St. Louis Housing Authority v. Barnes

• Decision Date: 13 January 1964
• Docket Number: No. 223-A,No. 49939,No. 1,223-A,49939,1
• Citation: 375 S.W.2d 144
• Parties: ST. LOUIS HOUSING AUTHORITY, (Plaintiff) Respondent, v. Aaron BARNES et al. (Parcellbert Fein and Edna Oxenhandler, Administrators), (Defendants) Appellants
• Court: Missouri Supreme Court

Page 144

375 S.W.2d 144

ST. LOUIS HOUSING AUTHORITY, (Plaintiff) Respondent, v. Aaron BARNES et al. (Parcel No. 223-Albert Fein and Edna Oxenhandler, Administrators), (Defendants) Appellants.

No. 49939.

Supreme Court of Missouri, Division No. 1.

Jan. 13, 1964.

Rehearing Denied Feb. 10, 1964.

Newmark & Baris, Irl B. Baris, St. Louis, for appellants.

Irvin Dagen, Edward C. Cody, St. Louis, for respondent.

WELBORN, Commissioner.

The St. Louis Housing Authority, a municipal corporation organized and operated under Sections 99.010-99.230, RSMo 1959, V.A.M.S., filed suit in the St. Louis Circuit Court on October 31, 1960 to condemn (Section 99.120, RSMo 1959, V.A.M.S.) property in the City of St. Louis upon which it proposed to construct a low-rent housing project. Among the tracts sought to be condemned was Parcel 223, a lot known as 3402 Bell Avenue, with improvements thereon consisting of a brick dwelling. Condemnation was ordered on January 13, 1961. On July 6, 1961, the commissioners returned their award for Parcel 223 in the amount of $4,500. On July 14, 1961, the condemnor deposited the amount of the award into the registry of the court and filed exceptions to the award for Parcel 223.

The exceptions were heard by a jury on May 2, 1962. At the trial the appellants here, as administrators c. t. a. of the estate of Isadore Fein, sought to uphold the commissioners' award. Fein was the record owner of the property on July 14, 1961. He died thereafter. The appellants' expert witness, Mr. Sam Michelson, testified that the value of the property as of July 14, 1961 was $4,165. The witness had not personally examined the property since October or November, 1960, near the time of the filing of the petition in condemnation. An offer of proof to show by the witness that the value of the property at that time was $4,800 was rejected by the court for the reason that value was required to be shown as of July 14, 1961, the date of the payment of the award into court. The witness' testimony as to the value of the property on the latter date was based upon the testimony of Albert Fein that, excet for the removal of the fire escape from the rear of the house, the condition of the property was essentially unchanged from November, 1960 to July, 1961. An offer of proof on behalf of the appellants was made that the witness Michelson would testify that it is his opinion 'based upon his experience in condemnation matters that once an area has been marked for condemnation, property deteriorates because of the nature of the neighborhood and because of the fact vandalism takes place in those neighborhoods and the value of the property is greater at the time of the initial announcement and the commencement of proceeding for condemnation than that value at the time of the payment of the award in court.' Objection to the offer of proof was sustained. An offer of proof was also made and rejected to show by the witness Fein that he had been unable to rent the house at 3402 Bell because of the commencement by respondent of plans for the housing project and the condemnation action.

Respondent's expert witness testified that the value of the property as of July 14, 1961 was $1,600. The jury found the fair market value of the property as of that date to be $2,200. After their motion for new trial had been overruled, appellants appealed to this court. In their jurisdictional statement, appellants assert that 'in their Motion for New Trial, (they) have charged that the procedure in the trial court with respect to the method and date of determining just compensation to be awarded for the condemned property violated Section 26 of Article I of the Constitution of the State of Missouri and the Fourteenth Amendment to the Constitution of the United States.' The only possible constitutional question raised by the points relied upon in appellants' brief relates to alleged error on the part of the trial court in 'limiting the evidence and instructing as to valuation of the property as of July 14, 1961, the date on which the plaintiff paid the amount of the commissioners' award into court.' The appellants assert that they 'should have been permitted to introduce evidence as to the depreciative effect of the condemnation proceedings on the value of the property, and the court should have instructed the jury to consider this factor in determining just compensation under the Constitution of Missouri.' In neither their statement of this point nor in the authorities cited in support thereof nor in their argument, have appellants relied upon the 14th Amendment to the Constitution of the United States, as mentioned in their jurisdictional statement. Therefore, objection upon the basis of that constitutional provision is not preserved (Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336, 339, 172 A.L.R. 344). The constitutional question arises solely under the Constitution of Missouri. Inasmuch as the precise point raised here has not been decided by this court, we do have jurisdiction of the appeal. We conclude, however, that the objection raised is without merit.

In City of St. Louis v. International Harvester Company, Mo.Sup., 350 S.W.2d 782, decided November 13, 1961, the court en banc pointed out that, under Section 26 of Article I of the Constitution of Missouri 1945, just compensation for the taking of private property is the fair market value of the property taken at the time of taking. The court held that he time of taking is the date upon which the amount of the commissioners' award is paid into court because that is the time at which the condemnor obtains the rights of ownership of the property. See also City of St. Louis v. Vasquez, Mo.Sup., 341, S.W.2d 839. The International Harvester and Vasquez cases dispose of appellants' constitutional objection that their damages should have been assessed as of the date of the condemnation proceeding.

As for the offer of proof to show deterioration of the value of the property as the result of the announcement of the proposed housing project and the institution of the condemnation action, the appellants' theory is set out in their proffered instruction which the court rejected and which read as follows:

'The Court instructs the jury that you are to assess damages in favor of the defendants as of the time of the taking or appropriation by the plaintiff St. Louis Housing Authority, and you may also take into consideration any damages caused to defendant's property as a result of the institution of the condemnation proceedings, either by the actual filing of the condemnation petition or by the announcement of plans for condemnation and the effect of such announcement on the value of such property if you find that such announcement, if any, caused the property to change in value.'

The Supreme Court En Banc, in the case of State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 92 A.L.R. 373, held that damages alleged to have been suffered by a property owner as the result of pendency of condemnation proceedings could not be recovered as an element of damage for the taking in condemnation. The court stated (63 S.W.2d 817):

'We do not undertake to decide if the realty company is entitled to any damages on account of the pendency or delay of the condemnation proceeding itself, and if there is any damage on account of such proceedings, it is of a personal character, as distinguished from any damage to the property itself, and is not an element to be considered by the commissioners in assessing benefits and damages in this proceeding.'

The principle of that case is determinative here. In this case, damages for the taking are in accordance with City of St. Louis v. International Harvester Company, supra, to be assessed as of the date of the taking, July 14, 1961, the date of payment of the commissioners' award. If the appellants suffered damages for which the respondent is liable by reason of the condemnation action, such damages are not part of the damages for the taking and, under the Beck decision, are not an item of just compensation within the meaning of Section 26 of Article I of the Constitution of Missouri, 1945. See also Chicago Housing Authority v. Lamar, et al,. 21 Ill.2d 362, 172 N.E.2d 790; A. Gettelman Brewing Co. v. City of Milwaukee, 245 Wis. 9, 13 N.W.2d 541.

Appellant allege error...