State ex rel. State Highway Commission v. Clevenger, 45056

• Decision Date: 14 May 1956
• Docket Number: No. 45056,No. 2,45056,2
• Citation: 291 S.W.2d 57,365 Mo. 970
• Parties: STATE of Missouri, ex rel. STATE HIGHWAY COMMISSION, Appellant, v. Harry A. CLEVENGER and Hettie J. Clevenger, Respondents
• Court: Missouri Supreme Court

Page 57

291 S.W.2d 57

365 Mo. 970

STATE of Missouri, ex rel. STATE HIGHWAY COMMISSION, Appellant, v. Harry A. CLEVENGER and Hettie J. Clevenger, Respondents.

No. 45056.

Supreme Court of Missouri, Division No. 2.

May 14, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 11, 1956.

Robert L. Hyder, Ralph H. Duggins, Minor C. Livesay, Jefferson City, for appellant.

Robert F. Sevier, William E. Turnage, Liberty, for respondents.

EAGER, Presiding Judge.

The State Highway Commission, as relator, instituted condemnation proceedings to acquire lands in Clay County for the relocation of a portion of Highway 69 as a limited access highway. We are concerned here only with the land and interests of Harry A. Clevenger and his wife. They were awarded $4,400 by the commissioners, filed timely exceptions, and were thereafter awarded $15,000 by a jury. The relator has appealed. For convenience, the parties will be referred to as relator and defendants. We have jurisdiction because of the amount involved.

Defendants owned a farm of 176.38 acres in a somewhat irregular shape; it is bounded on the west by Fishing River, on the south largely by the old channel of that river (it having been diverted at that point in a previous highway project), and on the east by a county road. The north boundary is immaterial here. The drainage on this farm was largely to the south. No farm buildings have been physically disturbed. The old Highway 69, a twoway route, bordered the farm on the south for a distance of approximately 150-200 feet, extending westerly from the east line to a ditch. The Highway Department has, as indicated in the petition, established Highway 69 at this point as a limited access highway, using the old route for eastbound traffic and establishing a new roadway for westbound traffic; the latter lies north of the old road, and runs generally northeast and southwest. For this project relator has appropriated 9.27 acres of defendants' land for the new right of way and for a relocation of the county road; in addition, 1.38 acres are to be used under a temporary construction easement for a 'borrow-pit.' The strip thus taken for the new roadway is approximately 2,000 feet in length and includes a drainage easement north of the roadway, extending from the relocated county road to the west line of the property. A drainage ditch will run along this easement to the old channel of Fishing River, defendants' westerly boundary. No culverts are provided under the new roadway. Approximately nine acres of defendants' land are left between the old and new roadways of the highway. These nine acres are also bisected by the relocated county road, which now runs southwesterly from a point on defendants' east line for approximately 1,000 feet (north of the new roadway, but within its right of way), thence across the new roadway and southerly to a point where it intersects the old roadway of Highway 69 at defendants' south line. The relocated county road serves as an access road for defendants' property throughout its entire length, but access to the highway proper is otherwise denied defendants, as specified in the condemnation petition. The new westbound roadway is approximately 5 to 6 feet above the ground level of defendants' adjacent land, and the relocated county road gradually slopes downward from that roadway, reaching the old ground level at its intersection with old 69. It was agreed that 220 rods of new fencing would be required to separate defendants' remaining land from the highway. The numerous other details of the construction need not be mentioned.

Defendants had owned and occupied this farm for many years. There was wide divergence in the testimony on valuations, both as to the value of the land taken and the damage to the land remaining; or, putting the matter in another way, in the difference between the fair and reasonable market value of the land before and after the taking. We cannot go into the details of all this testimony. The witnesses for defendants fixed the total damages at figures varying from $11,800 to $20,990; these witnesses (aside from defendant Harry Clevenger) were nearby real estate dealers and neighboring farmers. They fixed the original value of the farm at figures varying from $44,000 to $52,800. Two of relator's witnesses fixed the total net damages (considering special benefits) at $2,294.50 and $2,960, respectively, and the other testified that defendants derived a net benefit of $2,230. Apparently defendants' witnesses thought there were no resulting special benefits. The disparity in the resulting views of the total damages was caused in part by the completely opposite views as to the value of the nine acres left between the two roadways and also bisected by the new county road. Defendants' witnesses attributed to this tract a greatly depreciated value, while relator's witnesses thought it now very valuable as commercial property because it would presumably be available as a site for one or more filling stations, and perhaps for other commercial development; they explained that such improvements could (subject to a re-zoning) be constructed at the access point where the county road intersected the new west roadway, though necessarily they would face the county road. We find it unnecessary to discuss the details of this controversy. One witness for relator, employed by an oil company, testified specifically that in his opinion the nine acre tract was worth $8,500 after the new construction, because of the limited number of access sites available. Defendants' witnesses emphasized the obstruction of the drainage and the possibility of flooding, the necessity of new fencing, the inconvenience of farming the separated tracts and of passage between them, the limitation of access to the new highway, and the good quality of the land taken. Other features of the evidence will be discussed hereinafter.

One of the points made here by appellant, and certainly not the least important or troublesome, is that the court erred in permitting defendants' witnesses to testify to an item of damage resulting from the 'limitation of access' from defendants' land to the new route of the highway, and in submitting this to the jury as an element of damage. As a corollary, relator also insists that the court erred in refusing its Instruction A, which would have instructed the jury that it might not consider any limitation of defendants' right of access to any part of the highway not in existence at the time of the appropriation. This raises a question new to the jurisprudence of Missouri, and one which is relatively new elsewhere. We shall discuss all those cases cited by relator which we deem sufficiently in point.

We note first that Sec. 29, Art. IV, Mo.Const.1945, V.A.M.S., gives to the State Highway Commission full '* * * authority * * * to locate, relocate, * * * maintain * * * construct and reconstruct state highways, * * * and * * * to limit access to, from and across state highways where the public interest and safety may require, subject to such limitations and conditions as may be imposed by law.' The powers of the Highway Commission are set out generally in Chapters 226 and 227, RSMo 1949, V.A.M.S. In the case of State ex rel. State Highway Commission v. James, Banc, 356 Mo. 1161, 205 S.W.2d 534, 538, this court held: that the power of eminent domain was inherent in sovereignty; that under the above constitutional provision and the existing statutes the Commission had full power to condemn easements in land for rights of way, and also to extinguish easements of access held by abutting owners, which in themselves were interests in land; that the aforesaid provision declared that such limitation of access was a proper subject for, and purpose of, condemnation proceedings, subject to such limitations as the general assembly might impose. That case is of little specific help on our present question, for the actual decision there merely required the circuit court to accept and exercise jurisdiction of all the issues thus tendered, including the power of the Commission to limit access by condemnation. The admeasurement of damages was not actually an issue in this court. The court did say: 'Existing law, both statutory and constitutional, already limit and condition the taking of any interest in land by providing that just compensation must be ascertained and paid in the manner provided by statute.' From the opinion it is difficult, to say the least, to compare the factual situation of the property owners there with that of the defendants in the present case; this fact will be further demonstrated in the following discussions. The authorities there relied on would seem to indicate that what the court had in mind was the extinguishment of an existing easement of access to an existing roadway.

Essentially, the Commission contends that since the new westbound roadway was never in existence, actually or potentially, until the appropriation was made, defendants could not possibly have had any previous right or easement of access to it; and, since the right of access was restricted by the very same appropriation, no easement of access ever arose, except as permitted thereby; further, that such supposed and nonexistent right of access was a wholly improper element of damage to the land remaining.

This principle has been adopted in several California cases, although the facts therein differ somewhat from ours. Thus, see: Schnider v. State, 38 Cal.2d 439, 241 P.2d 1, 43 A.L.R.2d 1068; City of Los Angeles v. Geiger, 94 Cal.App.2d 180, 210 P.2d 717; People v. Thomas, 108 Cal.App.2d 832, 239 P.2d 914. Those cases hold generally that if there was no roadway adjacent to defendant's premises in which he had an easement of access prior to the appropriation, then the appropriation and limitation effected no disturbance of an existing right; and that there was no loss which would constitute special...