the instruction delineated the nature and scope of the appropriation, told the jury that it was their duty to determine and award respondents as their compensation the actual amount of damages to their property, and further informed the jury that before rendering their verdict they could examine the property personally and that in assessing just compensation they might use their own knowledge and judgment in connection with all the evidence. Neither the instruction nor Section 149 makes any reference to special benefits. ³

The first of two points urged by appellant is a charge that the trial court erred in refusing to admit respondents' Exhibit A 'because objection thereto was made by another party condemnee and not by appellant.' The trial incident occurred during the examination of Donald R. Boyd, an employee of the city in the capacity of Assistant Director of the Pollution Control Department. At the request of respondents' counsel, Mr. Boyd produced a document in his possession and identified it as 'Specifications for the Construction of Sewage Improvements' pertaining to the contract for the construction involved. Respondents' counsel offered the document in evidence, with particular reference to provisions defining the city's duty to return the surface of condemnees' lands to the same topography that existed prior to construction. Objection to the offer was made by counsel for other condemnees whose lands were not at that time the subject of testimony. After counsel for respondents had argued to the court in favor of admitting the exhibit and objecting counsel had argued thereagainst, the court specifically inquired of appellants' counsel, 'What do you have to say about that?'. Appellants' counsel committed...