State ex rel. State Highway Commission v. Vorhof-Duenke Co.

• Decision Date: 08 April 1963
• Docket Number: No. 48681,VORHOF-DUENKE,48681
• Citation: 366 S.W.2d 329
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v.COMPANY, a corporation, Milton Construction & Supply Company, a corporation, A. Y. Building Company, a corporation, and A. R. Building Company, a corporation, et al., Appellants.
• Court: Missouri Supreme Court

Page 329

366 S.W.2d 329

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. VORHOF-DUENKE COMPANY, a corporation, Milton Construction &amp Supply Company, a corporation, A. Y. Building Company, a corporation, and A. R Building Company, a corporation, et al Appellants.

No. 48681.

Supreme Court of Missouri, En Banc.

April 8, 1963.

Ziercher, Tzinberg, Human & Michenfelder, Albert A. Michenfelder, Jr., Clayton, for appellants.

Robert L. Hyder, Minor C. Livesay, Samuel C. Ebling, Jefferson City, for respondent.

STORCKMAN, Judge.

This is a suit for the condemnation of land adjacent to the existing U. S. Highway 66 in northern St. Louis County for the construction of a limited-access highway, Interstate Route 270. The proposed new highway begins at the Missouri-Illinois state line and runs westwardly to its junction in St. Louis County with Interstate Route 70. The construction involves increasing the present right-of-way from 100 feet to 367 feet. Practically all of the new right-of-way will be taken from land on the south side of U. S. 66. The defendants own land on both sides of the existing right-of-way, most of which is zoned for commercial use; the rest is residential. The condemnation commissioners appointed by the court awarded the defendants damages in the total sum of $216,500. The plaintiff and the defendants both took exceptions to the commissioners' report. Four affiliated corporations, Vorhof-Duenke Company, Milton Construction & Supply Company, A. R. Building Company, and A. Y. Building Company, owned the land in question, but it was stipulated for the purposes of trial that the four companies could be treated as an entity and the damages could be awarded in one lump sum in the name of Vorhof-Duenke Company. The jury found for the defendants in the sum of $100,000 and they have appealed. The relator Highway Commission did not appeal.

U. S. Highway 66 runs generally east and west in northern St. Louis County. It is intersected by New Halls Ferry Road, which runs from the northwest to the southeast, and Old Halls Ferry Road, which runs pracially north and south at the place in question. The two Halls Ferry Roads which are more than 1400 feet apart where they intersect U. S. 66 converge and unite a short distance south of U. S. 66, thereby forming a triangle consisting of approximately forty-four acres, all of which was owned by the defendants. Immediately north of the triangle and U. S. 66, the defendants owned sixty-five acres bounded on the east by Old Halls Ferry Road and on the west by New Halls Ferry Road. Both of these tracts north and south of U. S. 66 were zoned for commercial use. In the southeast quadrant of the intersection of U. S. 66 and Old Halls Farry Road, the defendants owned additional land abutting on both highways and having a frontage on U. S. 66 of 441 feet that was zoned commercial and 1690 feet zoned residential. The residential property had been platted as a subdivision known as Hathaway Manor. The defendants acquired and assembled pratically all of this land in 1952. They planned to develop and to use the forty-four acres in the triangle south of U. S. 66 as the site of a regional shopping center because of its location and accessibility to the two Halls Ferry Roads and U. S. 66. The testimony and exhibits show that in recent years real estate improvement in northern St. Louis County has been very rapid and that a number of subdivisions and commercial enterprises have been developed in this area.

In this vicinity the project for the construction of Interstate Route 270 follows generally the established route of U. S. Highway 66. It will consist of two pavements, one eastbound and the other westbound, separated by a median strip. There will be a service road, or outer roadway, on the north and one on the south. Access to the Interstate Route will be limited and permitted only at designated intersections. For eastbound traffic, there will be an off ramp east of and leading into New Halls Ferry Road. An outer roadway will connect Old and New Halls Ferry Roads south of the pavements of the new highway. There will be an on ramp extending eastward from Old Halls Ferry Road permitting traffic to enter the eastbound traffic lane. There will be off ramps for westbound traffic both at Old Halls Ferry Road and New Halls Ferry Road. The Interstate Highway will pass under Old Halls Ferry Road and over New Halls Ferry Road. The present pavement of U. S. 66 will serve as the outer roadway on the north; there will be no extension to the north of the present right-of-way of U. S. 66. The only land taken from the sixty-five-acre tract on the north side is in area of about a quarter of an acre consisting of two strips, each about thirty feet wide, one from the defendants' land on the east side of New Halls Ferry Road, and the other from land on the west side of Old Halls Ferry Road for widening the turnouts on those Roads.

The two pavements of Interstate 270 and the service road and ramps for the eastbound lane will all be south of U. S. 66 as it presently exists. The bulk of the land taken in this condemnation is a strip about 267 feet wide on the south side of the old right-of-way between the two Hlls Ferry Roads and extending east of Old Halls Ferry Road into the Hathaway Manor subdivision. In addition to land previously mentioned, irregular pieces and strips were taken on the east side of New Halls Ferry Road and on both sides of Old Halls Ferry Road for the purpose of widening those highways and constructing turnouts. The parties stipulated that a total of 26.376 acres of the defendants' land was taken.

The condemnation action was filed on February 16, 1959. The date of taking was treated as June 26, 1959, and defendants' damages were to be assessed of that date. The trial began on September 26, 1960. The defendants having the burden of proof on the issue of damages presented their evidence first. Mr. Vorhof and Mr. Duenke each testified that the defendants' damages by reason of the taking were in excess of $800,000. The testimony of the former was $835,475 and the latter $866,886. They were experienced real estate men and had been associated for a number of years in the development of commercial and residential real estate. One other witness on behalf of the defendants testified that the damages were $522,660 and another $573,500. All of these opinions as to damages were after allowance of special benefits resulting from the construction of the new highway, which, from the defendants' viewpoints, consisted solely of a drain to be constructed on the south side of the new right-of-way. The evidence showed that in October 1959 the defendants sold thirteen acres from the triangle to Central Hardware Company at $20,000 per acre pursuant to a contract made prior to June 1959.

The principal questions presented on this appeal relate to the admission of evidence with respect to the value of special benefits to the remaining land and the manner in which these issues were submitted by the instructions to the jury. The plaintiff having the burden of proof on the amount of special benefits presented the testimony of three experienced real estate appraisers. All of these witnesses testified that the land remaining after the taking was worth more than it was before because of benefits resulting from the construction of the highway and that, therefore, the defendants had suffered no damage. One testified that the value of all of the defendants' land before the taking was $937,275 and the value of the remaining land after the taking was $1,003,000. Another testified that the value before the taking was $1,002,000 and afterwards it was $1,099,000. The other testified that the total value before the taking was $938,800 and that the value of the remaining land after the taking was $984,000. In general, the plaintiff's witnesses ascribed the increase in value to the construction of the service drives, or outer roadways, along the new highway and to a drainage ditch along the south side of the new right-of-way, and to the off and on ramps to be constructed at Old Halls Ferry Road and New Halls Ferry Road.

The first six points in appellants' brief involve the same basic principles of law. They relate to the admission of evidence as to special benefits and the instructions submitting to the jury the issues of special benefits. The instructions complained of are numbered 7, 8, and 9. They are as follows:

Instruction 7: 'The court instructs you that the term 'special benefits', as used in these instructions, means any benefits causing an increase in the market value of a tract of land by reason of its position directly on an improved highway and which benefits are not enjoyed generally by other tracts of land in the neighborhood, no portion of which lands is taken by said highway; and such benefits are special and not general benefits, although conferred, if you so find, upon all the other tracts of land situated on the highway.'

Instruction 8: 'The court instructs the jury that if you find and believe from the evidence that the location and construction of the state highway immediately adjacent to the remainder of defendants' lands not taken by plaintiff, will increase the fair market value of such remaining lands, solely because of the immediate proximity and accessibility of such remaining lands to said highway, then such increase in value, if any, solely due to such proxmity or immediate accessibility, is a special benefit and should be considered by you as such, even though you may further find that such special benefit, if any, is also enjoyed by other lands immediately adjacent to said highway, no portion of which is taken for state highway purposes, and that you should deduct such special benefits, if any, from the damages, if any, to which the defendants may be entitled for the taking by plaintiff of a portion of their land and the damages, if any, to the...