Marvin E. Nieberg Real Estate Co. v. St. Louis County

• Decision Date: 08 January 1973
• Docket Number: No. 2,No. 56548,56548,2
• Parties: MARVIN E. NIEBERG REAL ESTATE COMPANY, a corporation, Appellant, v. ST. LOUIS COUNTY and the Missouri State Highway Commission, Respondents
• Court: Missouri Supreme Court

Page 626

488 S.W.2d 626

MARVIN E. NIEBERG REAL ESTATE COMPANY, a corporation, Appellant, v. ST. LOUIS COUNTY and the Missouri State Highway Commission Respondents.

No. 56548.

Supreme Court of Missouri, Division No. 2.

Jan. 8, 1973.

Joe Bill Carter and Paul Gordon Latt, Clayton, for appellant.

George F. Gunn, Jr., St. Louis County Counselor, Don R. Williams, Assoc. County Counselor, Clayton, for respondent St. Louis County.

Robert L. Hyder, Jefferson City, Thomas H. Pearson, Kirkwood, for respondent State Highway Commission of Missouri.

HOUSER, Commissioner.

Marvin E. Nieberg Real Estate Company, a corporation, brought this action in inverse condemnation against St Louis County and Missouri State Highway Commission, charging in Count I a damaging and in Count II the taking of 3.253 acres for public use without compensation and praying for the appointment of commissioners to assess damages. By stipulation the parties first tried to the court the question whether there was a taking or damaging, agreeing that if plaintiff prevailed on that issue a jury would later hear evidence as to damages. The court ruled against the realty company and for the county and highway commission, finding no taking or damaging of property for public use within the meaning of Article I § 26 of the Constitution of Missouri, 1945, V.A.M.S., and the realty company appealed. We have jurisdiction because this appeal involves a construction of the constitution. Hamer v. State Highway Commission, Mo.Sup., 304 S.W.2d 869, and case cited, l.c. 870.

In 1958 the county and the highway commission entered into a written agreement for the selection of supplementary state highways, encompassing proposed right of way for Route D (Outer Belt) Page Avenue Extension. Proposed Route D included the 3.253 acres in question. It was part of a larger tract of 20.045 acres which in 1960 Ken Realty Company (plaintiff's predecessor in interest) contracted to purchase. During 1960 Mr. Nieberg, President of Ken Realty, intending to develop the 20.045 acre tract for subdivision purposes, applied to the county council to rezone the land. The highway department, acting through its district engineer, opposed the application. The district enginner wrote a letter to the assistant director of the county planning commission and sent him a plat showing the center line of proposed Route D passing through the 20.045 acre tract. Rezoning was opposed on the ground that the amount of right of way to be acquired was not precisely known. The zoning commission denied Ken Realty's application. Thereafter, in 1962 and about the time Ken Realty obtained title to the tract, Mr. Nieberg again applied to the county council to rezone the 20.045 acres from B--1 (one-acre lots) to C--2 (12,000 square-foot lots). Mr. Nieberg conferred with the director of the planning commission, who told Mr. Nieberg that if he wanted the rezoning the 3.253 acres 'would have to be left out'; that it would be 'just a very short time' before the 3.253 acres would be purchased--that the director was 'In touch with the county and state highway' and that it was believed that funds were then available to buy this acreage. Thereafter the district engineer again wrote the planning and zoning commission suggesting that action on the application be deferred 'until exact needs are established,' pointing out that this parcel was located on Route D, Outer Belt, and that on the basis of information then available the highway department anticipated that future right of way would be required from the northernmost part of this acreage. Mr. Nieberg's draftsman who prepared the preliminary and final plats calculated that a maximum of 54.5 lots could be carved out of the 20.045 acres. The public authorities would not entertain a request based upon that number of acres, so the preliminary and final plats of the subdivision, prepared by Mr. Nieberg's draftsman following exchange of letters with the zoning commission with reference to the density development program, described 45 lots, plus required open air space and a strip for walking access to a park area. The planning commission prepared a notice for a public hearing, excluding the 3.253 acres from the application. Mr. Nieberg did not make, consent or object to this change. In all subsequent documentation the legal description omitted the 3.253 acres. Mr. Nieberg attended the hearing. The planning and zoning commission recommended to the council the rezoning of approximately 17 acres of the 20.045 tract, as requested, excluding the 3.253 acres in question. Mr. Nieberg did not protest the exclusion. The council approved the application as amended and enacted an ordinance rezoning the 20.045 acre tract, except for the 3.253 acres. Mr Nieberg did not employ counsel or take any other action to appeal the rezoning order or complain about omission of the 3.253 acres. The 3.253 acres was never rezoned. Neither Mr. Nieberg nor any of the corporations of which he was president ever filed an application to rezone the 3.253 acres. To accomplish subdivision of the approximately 17 acres which was rezoned Mr. Nieberg organized Willowyck Building Corporation and in August, 1963 Ken Realty (by deed executed by Mr. Nieberg as president of Ken Realty) conveyed the approximately 17 acres to Willowyck Building Corporation. Mr. Nieberg was also president of Willowyck Building Corporation. He realized that there would be a problem of access to the 3.253 acres. The original plat submitted to the planning and zoning commission provided for such access but according to Mr. Nieberg 'you go through possibly two or three preliminary plats tot he * * * commission, as a matter of normal procedure, until you reach one that is agreeable and meets all requirements.' The final plat made no provision for an entrance to the 3.253 acres because 'the Commission was so definite' about the highway taking that acreage. Mr. Nieberg conceded that he never filed a written application and never submitted a plan proposing any entrance from Willowyck Drive into the 3.253 acres. In 1965 plaintiff corporation acquired all of the assets of Ken Realty, including the 3.253 acres, which was conveyed to plaintiff corporation by Ken Realty by quitclaim deed executed by Mr. Nieberg as president of the grantor corporation. After filing this suit plaintiff corporation tendered into court a warranty deed to the county conveying the 3.253 acres to the county, to be delivered upon final determination of the damages to be paid in these proceedings.

Appellant asserts that the circuit court erred in holding that no right of way had been acquired by defendants; erred in finding that the principal reason for not rezoning the 3.253 acres was the highway...