Sassman v. State Highway Commission
Citation | 45 S.W.2d 1093 |
Decision Date | 11 January 1932 |
Docket Number | No. 17168.,17168. |
Parties | SASSMAN v. STATE HIGHWAY COMMISSION. |
Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Cole County; H. J. Westhues, Judge.
"Not to be officially published."
Action by Edward Sassman against the State Highway Commission of Missouri. From a judgment overruling plaintiff's motion to set aside an involuntary nonsuit, plaintiff appeals.
Reversed and remanded for a new trial.
Leslie B. Hutchison, of Vienna, and James Booth, of Pacific, for appellant.
John W. Mather and Ralph M. Eubanks, both of Jefferson City, for respondent.
Plaintiff brought this action to recover damages for the taking and appropriation of a strip of his land for highway purposes by the state highway commission.
There is no controversy over the plaintiff's ownership, nor over the fact that defendant took and appropriated the land. Furthermore, it is beyond question that the same was taken without condemnation unless the proceedings hereinafter referred to can be held to apply thereto. Likewise, it is certain that plaintiff has not received payment for said land; nor has compensation been provided for, unless the $1,100, allowed by the commissioners in the condemnation proceedings hereinafter referred to, must be taken as the amount of compensation for the land taken and damages to the rest of plaintiff's tract. In this action now here on this appeal, the evidence in plaintiff's behalf tends to show that plaintiff's land, by reason of the taking and appropriation by defendant, has been damaged and diminished in value all the way from $2,500 to $4,000.
The defense is that the condemnation proceedings hereinafter mentioned applied to the plaintiff's land and to the strip appropriated, and that plaintiff's compensation and damages are only to be found in the said sum of $1,100 allowed in that proceeding, which sum the plaintiff refused to accept.
Plaintiff's contention is that the condemnation proceedings instituted by the highway commission could not be held to apply to his land because the land taken was not described or included in the petition for condemnation. The trial court held that they could be deemed to be, and were, had in reference to the land taken, and on this theory was in the act of giving the jury a peremptory instruction to find for defendant when plaintiff took an involuntary nonsuit with leave to move to set the same aside. This being overruled, plaintiff duly appealed.
The condemnation petition contained the following definite, specific, and precise description of the strip of land as belonging to plaintiff and sought to be condemned, to wit:
The description of the land sought to be appropriated strictly followed the above in the order appointing commissioners, in the report of said commissioners, and throughout the remainder of the condemnation proceedings. There was, however, no judgment confirming the report of the commissioners.
The above description covers a portion of plaintiff's entire premises, but the land described therein is off the southeast corner of plaintiff's tract, and the description does not embrace any portion of the land actually taken. The strip actually appropriated is along the entire northwest side of plaintiff's tract, and is a far larger, or rather longer, strip than the one described. It is also perhaps proper to state that the taking of the strip actually appropriated does far more damage to the rest of plaintiff's tract than the taking of the strip described would have caused. The petition in the case at bar alleged that the strip actually taken included, in its boundaries, the garage, woodshed, and other buildings, and the locating of the highway destroyed a lot of fruit trees, shrubbery, and garden, and closed up the drains to the septic tank and cellar, causing noisome odors to be thrown off.
Plaintiff did not appear to the condemnation proceedings, but he was at the county seat on the day they were to come up for hearing, and at this time he told the members and attaches of the highway commission, and perhaps also the trial judge, that the strip they had staked out on his land was different from the land described in the petition and was not contained therein. The officers informed him, in substance and effect, that they (the highway officials) knew what they were doing and were taking the land they wanted. It is beyond question that afterward plaintiff saw the commissioners going over the land actually taken, but he did not go to them or make any objection whatever, which is perfectly natural in view of the reception with which his former objection had been met.
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