State ex rel. and to Use of Piepmeier v. Camren

• Decision Date: 15 September 1931
• Citation: 41 S.W.2d 902,226 Mo.App. 100
• Parties: STATE OF MISSOURI AT THE RELATION AND TO THE USE OF B. H. PIEPMEIER, STATE HIGHWAY ENGINEER OF THE STATE OF MISSOURI, APPELLANT v. CORA M. CAMREN AND ERNEST CAMREN, RESPONDENTS
• Court: Missouri Court of Appeals

41 S.W.2d 902

226 Mo.App. 100

STATE OF MISSOURI AT THE RELATION AND TO THE USE OF B. H. PIEPMEIER, STATE HIGHWAY ENGINEER OF THE STATE OF MISSOURI, APPELLANT v. CORA M. CAMREN AND ERNEST CAMREN, RESPONDENTS

Court of Appeals of Missouri, St. Louis

September 15, 1931

Appeal from the Cape Girardeau Court of Common Pleas.--Hon. Oscar A Knehans, Judge.

Reversed and remanded.

John W Mather and Jean Paul Bradshaw for appellant.

(1) The court erred in refusing to give Instruction A offered by the appellant. Mo. A. & G. R. Co. v. Harris et al., 181 Mo. 34; Rives v. City of Columbia, 80 Mo.App. 173; State ex rel. State Highway Commission v. Jones, 15 S.W.2d 338; State ex rel. State Highway Commission v Duncan (Case No. 27220, not yet officially reported); 2 Lewis on Eminent Domain (3 Ed.), sec. 687. (2) The trial court erred in giving Instruction No. 2 at the request of the respondents. State ex rel. State Highway Commission v. Jones, 15 S.W.2d 338; St. Louis, Oak Hill & Carondelet Railroad Co. v. Fowler et al., 142 Mo. 670; Rives v. City of Columbia, 80 Mo.App. 173. (3) The court erred in giving Instruction No. 3 offered by the respondents for the reason that: (a) Said instruction told the jury that the market value of the land remaining after the highway had been constructed was its actual value "independent of the location of the road." (b) Said instruction precludes the consideration of special benefits by not allowing the jury to consider the location of the road in determining whether said road enhanced the value of the remainder of the farm. (c) Said instruction, considered as a whole, is ambiguous, and tends to confuse the question of special benefits to such an extent that the jury could not have been supposed to have understood the real extent of the special benefits to be considered. State v. Jones, 15 S.W.2d 338; Wyandotte Railroad Co. v. Waldo, 70 Mo. 629; Randolph on Eminent Domain, section 270; 1 Elliott on Roads and Streets (4 Ed.), sec. 279; 2 Lewis on Eminent Domain (3 Ed.), sec. 720. (4) The court erred in refusing to grant the appellant's motion for a new trial on the ground of an excessive verdict. The verdict, as stated by the trial judge, was excessive and unjust. Cook v. Globe Printing Co., 227 Mo. l. c. 546; Clifton v. Kansas City Southern R. R. Co., 232 Mo. 708; Schmidt v. St. Louis Railroad Co., 149 Mo. 269; Iron Mountain Bank v. Armstrong, 92 Mo. 265; Lockwood v. The Atlantic Mutual Insurance Co., 47 Mo. 50; Devine v. St. Louis, 51 L.R.A. (N. S.) 860, and note in connection therewith; Chitty v. Iron Mountain Railroad Co., 148 Mo. 64; Reid v. Piedmont & Arlington Life Insurance Co., 58 Mo. l. c. 429; Bank v. Wood, 124 Mo. 72; Choquette v. Southern Electric Railroad Co., 152 Mo. 257; McCarty v. Transit Co., 192 Mo. 396; Gregory v. Chambers, 78 Mo. 294; Watson v. Harman, 85 Mo. 443; Pritchard v. Hewitt, 91 Mo. l. c. 551; Hannibal Bridge Co. v. Schanbacker, 49 Mo. l. c. 558; Harding v. Medway, 10 Met. (Mass.), 465; Hanson v. Johnson, 141 Wis. 550; Jewell v. Wisconsin-Minnesota Light & Power Co., 181 Wis. 56, 194 N.W. 31; Werthman v. Railroad Co., 128 Iowa 135; L. & N. R. Co. v. Burnam, 214 Ky. 736; K. C. W. & N.W. R. R. Co. v. Ryan, 49 Kan. 1; 2 Lewis on Eminent Domain (3 Ed.), p. 1377, sec. 776; 1 Graham and Waterman on New Trials (2 Ed.), 451; 4 C. J. 1140; 20 C. J. 1046; City of St. Louis v. Worthington, 19 S.W.2d 1066.

Spradling & Dalton for respondents.

BENNICK, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.

--This is a condemnation proceeding which was instituted at the instance of the State Highway Commission in the Circuit Court of Bollinger County, the purpose of the action having been to acquire certain lands belonging to defendants, Cora M. Camren and Ernest Camren, for use as a right of way for State Highway No. 51, a hard-surfaced, gravel road, extending from Patton southwardly through Marble Hill. Commissioners were appointed by the court, and in due course their report was filed, awarding to defendants the sum of $ 75 as damages. Exceptions to the report were filed by defendants, and the case eventually taken on change of venue to the Cape Girardeau Court of Common Pleas, where, upon a trial to a jury, a verdict was returned in favor of defendants, assessing their damages at the sum of $ 1,080. Judgment was entered accordingly, from which plaintiff appealed to the Supreme Court, evidently upon the theory that title to real estate was involved; but following its ruling in Missouri Power & Light Co. v. Creed (Mo. Sup.), 30 S.W.2d 605, that court found that jurisdiction was vested in us, and consequently ordered the cause to be transferred here. State ex rel. Piepmeier v. Camren (Mo. Sup.), 33 S.W.2d 913.

Defendants' farm consisted in its entirety of some one hundred thirty acres, and was located approximately four miles north of Marble Hill, along the line of the proposed highway. It had been acquired by defendants in 1917 at a cost of $ 1,000, and thereafter they made certain improvements upon it until at the time when condemnation proceedings were begun, its market value was estimated by them to have been as much as $ 3,000.

The old Patton-Marble Hill county road had crossed the farm from north to south, while the new highway crossed it from east to west, leaving the farm divided into four tracts, three of them containing, roughly, twenty-five acres each, and the fourth, about fifty-five acres. The right of way for the highway, which was sixty feet in width, extended across the farm for a distance of one hundred twenty-five rods, and all told required the absolute taking of three acres of land.

The evidence showed that the highway was constructed along a ridge, and that the improvements placed upon the farm by defendants were situated on the land lying some distance beneath. Defendants complained that the drainage of the new road turned the water down across their fields, and overflowed the well; that the water was also caused to drain down upon the old road, which passed directly by their buildings, leaving it rough and inconvenient to get over, and thereby rendering the new highway inaccessible to them; that crossing the new highway with live stock caused them considerable inconvenience; that two hundred fifty rods of additional fencing were required, at a cost of $ 1.35 to $ 1.50 a rod; that the manner in which the farm had been subdivided largely destroyed its sale value; and that they had received no special and peculiar benefits from the construction of the new road.

According to the testimony of defendants and their witnesses, the net damage done to the farm ranged all the way from $ 800 to $ 2,200.

The evidence for plaintiff was that the land was only worth from $ 5 to $ 10 an acre; that defendants were not damaged in excess of the value of the land actually taken for a right of way, together with the cost of necessary fencing; and, in fact, that they had been specially benefited, in that the market value of the farm as a whole had been materially increased by the construction of the new highway across it, which afforded defendants better means of ingress and egress than they had theretofore enjoyed, at least towards the east and the west.

Plaintiff complains on this appeal of the giving and refusal of instructions, and of the excessiveness of the verdict.

The present opinion comes as the second one in the case. In our former opinion, after the first submission of the case, we expressed the view that one of the instructions given for defendants contained reversible error, the same purporting to define the special benefits which might be deducted from the whole of the damages in computing the amount of the award. The case was again argued and considered on rehearing; and while we are still of the opinion that the particular instruction was indeed erroneous, in so far as it restricted special damages to those "which are not enjoyed by other lands in the same neighborhood"--thus excluding from the consideration of the jury such special benefits, if any, as were shared in kind by other land similarly situated, though short of all the land in the same neighborhood--we are now convinced that a reversal would be unwarranted on that account, either for the reason that defendants' instructions, when read as a whole, might fairly be said to have cured the error, or else for the reason that the error was mutual to both the parties. We mention the above in fairness to counsel, so that they may be advised of the considerations which have cast grave doubt upon the propriety of our former position; and now, with the issue of the instruction out of the way, we are brought to the question of the excessiveness of the verdict, or, more accurately stated, to the question of whether or not the learned trial judge, in overruling the motion for a new trial in which the issue of excessiveness was duly raised, was precluded through a misconception of the law of the case from exercising his true discretion in the matter.

The abstract shows that at page 74 of record "Q" of the lower court is to be found the following order, taking somewhat the form of a memorandum opinion, which was entered at the time plaintiff's motion for a new trial was taken up and overruled.

"The motion for a new trial in this cause is now taken up, counsel on both sides having furnished briefs which the court carefully examined, together with the transcript of the testimony, and the court finds that from the evidence considering the demeanor of the witnesses on the stand, the manner in which they testified, and taking into consideration the court's personal knowledge of the value, character, location of the land in question, and the general depreciation of all land values, the court is...