State ex rel. Missouri Highway and Transp. Com'n v. Horine

• Citation: 776 S.W.2d 6
• Decision Date: 08 September 1989
• Docket Number: No. 71339,71339
• Parties: STATE ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent, v. Jack HORINE and Wanda Horine, et al., Appellants.
• Court: United States State Supreme Court of Missouri

Page 6

776 S.W.2d 6

STATE ex rel. MISSOURI HIGHWAY AND TRANSPORTATION

COMMISSION, Respondent, v. Jack HORINE and Wanda Horine, et al., Appellants.

No. 71339.

Supreme Court of Missouri,

En Banc.

Sept. 8, 1989.

Werner A. Moentmann, Richmond, for appellants.

Judy Curran, Rich Tiemeyer, Earl H. Schrader, Jr., Mallory Burnett, Missouri Highway & Transp. Com'n., Kansas City, for respondent.

ROBERTSON, Judge.

The issue in this case is whether a landowner who is a party in a condemnation action may recover consequential damages to his land even though those damages are the product of the taking of land owned by other condemnees in the same condemnation action. Appellants assign error to the trial court instructing the jury not to consider evidence of diminished market value to the appellants' property that may result from an increased likelihood of flooding following the construction of the new Route 210. The Court of Appeals, Western District, reversed and remanded. A dissenting judge certified the case to this Court on the basis of a perceived conflict between the majority's opinion and previous decisions of this Court. This certification forms the basis of our jurisdiction. Mo. Const. art. V, § 10. Although we find no conflict with prior appellate decisions of this state, we retain jurisdiction because of the general interest and importance of the question raised. Pace v. City of Hannibal, 680 S.W.2d 944 (Mo. banc 1984). We now reverse and remand.

I.

Appellants, Jack and Wanda Horine, own and occupy a tract of farm land in Ray County, Missouri. Respondent, the Missouri Highway and Transportation Commission (Commission), is constructing a new Route 210 near the Horine land. In conjunction with the highway project, the Commission condemned a small portion of the southeast corner of the Horine land for the purpose of relocating a county road that will eventually connect with the new highway. The new Route 210 does not pass through or abut the Horine property.

A creek flows through the Horine land, passing under a county road bridge. Prior to construction of the new highway, when the creek overflowed, the water would drain over the old highway. The Commission designed the new highway at a higher elevation than the old Route 210. The Horines contend that the elevation of the new, higher highway will act as a dam and prevent the escape of water when the creek overflows. Instead of simply draining over the old highway, the Horines contend that the water will back up onto their land, flooding their residence and outbuildings.

Jack Horine testified that the creek has overflowed between eight and ten times in the past thirty years and that the construction of new Highway 210 would definitely stop the flow of water escaping their property. Mr. Horine also stated that their property has decreased in value due to the danger of flood.

According to the testimony of registered professional engineer Harold B. Townsend, an expert in hydraulics and hydrology, the creek channel at the county road bridge would accommodate a storm that would occur every five years (taken over a great span of time) and any greater storm would overflow its banks. Townsend testified that a five-year frequency storm would possibly flood the Horine residence and outbuildings, and that the area is subject to flooding considering 50- and 100-year frequency storms. Townsend stated, "There is no question in my mind from a hydraulic standpoint, hydrologic standpoint, that sometime in the future that house will be flooded." He further testified that the new highway would cause the water level in the flooded area to rise faster--in a matter of minutes, not hours.

The testimony of real estate broker and appraiser Melvin Thacker was that the threat of flooding contributed to an estimated $42,500 diminution in the value of the tract as a result of the taking. He testified:

So we are talking about something like 17 feet of fill across in front that's going to create a pond. We are going to back up water, and we have no relief or no spillway, so to speak ... Mr. Horine is going to be in an area where he can't buy flood insurance ... I don't think anyone would buy a piece of property in a flood area unless they bought it cheap enough to take the gamble.

The right of way appraiser for the Highway Commission testified that the danger of flooding was not an item of damage in the appraisal because "the question of whether the excavation would have any effect upon drainage or flooding in the area was brought up, and the answer was it would not cure existing problems, but it would not create any problems either, so it would be the same before as after."

At the outset of trial, the Commission moved to exclude evidence of any flooding potentially attributable to future construction on Route 210 because such damages could not be the consequence of the taking of the easement to relocate the county road. The Commission argued that appellants had no standing in this case to claim damages for the potential threat of flooding because the Horines' land was not taken for construction of the highway, that their property did not abut the highway at its present or future location and that any increase in the likelihood of flooding was not proximately caused by the taking of the Horines' land.

The trial court denied the Commission's motion in limine and admitted the evidence concerning potential flooding and reduction in the market value of appellant's farm over respondent's objection. After the evidence had concluded, respondent renewed its objections, made throughout the trial, to the evidence of reduced value of appellant's farm attributable to potential flooding. The court agreed and gave the following instruction which withdrew that evidence from the jury's consideration:

The evidence of potential flooding caused by the construction upon land not owned by defendants of Route 210, and of loss of view across land not owned by defendants is withdrawn from the case and you are not to consider such evidence in arriving at your verdict.

II.

"[P]rivate property shall not be taken or damaged for public use without just compensation." Mo. Const. art. I, § 26. Courts generally distinguished between damages resulting from physical entries onto private land and damages resulting from indirect encroachment of private property rights. See generally 4A Nichols' on Eminent Domain §§ 14.01, et seq. (3rd rev. ed. 1985). Three clear rules have developed consistent with the distinction between kinds of damages recognized by the courts.

First, physical appropriation of property, in whole or in part, entitles the landowner to compensation for the property taken; these damages are direct damages and are paid in advance of the taking. Lemon v. Garden of Eden Drainage Dist. of Chariton County, 275 S.W. 44, 46, 310 Mo. 171 (1925); State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 58 S.W.2d 988, 992, 332 Mo. 547 (banc 1933). Second, where a landowner whose property is not being condemned anticipates damage to his property as the result of a condemnation, he is not a necessary party to the condemnation proceedings and may not be compensated until damage actually occurs. State ex rel. State Highway Commission v. Lynch, 297 S.W.2d 400, 402-03 (Mo.1956); Lemon, 275 S.W. at 46; Hill-Behan Lumber Co. v. Skrainka Const. Co., 106 S.W.2d 483, 485-86, 341 Mo. 156 (1937); Guaranty Savings & Loan Ass'n. v. City of Springfield, 139 S.W.2d 955, 957, 346 Mo. 79 (banc 1940). Third, once a landowner is entitled "to direct damages as the result of the loss of his property, he is entitled to the market value of the land actually taken, and the consequential damages, ¹ if any, to the remainder of the land caused by the taking." State ex rel. State Highway Commission v. Long, 422 S.W.2d 276, 278 (Mo. banc 1967), quoting City of St. Louis v. Vasquez, 341 S.W.2d 839, 846 (Mo.1960).

The issue presented in this case is one of first impression. This Court has not previously considered the question whether a landowner who is a party to a condemnation proceeding and who is entitled to direct damages for the taking of his land may also recover consequential damages to his land that result not from the taking of his land, but from the taking of other land within the same condemnation action. The certification of this case to this Court by the dissenting judge at the court of appeals is founded on a perceived conflict between the majority's opinion and Hill-Behan, 106 S.W.2d at 485; Chicago R.I. & P. Ry. v. George, 47 S.W. 11, 14, 145 Mo. 38 (1898); City of St. Louis v. Kisling, 318 S.W.2d 221, 224 (Mo.1958); State ex rel. State Highway Commission v. Allison, 296 S.W.2d 104, 111 (Mo. banc 1956); and State ex rel. State Highway Commission v. Lynch, 297 S.W.2d 400, 403 (Mo.1956). Because this is a case of first impression, we do not believe a conflict exists in the cases. ² Nevertheless, the case is here and presents a question of general interest and importance; we will retain jurisdiction. Pace v. City of Hannibal, 680 S.W.2d 944 (Mo. banc 1984).

The Commission argued in support of its motion in limine that the taking of the .10 acre strip for relocation of the county road was not the direct and proximate cause of the Horines' damages. As a consequence, the Commission urged, the jury should not be allowed to consider the consequential damages might be caused by potential flooding to the property. Before the court of appeals, however, the Commission (as respondent) offered a different rationale for pretermitting consideration of the Horine's claimed consequential damages: that the consequential damages claimed are too remote and speculative to be considered. We shall consider both arguments.

A.

As previously indicated, the Commission argued at trial that the consequential damages sought by the Horines were not caused by the taking of their land and were thus not properly considered in determining the...