State ex rel. Morton v. Allison

Decision Date02 May 1962
Docket NumberNo. 8068,8068
PartiesSTATE of Missouri ex rel. Clifford MORTON and Lulabelle Morton, Relators, v. Honorable Emery W. ALLISON, Judge of the 25th Judicial Circuit of Missouri, Respondent.
CourtMissouri Court of Appeals

Weldon W. Moore, Rolla, for relators.

Robert L. Hyder, Bruce A. Ring, Jefferson City, for respondent.

RUARK, Presiding Judge.

In this prohibition case we are confronted with the unwelcome task of attempting to interpret an engineer's description and to construe and apply Supreme Court Rule 86.06, V.A.M.R., in respect to the reinstitution of condemnation proceedings.

On April 3, 1961, the state highway commission filed its petition in condemnation against owners involved in its proposed plan for the construction of some 7.124 miles of highway (designated as Route 63) in Texas County. In that case (No. 7384) relators' land was involved and they were made parties. Commissioners were appointed and they filed their report assessing the damages about May 9. About May 15, 1961, the highway commission filed its written abandonment in accordance with Section 523.040 RSMo 1959, V.A.M.S., and Rule 86.06. Thereafter, on August 10, 1961, the commission filed a new suit (No. 7432) setting forth the lands of relators to be taken by a different description. On August 18, 1961, relators filed motion to dismiss Case No. 7432 on the ground that the lands and abutters' rights of access involved in that case were a part of the land condemned and then abandoned in previous Case No. 7384, and that this was in violation of Rule 86.06, which provides, among other things, that if the condemnor abandons the appropriation as to any property, proceedings for condemnation of the same property shall not be instituted again within two years thereafter. The circuit judge overruled said motion and indicated he would appoint commissioners. We issued our preliminary writ and the case is here on the return of the respondent with such facts only as are conceded in the pleadings and the briefs of the parties.

The description of the land and rights sought to be taken in the abandoned proceeding is as follows:

'18.11. All that part of the Clifford Morton tract lying in the S-1/2 SW-1/4 Sec. 5, T 30 N, R 9 W, which is included in a parcel lying northwesterly of Route 63, Texas County, and southerly of main street of Houston, Missouri, and easterly of a line extending southerly from 35 feet and opposite Station 1 (symbol) 50 which is a point 350 feet north of and 14 feet west of the southeast corner of the SW-1/4 SW-1/4 Sec. 5, of the side road connection on main street, Houston, Missouri, to 70 feet opposite Station 1086(symbol) 80; thence southwesterly 70 feet opposite Station 1087(symbol) 12.55 of Route 63, Texas County, which is a point 193 feet north of and 47 feet east of the southwest corner of the SE-1/4 SW-1/4 Sec. 5.

'18.20. Also, all abutters' right of direct access between the highway, now known as U. S. Route 63, Texas County and Grantors' abutting land in the S-1/2 SW-1/4 Sec. 5 T 30 N, R 9 W, extending from Station 1 (symbol) 50 of said side road connection of main street to opposite Station 1087 (symbol) 12.55 of said Route 63, Texas County.'

The description in the present suit is:

'9.11. All that part of Grantors' tract lying in the S-1/2 SW-1/4 Sec. 5, T 30 N, R 9 W, which is included in a parcel 70 feet wide lying northwesterly of and adjoining the surveyed centerline of said Route 63, Texas County, and extending from Station 1086 (symbol) 00 of said centerline to Station 1087 (symbol) 12.55. Said centerline is described as follows: Station 1086 (symbol) 00 is a point 341 feet north of and 117 feet east of the southeast corner of the SW-1/4 SW-1/4 of said Sec. 5, from which point and from a tangent bearing South 39~ 00' 28.4'' West said centerline deflects left on a spiral for a 6~ curve, 112.55 feet to Station 1087 (symbol) 12.55 which is a point 251 feet north of and 47 feet east of said southeast corner, excepting therefrom that portion previously acquired.

'9.20. Also, all abutters' right of direct access between the highway, now known as U. S. Route 63, and Grantors' abutting land in the S-1/2 SW-1/4 Sec. 5, T 30 N, R 9 W, from opposite Station 1086 (symbol) 00 to opposite Station 1087 (symbol) 12.55 on the right.'

The first question is, was the description in Case 7384 so vague and incomplete as to be a complete nullity? If so, as the highway commission contends it was, then that proceeding was void and can be disregarded. Sassman v. State Highway Commission, Mo.App., 45 S.W.2d 1093, 1095. Or was it, as is the contention of the owners, a description, however defective, from which the land could be located?

There is no question that the description in the first petition is not a good one. We think the statute and the rule contemplate that the condemnor shall describe the land and rights sought with such particularity that the owner can, without too much difficulty, ascertain exactly what is being taken. Law of Eminent Domain, Jahr, Sec. 225, p. 345; 18 Am.Jur., Eminent Domain, Sec. 325, p. 969; 29 C.J.S. Eminent Domain Sec. 259a, p. 1228; State ex rel. N. W. Electric Cooperative, Inc. v. Waggoner, Mo.App., 319 S.W.2d 930, 934; see Missouri Pac. Ry. Co. v. Carter, 85 Mo. 448, 451. He should not be compelled to employ a surveyor to go upon the land and run a survey simply in order to learn what it is the state takes by sovereign right. A description which relies upon highway stations alone, although, in most instances, intelligible to a qualified surveyor with the highway plans in his hands, is incomprehensible to the average man, and too often to his attorney, and such has been the source of not infrequent complaint. We think it is not asking too much to say that the owner's lands should be described by metes and bounds referenced to congressional section corners, recorded plat, or fixed and readily ascertainable monuments. And we think the description in Case No. 7384 was subject to motion by the owner. But in this instance the owners are not complaining. It is the creator of the description which now attacks it.

Filed with the petition, adopted by reference, and made a part of the petition is the detail plan of the improvement, which, the petition states, shows 'the location of said highway through the lands herein affected and the particular parcels of land sought to be acquired' from the owners. The petition further states that such detail plans are intended to describe the parcels of land; and, finally, reference is made to such plans for a more accurate and perfect description of said parcels and rights sought to be taken. 1 Reference for the same purpose is made to 'the surveyor's stakes heretofore driven along the line of said highway.'

Referring now to 'stations,' these are, as we understand, points on a center survey line. The commencing point is 00. Thereafter a survey station is established each 100 feet and given a progressive number. Thus Station 1 (symbol) 50 would be 150 feet from the beginning point. 2 Normally, if there be no immediate reference point, an owner's surveyor might have to survey back to the beginning point of the project survey to locate a particularly designated station.

By referring to the plat or plans incorporated in the petition, we learn that the land involved lies adjacent to the intersection of 'present Rte. 63 to be obliterated' and the main street of Houston, Missouri. The route of the new or projected improvement comes in from the north and virtually rejoins 'present' 63 at this intersection. The plans show a garage adjacent to this (almost) three-way intersection.

It will be noted that the part of the Morton tract to be taken lies in the south half of the southwest quarter, Section 5, Township 30, Range 9; that it lies northwest of Route 63 and south of the main street. Thus north and easterly barriers are fixed by these two roads. Highway says that the southeast corner of the southwest quarter of the southwest quarter is not located 350 feet north and 14 feet west of Station 1 (symbol) 50 as referred to in the first description. This we think (from a comparison of the surveys in Cases 7384 and 7432) is probable. But in this case we can locate Station 1(symbol) 50 as a fixed position. The plans show the center of the intersection of Main Street and the highway to be 0 (symbol) 00 Main Street and 1085 (symbol) 45 highway. From there we can reach the point Station 1 (symbol) 50. A fixed location by monument would prevail over courses and distances. 3 Highway says that we cannot locate the point of beginning at 35 feet from such station because we would not know what direction to go. Although we do not recommend the use of the word in descriptions purporting to advise a landowner what land of his is being taken, we think that opposite means, in engineering language, perpendicular to a survey line. Webster's New International Dictionary, 2nd ed., says that 'with respect to a given line two points are opposite when their connecting line would cross it at right angles.' Since Main Street is shown to run in an eastwest direction, and since the land lies south of Main Street, and since the future course of the boundary line is directed to run to the south, there could be only one direction the 'opposite' point could be, viz., to the south. Otherwise the survey line would run out into or across Main Street and then retrace its steps.

We can determine the location of Station 1086+80 and Station 1087+12.55 by reference to the fixed point 1085/45 in the center of the highway. We thus complete the west line, which encloses an area bounded on two sides by the highway and Main Street, and so arrive at a somewhat triangular-shaped figure representing the land to be taken. Hence, although the description in Suit 7384 is not to be...

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4 cases
  • Jackson County v. Hall, KCD
    • United States
    • Missouri Court of Appeals
    • October 31, 1977
    ... ... See also State ex rel. Highway Commission v. Wright, 312 S.W.2d 70, 73-74(3) (Mo.1958); ... v. Levin, 304 S.W.2d 478, 483 (Mo.App.1957); State ex rel. Morton v. Allison, 357 S.W.2d 733, 737(5) (Mo.App.1962) (transferred, see State ... ...
  • State ex rel. Mississippi County v. Stallings, 53305
    • United States
    • Missouri Supreme Court
    • December 9, 1968
    ... ... State ex rel. Morton v. Allison, Mo., 365 S.W.2d 563, 564(2) ...         It should also be noted that the application of Rule 74.30(10), relied on by plaintiff, ... ...
  • State ex rel. Morton v. Allison
    • United States
    • Missouri Supreme Court
    • March 11, 1963
  • State ex rel. State Highway Com'n v. Spell, 45589
    • United States
    • Missouri Court of Appeals
    • January 17, 1984
    ... ... State ex rel. Morton v. Allison, 357 S.W.2d 733, 736-37 (Mo.App.1962). In Morton the court referred to the detailed plans and was able to discern the tract described in ... ...

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