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

• Decision Date: 20 April 1993
• Docket Number: No. WD,WD
• Citation: State ex rel. Missouri Highway and Transp. Com'n v. Turner, 857 S.W.2d 293 (Mo. App. 1993)
• Parties: STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent, Cross-Appellant, v. William D. TURNER, et al., Defendants, and William R. Rutherford and Virginia M. Rutherford; Willian E. Womack and Orville Womack, d/b/a 4 Seasons Bait and Tackle, et al., Appellants. 46027.
• Court: Missouri Court of Appeals

Page 293

857 S.W.2d 293

STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent, Cross-Appellant, v. William D. TURNER, et al., Defendants and William R. Rutherford and Virginia M. Rutherford; Willian E. Womack and Orville Womack, d/b/a 4 Seasons Bait and Tackle, et al., Appellants.

No. WD 46027.

Missouri Court of Appeals Western District.

April 20, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 1, 1993.

Application to Transfer Denied Aug. 17, 1993.

Joseph R. Borich, III, Kansas City, for appellants.

Peter M. Donovan, Judy L. Curran, Kansas City, Rich Tiemeyer, Jefferson City, for respondent.

Before KENNEDY, P.J., and BERREY and SPINDEN, JJ.

SPINDEN, Judge.

The primary issue in this appeal is whether the Missouri Highway and Transportation Commission (MHTC) can abandon its condemnation action for a temporary construction easement after the property owner challenges the original condemnation award of $1000 and obtains a jury verdict of $20,000. We resolve this and other issues pending in this cross appeal by concluding, as the trial court did, that MHTC had the authority to abandon its condemnation, and we affirm the trial court's awarding interest to the respondents on the difference between the commissioners' award of $1000 and the jury verdict of $20,000.

The dispute began when MHTC condemned the easement in preparation for widening Mo. 291 in front of property owned by William and Virginia Rutherford in Independence. MHTC proposed to widen the highway to four lanes and to install a concrete median barrier in the center so traffic could not turn left except at intersections.

MHTC filed a condemnation petition on June 12, 1990, for a temporary easement, 10-feet wide and about 70-feet long, so it could construct a new entrance to the Rutherfords' property. The easement was to end when the construction was complete, but it was to endure for no more than two years. MHTC did not seek a permanent easement. Included in the project was a new driveway from the highway to the Rutherfords' property.

On August 28, 1990, court-appointed commissioners awarded $1000 to the Rutherfords for the easement. The Rutherfords filed an exception in circuit court on September 5, 1990. A week later, MHTC paid the $1000 award into court.

At trial, on February 3, 1992, the court permitted evidence of damages to the Rutherfords and the business on the property, 4 Seasons Bait & Tackle. The court permitted the Rutherfords to present evidence that their property's value would fall $60,000 because of the median divider and that construction would damage business by $20,000. The court did not permit evidence of lost business profits. MHTC's evidence set the Rutherfords' damage at $300. The jury returned a verdict of $20,000 for the Rutherfords.

On February 10, 1992, MHTC filed an Election to Abandon Condemnation Proceedings. The Rutherfords objected. The trial court sustained MHTC's election but awarded the Rutherfords 6 percent interest, for a period of September 20, 1990, to February 10, 1992, on the $19,000 difference between the jury verdict and the commissioners' award. The court did not vacate the jury verdict. MHTC did not abandon its plans to widen the highway and to install the median divider. Neither party appeals the jury verdict.

Rutherfords' Appeal

The Rutherfords appeal on three grounds. They complain that the trial court wrongly permitted MHTC to abandon the condemnation because MHTC had already paid the commissioners' award and thus gained title. They assign error to the court's limiting the amount the Rutherfords could collect in view of the abandonment to 6 percent interest on $19,000 from September 20, 1990, to February 10, 1992, and to its not awarding them attorney's fees and expenses for attorney expenses incurred after the commissioners' award.

MHTC's Right to Abandon Condemnation Proceedings

The Rutherfords acknowledge MHTC's right to abandon a condemnation, as provided by Rule 86.06, ¹ but they argue that MHTC's election was too late. MHTC, they argue, had to abandon before paying the commissioners' award, and, because MHTC paid the award, it lost the right to abandon. We disagree.

Rule 86.06 provides:

Upon making payment to the clerk of the amount assessed [by the commissioners] for the party or parties in whose favor such damages have been assessed, it shall be lawful for the condemner to take possession and hold the interest in the property so appropriated for the uses [prescribed]; and, upon failure to pay the [commissioners' assessment] within ten days after it becomes final, ... the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the same by execution, unless the condemner shall, within said ten ... day period, elect to abandon the proposed appropriation of any property, by an instrument in writing to that effect, to be filed with the clerk of such court, and entered on the minutes of the court, and to so much as is thus abandoned the assessment of damages shall be void.

This rule grants the condemnor the right to abandon within 10 days of the award's becoming "final." The Rutherfords contend that the award became final when MHTC paid the commissioners' award because title passed upon payment.

It is true that payment of an award divests title. "It is a well settled rule that in condemnation suits brought under the general statutes ... the easement in or title to the property condemned is fully acquired by the condemnor when it pays to the owner, or into the court for him, the amount of the damages awarded by the commissioners." State ex rel. State Highway Commission v. Houchens, 235 S.W.2d 97, 101 (Mo.App.1950). MHTC, therefore, obtained title to its easement when it paid the $1000 commissioners' award.

Nonetheless, the Rutherfords filed an exception to the commissioners' award, as Rule 86.08 grants them the right to do. The effect of this was to render the commissioners' award "functus officio," as the Deutschman court described it; it made "the cause [to stand] as though no commissioners had ever been appointed." State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755, 142 S.W.2d 1025, 1028 (Mo.1940) (quoting The School District of Kansas City v. Phoenix Land and Improvement Company, 297 Mo. 332, 249 S.W. 51 (Mo.1923)). This is because, as the Supreme Court has explained, "the question of compensation must first be passed on by a board of freeholders, but their assessment is not conclusive, for the court is given the power to review their assessment, and to make such order therein as right and justice may require[.]" State ex. rel. Hilleman v. Fort, 180 Mo. 97, 79 S.W. 167, 169 (Mo.1904).

Although MHTC had title to its easement, it did not exercise any rights of ownership or possession. Doing so would have cut off its right to abandon. "[T]he right to abandon is lost if the [condemnor has] reduced the land to possession, and constructed the public improvements thereon[.]" Id. 79 S.W. at 170-71.

Hence, the award was not final until the court entered judgment for the jury's award of $20,000. MHTC abandoned the condemnation within the 10-day limit of Rule 86.06. Its action was lawful.

The Rutherfords challenge this interpretation of Rule 86.06 on the basis of dicta in Kansas City Southern Railway Company v. Second Street Improvement Company, 166 S.W. 296, 302 (Mo.1914):

As a general rule, the appropriation and taking is fixed as of the date the commissioners make their report of the damages, and the condemning party pays such sum into court for the benefit of the landowner. Up to this point the party can abandon the condemnation, but when the payment is made, there is and has been a taking of the property in a constitutional sense.

Payment results in a taking "in a constitutional sense" because title passes. Title passed to MHTC when it paid the commissioners' award, and the Rutherford's withdrew the money for their immediate use. They were compensated immediately, and they received additional compensation, as we discuss at page 9.

This did not mean, however, that MHTC could not abandon the property. Although it held title, it could abandon so long as it took no steps to exercise ownership rights.

The Rutherfords cite cases--Washington University Medical Center Redevelopment Corporation v. See, 654 S.W.2d 192 (Mo.App.1983); Kansas City v. McElroy, 331 S.W.2d 28 (Mo.App.1959); and Nifong v. Texas Empire Pipe Line Company, 40 S.W.2d 522 (Mo.App.1931)--which seem to suggest that a condemnor's payment of the commissioners' award cuts off the right to abandon. For example, the See court said in a footnote:

An exception [to the right to discontinue proceedings] is when the condemner has paid the assessed damages into court and thereby taken title to the property. At this point the right to discontinue the proceedings ceases even though the final assessment may not have been determined. State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755, 142 S.W.2d 1025, 1028 (1940); see Kansas City v. McElroy, 331 S.W.2d 28, 32 (Mo.App.1959).

Id. 654 S.W.2d at 194 n. 3. On page 1028 of 142 S.W.2d, the page cited by the See court, Deutschman said:

[T]he condemner, upon payment of the commissioners' award, may proceed to construct [on the property], notwithstanding the fact that such exception may have been filed; and if it does so, it takes possession of the tract of land condemned and title passes to it. But if it does not take possession of any parcel of land condemned, then it has ten days to elect to abandon it after the final assessment has been made, either by subsequent commissioners or by a jury. ²

The See court apparently failed to distinguish between Deutschman's reference to "possession" and making payment but not taking possession. In any case, the cited passage in See and the other cases is unpersuasive dicta.

The holding of the Supreme Court of Missouri...