State ex rel. Highway Com'n of Missouri v. Williams

• Decision Date: 23 May 1932
• Citation: 51 S.W.2d 538,227 Mo.App. 196
• Parties: STATE EX REL. HIGHWAY COMMISSION OF MISSOURI, APPELLANT, v. JOHN S. WILLIAMS ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

51 S.W.2d 538

227 Mo.App. 196

STATE EX REL. HIGHWAY COMMISSION OF MISSOURI, APPELLANT, v. JOHN S. WILLIAMS ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

May 23, 1932

Certiorari denied July 7, 1932.

Appeal from the Circuit Court of Clay County.--Hon. Ralph Hughes Judge.

AFFIRMED.

Judgment affirmed.

John W Mather, Jean Paul Bradshaw and John C. Collet for appellant.

James S. Simrall and Lucien J. Eastin for respondent.

OPINION

TRIMBLE, P. J.

Appeal from a condemnation proceeding in the circuit court of Clay county, brought to that court on change of venue from Platte county, wherein plaintiff, the State Highway Commission, sought to condemn, for hard surfaced highway purposes, a strip of land, containing 15.95 acres, across defendants' 560-acre farm in said last named county. In addition to the right of way wanted, certain borrow pits along the right of way were also sought which, with the roadway, made up the 15.95 acres.

Commissioners appointed by the circuit court of Platte county, viewed the land and made a report awarding "no damages," evidently considering the special benefits as at least equalling the value of the land actually taken and the damages to the farm by the taking. The defendant owners filed exceptions to the report, a change of venue was asked and granted, and the case was tried, all as above stated, resulting in a verdict assessing defendants' damages at $ 1500, from the judgment on which, the plaintiff Highway Commission has appealed.

As located, the strip condemned for highway purposes cuts off from the rest of the farm one tract of 9 and 3/10 acres and another of 29 and 3/10 acres. The evidence is that as to both the 9 and 3/10 acres and the 29 and 3/10 acres, in addition to being cut off from the rest of the land, the difficulty of farming these tracts in the sharp-pointed shape they are left in and other conditions, they are damaged from a third to a half of their value; taking the entire tract of 560 acres, it was worth $ 125 to $ 135 per acre before the road was located through it and worth only $ 115 an acre after that. The location of the road in the place it was would compel the erection of fences and it could not be pastured in the way it had been theretofore done, the fences amounting to two miles; that the cost of such extra fencing would be added at the rate of $ 40 per 80 rods; that the two tracts cut off would be unprofitable to farm because of their irregular shape, etc.; that the depreciation of the entire farm would be $ 10 per acre; that the location of the roadbed would retain the water on the land north of the road; some evidence was to the effect that, after the road was put through, the farm would be worth $ 20 per acre less; and the two tracts cut off would be difficult to sell, etc. In fine, there was abundant evidence that the farm was damaged considerably more than the amount recovered; that the value of the land actually taken was $ 125 per acre amounting to $ 1993.75. Some criticism of the witnesses is made on the ground that they could not know values of land, but, of course, as there was evidence that they did, that was a matter for the trial judge and the jury to pass on, the judge to decide whether the witnesses were competent and qualified to testify on that subject, and the jury to determine the weight and value of their testimony. We cannot determine either of those matters, nor can we arrive at a decision of what to do with this case by peering into them.

It is the contention of plaintiff that the landowners have been more than compensated for the land by the special benefits accruing to the remainder of the land by reason of the location of the hard surfaced highway through, or adjacent to, it. Part of the special benefits are claimed to arise by reason of affording an easier access to portions of the land through the construction by the Highway Commission of a bridge across a creek, the bridge affording a readier access to that part of the farm lying south of the new highway. As to the highway affording a better access to the farm as a whole, the evidence in plaintiff's behalf was that there was no lack of ready and easy access to the farm before this highway was established. One tenant who had lived in the "East house" on the farm said that there was a road on the east and one on the south, the east road being the one that went across the creek and he used that a great deal, especially in going to the town of Dearborn about a mile and a half away; that no difficulty was had by any one who wanted to "go through there" or who had farm land there. Other evidence showed that on the east, road No. 71 was already there, and the one on the north was an ordinary dirt road, considered a "pretty good road, though not oiled, men travelled thirty-five or forty miles per hour on it.

The evidence of plaintiff, in attempting to show special benefits, was to the effect that the landowners had experienced difficulty in getting to the outlying portions of their farms because of having to cross Bee Creek and Bezzard Branch, but that the Highway Commission has constructed over the former a concrete bridge of three 50-foot spans, and over the latter, at a point where the water was 20 feet deep, a concrete bridge at a cost of nearly $ 9000; also that two culverts, about 32 feet in length had been installed to take care of the drainage of the bottom land, and also that the new highway 80 feet wide, with an 18-foot concrete slab along the center thereof tended to establish special benefits to the landowners "because of the proximity of this hard surfaced high-type state highway." Because of these things witnesses for plaintiff thought the remainder of the farm had been enhanced in value all the way from $ 10 to $ 40 per acre, and one of plaintiff's witnesses was of the opinion that the farm had been enhanced $ 3000 in value. It is not at all certain, however, from all such testimony (indeed, in at least some of the witnesses' testimony, it was rather manifest to the contrary), that the witnesses for plaintiff were not, consciously or unconsciously, including general benefits along with special benefits, in their estimates of the enhancement.

Plaintiff urges that Instruction No. 2 is erroneous in that it refers to defendants' Instruction No. 1 for a definition of what is "peculiar or special benefits" which plaintiff says is erroneous because it excludes, from the special benefits to be deducted, such benefits as are not alone special to defendants but are also special to a few other landowners. We were a little curious to know why error should be charged against No. 2 when, if there is any error, it is in Instruction No. 1, Instruction No. 2 being erroneous, if at all, only because of the claimed error in No. 1. An examination of the record, however, disclosed that the record states affirmatively that plaintiff "did not object" to the giving of Instruction No. 1, hence plaintiff is not in a position to complain of it as being erroneous but charges error against No. 2 in that it referred to No. 1 and was, therefore, erroneous because No. 1 contained error. In other words, at the trial, Instruction 1 was unobjectionable, but, in the appellate court, it is erroneous. This would seem to be somewhat anomalous. However, we prefer not to dispose of the point solely on this ground.

An examination of Instruction No. 2 does not mention or refer specifically to Instruction No. 1 for a definition of the terms "peculiar or special benefits," but refers expressly to "other instructions," as will appear from a view of Instructions Nos. 1 and 2. They are as follows: --

"No 1.

"You are instructed that the sole question for your determination in this case is the amount of damages, if any, the defendant will suffer as the result of the action of the State Highway Commission in taking the tract of land proposed to be taken and the damages, if any, resulting to that part of defendant's land not taken. You will, in estimating the damages, if any, find the quantity and value of the land taken by the State Highway Commission for a right-of-way and the damages, if any, to the whole tract by reason of the road running through it, and deduct from these amounts the benefits, if any, peculiar to the said tract of land, arising from the running of the road through the same; and by peculiar benefits to that land, is meant such benefits as that land derives from the location of the road through it, as are not common to the other lands in the same neighborhood. The peculiar benefits, if any, as herein mentioned, must be such as result to the entire tract or farm of defendant, in particular, and not the general benefits accruing to it, in common with other lands or farms in the immediate neighborhood of defendant's said tract or farm, or of said proposed road.

"No. 2.

"The court instructs the jury that the burden is upon the plaintiff in this action to prove by the preponderance or greater weight of the evidence that the lands of the defendant remaining after the particular tract sought to be condemned has been taken out, have received peculiar or special benefits, as those terms have been defined in other instructions in this case, and unless you find that the plaintiff has so proven such peculiar or special benefits you will not allow such benefits against the damages which you may find, if any, the lands of the defendant have sustained. By the terms burden of proof and preponderance of the evidence, as used in this instruction the court does not refer to the number of witnesses sworn on either side, but means that, in point of value and credibility, the evidence to sustain such peculiar or special damages must outweigh that for the defendant; and the jury are...