St. Louis v. Sheahan

• Decision Date: 25 March 1931
• Docket Number: No. 28892.,28892.
• Citation: 36 S.W.2d 951
• Parties: CITY OF ST. LOUIS, Appellant, v. EDWIN L. SHEAHAN ET AL.
• Court: Missouri Supreme Court

36 S.W.2d 951

CITY OF ST. LOUIS, Appellant, v. EDWIN L. SHEAHAN ET AL.

No. 28892.

Supreme Court of Missouri, Division 2.

March 25, 1931.

Appeal from St. Louis County Circuit Court. — Hon. G.A. Wurdeman, Judge.

AFFIRMED.

Julius T. Muench and Richard S. Bull for appellant.

(1) The award of $14,250 damages for the taking of an underground pipe-line right-of-way through less than two acres of idle, unimproved and unproductive country land, where there is no substantial showing of present and material damage to the balance of a thirty-acre tract, is clearly wrong, and is so grossly excessive as to indicate the influence of passion or prejudice, and such award should be set aside on that ground alone. Jones v. Ry. Co., 287 Mo. 78; Kennedy v. Transit Co., 103 Mo. App. 1; 20 C.J. 1119, sec. 488; 2 Nichols, Eminent Domain (2 Ed.) 1191. (2) It is prejudicial error, in a jury trial in condemnation, to admit evidence which advises the jury of the amount awarded by the commissioners, and it is as improper for this to be done indirectly as directly. School Dist. v. Phoenix, 297 Mo. 332; Kansas City Ry. Co. v. Second St. Imp. Co., 256 Mo. 386; Railway v. Pfau, 212 Mo. 398; Railway v. Roberts, 187 Mo. 309; 2 Nichols, Eminent Domain (2 Ed.), sec. 431, pp. 1136-1138. (3) It is error to permit a witness to state his opinion of the value of neighboring land. 2 Nichols, Eminent Domain (2 Ed.), sec. 453, p. 1189; Beale v. Boston, 166 Mass. 53, 43 N.E. 1031; Haven v. Essex County Commrs., 155 Mass. 467, 29 N.E. 1085; Kansas City Ry. v. Vickroy (Kan.), 26 Pac. 699. (4) Evidence of sales of other land, not shown to be of a similar nature or located nearby, and remote in time, should not be admitted. School District v. Phoenix, 297 Mo. 332; Hewitt v. Price, 204 Mo. 31; St. Louis, etc., Ry. Co. v. MacAdaras, 257 Mo. 448. (5) The introduction in evidence of part of an abandoned pleading, which is incompetent and which can serve no purpose but to confuse and prejudice the jury, even though it be claimed to be an admission against interest, is reversible error. The second amended petition, and not the original petition, determined the issues in this case. Brierre v. Cereal Co., 102 Mo. App. 622; 38 Cyc. 1482-1483; 22 C.J. 299, sec. 331.

Holland, Lashly & Donnell and Ralph C. Lashly for respondents.

(1) The verdict of $14,250 was supported by the weight of the evidence, and the evidence would have justified a verdict even substantially larger than the one that was rendered. (a) The measure of damages in condemnation, when a part only of the land is taken, is the difference between the fair market value of the entire tract before and after the appropriation. Prairie Pipe Line Co. v. Shipp, 267 S.W. 647, 305 Mo. 663; Mo. Constitution, Art. II, Sec. 21. (b) The judgment of a trial court in a condemnation proceeding based upon a verdict of a jury, which was supported by testimony, will not be disturbed on appeal. 20 C.J. 1116, sec. 448; Gary v. Averill, 12 S.W. (2d) 747; Prairie Pipe Line Co. v. Shipp, 267 S.W. 647, 305 Mo. 663; Shelby County Railroad v. Dimmitt, 235 Mo. 489; City Water Co. v. Hunter, 6 S.W. (2d) 567; In re Condemnation of Property for Park, 263 S.W. 98; Rich Hill Drainage Dist. v. McCormick, 260 S.W. 79; Springfield v. Owen, 262 Mo. 92. (2) The award of the commissioners was not brought before the jury by respondents, in any form. The commissioners are competent witnesses at the trial, and though the jury in this case were never informed that the commissioners were testifying, it is nevertheless not error if the jury are told that the commissioners are testifying before them. Cape Girardeau v. Hunze, 284 S.W. 471, 314 Mo. 438, 47 A.L.R. 25; St. Louis v. Abeln, 170 Mo. 326, 70 S.W. 710. (3) There was nothing prejudicial in the admission of any testimony pertaining to the value of neighboring land. Slotze v. Manitowoc Terminal Co., 75 N.W. 987, 100 Wis. 208; Morrison v. Watson, 101 N.C. 332; R.S. 1919, sec. 1513. (4) The testimony of witness Baumhoff as to sales in the vicinity was competent as showing his qualifications, and was not prejudicial to appellant. R.S. 1919, sec. 1513. (5) The reading of a portion of the original petition to the jury was proper, because same was admissible as an admission against interest. Andrus v. Business Men's Acc. Ass'n, 223 S.W. 70, 283 Mo. 442; Burton v. Phillips, 7 S.W. (2d) 714; Parsons v. Harvey, 221 S.W. 22, 281 Mo. 413; Merriwether v. Publishers: George Knapp & Co., 224 Mo. 617.

WHITE, P.J.

This proceeding, begun in May, 1925, in the St. Louis Circuit Court, was to condemn a right of way one hundred feet wide for water-pipe line through a tract of land in St. Louis County belonging to respondents, Dr. Edwin L. Sheahan and his wife Deborah M. Sheahan.

They owned a tract consisting of thirty acres and the right-of-way condemned goes through this tract a distance of a thousand feet. Commissioners appointed by the court assessed defendant's damages at $17,255.80. The city filed exceptions. The court ordered a trial by jury, which rendered a verdict for the defendants for $14,250. From the judgment the city appealed in due form.

I. The first assignment of error made by appellant here is that the award of $14,250 damage was so excessive as to indicate the influence of passion or prejudice on the part Excessive Damages: of the jury. Passion and Prejudice.

The defendants introduced a number of witnesses who qualified as experts in valuing real estate.

Dr. Sheahan testified that his damage was twenty-nine thousand dollars. He estimated the thirty acres of land as worth thirty-five hundred dollars an acre. The amount taken in the hundred-foot strip was 1.93 acres. It cut off 1.86 acres from the main body of the tract, making that piece practically worthless. The damage to the entire tract was because the easement for the pipe line interfered with his sewerage and drainage and made it difficult to lay the tract off in lots in a satisfactory manner.

Mrs. Mehl, a real estate agent, testified about sales she had made in the vicinity, apparently on land in like situation: one tract of two acres for $7,000; one two-acre tract for $7,500; a one-acre tract for $11,000, and a three-acre tract for $10,000, and a three-and-a-half-acre tract for $12,000.

Mrs. Heinsohn testified that she sold a six-acre tract about two blocks from the Price Road upon which the Sheahan land fronts for three thousand dollars an acre.

Witness Sertier testified that he sold a four-acre tract about a quarter of a mile north of the Sheahan property for four thousand dollars an acre.

Emil Dosenbach testified that he had made careful examination of the property and estimated Sheahan's damages at $17,300.

Mr. Jacobsmeyer testified to a similar examination and estimated the damage at $17,369.

Mr. Morgan testified to such examination and placed the damage at $17,396.

Mr. Keith testified that the Sheahan tract in November 1925, was worth $2500 an acre, and Sheahan's damage he estimated at eighteen thousand dollars.

Frederick Pitzman, civil engineer, testified that the strip of Sheahan's property taken off was rendered useless and that another triangular piece would be nearly useless from a subdivision standpoint, and that the remainder of the land was damaged from a sewer standpoint because to drain it would necessitate going under the right-of-way, and an engineer in doing so would encounter a very serious problem.

Mr. Remeley testified that without figuring improvements the Sheahan property was worth about fifty thousand dollars, and averaged the property at three thousand dollars an acre.

The city introduced evidence tending to show the pipe line did not have the damaging effect testified to by defendant's witnesses.

Mr. Wood testified that the Sheahan tract was worth about one thousand dollars an acre, and that the damage was about three thousand dollars caused by the right-of-way.

Mr. Shields testified that the tract was worth $36,000, and estimated the damage caused by the easement at $2,724.44.

Mr. Elbring testified for the city that the value of the Sheahan tract in November, 1925, was $1350 an acre. He estimated that the damage caused by the easement was two thousand dollars, and the value of the strip taken off by the right-of-way one thousand dollars.

It was shown on examination of Dr. Sheahan that he gave $18,500 for the thirty acres five years before, though he testified that values had greatly advanced since his purchase. It was further shown by the city that other tracts on the road upon which the tract fronted were bought at an average of sixteen hundred dollars an acre, and one tract for a thousand dollars an acre.

We are unable to see from this evidence that the award of the jury indicates passion and prejudice. The trial court passed upon the weight of evidence, and we are not at liberty to disturb the court's finding in that respect unless it is shown that the trial court's discretion in that respect was abused, which does not appear.

A point is made that the alleged error is emphasized because three of the defendants' witnesses, Dosenbach, Jacobsmeyer and Morgan, who substantially agreed on the amount of the damages, were the commissioners appointed by the court in the first place to assess the damages. Nothing in the record tends to show that those witnesses were biased in favor of the city or had temptation to render a large judgment in favor of the property owners. They probably gave the matter a more thorough investigation than the other witnesses and were therefore better competent to estimate the damages.

II. The appellant does not claim that those commissioners were not competent witnesses, but does claim that the jury should not have been apprised that they were the commissioners who assessed the damages originally, and complains that the Commissioners court permitted tactics employed by defendants' as Witnesses. counsel in indirectly getting before the jury the fact that...