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

• Decision Date: 10 January 1984
• Docket Number: No. WD,WD
• Citation: 664 S.W.2d 589
• Parties: STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff-Appellant, v. R.C. McNARY, et al., Exceptions of Farview Cattle Company, Inc., Defendant-Respondent. 33818.
• Court: Missouri Court of Appeals

Page 589

664 S.W.2d 589

STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff-Appellant, v.R.C. McNARY, et al., Exceptions of Farview Cattle Company Inc., Defendant-Respondent.

No. WD 33818.

Missouri Court of Appeals Western District.

Jan. 10, 1984.

Bruce A. Ring, Jefferson City, Earl H. Schrader, Jr., James B. Jackson, Missouri Highway and Transp. Com'n, Kansas City, for plaintiff-appellant.

Bert H. Jacob, Jacob & Zuber, Kansas City, for defendant-respondent.

Before SOMERVILLE, P.J., and SHANGLER and MANFORD, JJ.

SOMERVILLE, Presiding Judge.

Condemnor (hereinafter State) appeals from a judgment for damages in a condemnation case in the amount of $70,000.00 in favor of landowner Farview Cattle Company, Inc.(hereinafter Farview).

Rights and interests in land, to-wit, 29.76 acres taken, 2.1 acres for a temporary easement and .27 acres for a permanent easement, situate in Caldwell County, Missouri, were acquired by the State in conjunction with the relocation and reconstruction of Missouri Route 13.The date of taking was January 15, 1975.Exceptions were filed by Farview and the case was tried to a jury in Jackson County on change of venue.

Immediately before the date of taking, Farview owned 342 acres of land, crossed by old Missouri Route 13, which was devoted to the production and sale of registered cattle.The land was located approximately one and a quarter miles south of Hamilton, Missouri, and was highly improved.Two residences and multiple buildings and facilities appropriate for a registered cattle operation, along with attendant fences, ponds, trees and terraces, were situate thereon.Old Missouri Route 13 meandered across the 342 acres of land on a high ridge giving traffic in both directions a panoramic view of the land, thus providing a natural "showcase" for Farview's registered cattle business.According to Farview's evidence, the highest and best use of the 342 acres immediately before the taking was operation of a registered cattle business except for a small acreage on the north part which lent itself to being subdivided for residential purposes due to its close proximity to Hamilton, Missouri.

Certain improvements, both natural and man-made, were on the land taken by the State, e.g. trees, a pond and fresh water spring, sections of terraces, sections of fences, and a 20' X 20' shed.The contour of the land taken resulted in several irregular shaped tracts in parts of the remainder.Access to old Missouri Route 13 was unlimited; Missouri Route 13 as relocated and reconstructed became a limited access highway.After the taking Farview's access was limited to seven 20-foot entrances scattered at random points along Missouri Route 13.

Several sections of paved slabs of old Missouri Route 13 were abandoned by the State on Farview's remaining property due to the course of Missouri Route 13 as relocated.Certain portions of preexisting fencing were taken, other portions, in part, were rendered obsolete, and certain additional fencing was required after the taking.Regarding terraces taken, erosion problems were subsequently encountered.According to Farview, the use to which the 2.1 acre temporary easement was put during the ensuing four-year construction period blocked access to 8.93 acres of its remaining land.

Homer Keith Snider, president of Farview, testified that the fair market value of the property in question immediately before January 15, 1975, was $400,000.00 and that its fair market value immediately thereafter was $250,000.00, and fixed the resultant damages at $150,000.00.The only expert witness called by Farview testified that the before value was $390,000.00, the after value was $257,000.00, and fixed the resultant damages at $132,500.00.Three expert witnesses were called by the State.They testified that the before value was, respectively, $284,000.00, $274,000.00, and $287,500.00, that the after value was, respectively, $250,000.00, $234,400.00 and $253,000.00.Accordingly, they testified that damages occasioned by the taking were, respectively, $34,000.00, $39,600.00 and $34,400.00.

The State raises five points of error on appeal, all involving the admission or exclusion of certain evidence pertaining to component elements of post taking damages.One: the trial court erred in admitting, over the State's objection, evidence adduced by Farview that post taking use of the 2.1 acre temporary easement during the four-year construction period denied it access to 8.93 acres of the remaining land, thereby reducing the after value of its land an additional $4,480.00.Two: the trial court erred in admitting, over the State's objection, evidence adduced by Farview as to both the value of preexisting fences taken and the cost of fencing required after taking as elements of damage diminishing the value of the remaining land immediately after the taking, thereby resulting in the recovery of "double damages".Three: the trial court erred in admitting, over the State's objection, evidence adduced by Farview as to the cost of removing slabs of abandoned pavement as an element of damage diminishing the value of the remaining land immediately after the taking, thereby resulting in cumulative damages for the same taking.Four: the trial court erred, as a matter of "plain error", in admitting evidence adduced by Farview as to damages occasioned by restrictions on the movement of cattle along and across Missouri Route 13, a limited access highway, in view of § 270.070, RSMo 1969.¹Five: the trial court erred in sustaining Farview's objection to an offer of proof by the State rebutting evidence of Farview that the remaining land after the taking was adversely affected for use as a registered cattle operation.

All five points relied on by the State on appeal will be seriately discussed.Although this court readily acknowledges that a ruling on one of several points would dispose of the appeal, all points will be addressed, albeit in varying degrees, in the hope of eliminating any reoccurrence of error in the same vein on retrial.

Point One revolves around certain testimony of Farview's expert witness as to the amount of damages attributable to the 2.1 acre temporary construction easement acquired by the State.In addition to testifying as to the reasonable rental value of the 2.1 acre temporary easement during the four-year construction period, Farview's expert witness further testified that use of the 2.1 acre temporary easement during the four-year construction period blocked Farview's access to 8.93 acres of its remaining land, thereby causing Farview to suffer additional damages in the amount of $4,480.00.

The answer to point One lies in certain basic principles of condemnation law.Tracking an ancient and well-established line of case authority, MAI 9.02, captioned "Damages--Eminent Domain--Part of Property Taken", the only damage instruction given below, directs that the measure of a landowner's damage is "the difference between the fair market value of defendant's whole property immediately before the taking [on (insert date of appropriation) ] and the value of defendant's remaining property immediately after such taking, which difference in value is the direct result of the taking and of the uses which plaintiff has the right to make of the property taken".Accordingly, damages in a condemnation case are temporally restricted in that they are to be determined with reference to the time of taking or appropriation rather than with reference to the time of trial or to the time of construction.See, e.g., KAMO Electric Cooperative v. Baker, 365 Mo. 814, 287 S.W.2d 858, 861(1956).

Elements of damage arising from the acquisition of temporary easements are spelled out in City of Cape Girardeau v. Hunze, 314 Mo. 438, 284 S.W. 471(1926).The court, in placing its imprimatur on an instruction in question, held that it properly "told the jury that they shall award to appellants the reasonable rental value of the land temporarily acquired for the time which plaintiff proposed to use it absolutely, i.e., from the date of the commissioners' report until January 1, 1924, and (besides) the damages which the jury might find from the evidence will result to appellants' remaining land because of such temporary use."(emphasis added)Id. at 480.KAMO Electric Cooperative v. Baker, supra, although dealing with construction damages occasioned by use of a permanent easement following the date of taking or appropriation, accommodated the element of consequential damages within the perimeters of the general principle set forth in the preceding paragraph by explicating the criteria for permitting evidence of damages which "will " result to a landowner's remaining land occasioned by use of an easement during construction.The court in KAMO tied evidence of ensuing damages occurring during construction to the date of taking by requiring a direct...