State ex rel. State Highway Commission v. Ellis, 8308

• Decision Date: 17 September 1964
• Docket Number: No. 8308,8308
• Citation: 382 S.W.2d 225
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. A. J. ELLIS et al. Exceptions of C. Arch BAY and Virginia E. Bay, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 225

382 S.W.2d 225

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. A. J. ELLIS et al. Exceptions of C. Arch BAY and Virginia E Bay, Defendants-Respondents.

No. 8308.

Springfield Court of Appeals, Missouri.

Sept. 17, 1964.

William T. Powers, Jr., Springfield, for plaintiff-appellant.

J. Weston Miller, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for defendants-respondents.

RUARK, Presiding Judge.

This is in condemnation on the question of just compensation. Plaintiff, now appellant, is the State Highway Commission, which we will hereafter refer to as 'Highway.' In 1954 it engaged in a project which involved widening and other construction on Route 65 along Glenstone Avenue, which runs north and south through the eastern portion of the City of Springfield. The old highway was two-lane pavement (the exact width of which we are not sure) with wide shoulders covered with chat or crushed stone, part of which had some kind of asphaltic covering and part of which had some kind of oil. It seems to be conceded by all parties that Glenstone was a reasonably busy street. Defendants Bay (hereinafter called Owners) owned five properties along this street. Two of them, a restaurant building (or steak house, as the Owner called it) and a filling station, were both included as Item 19 of the Petition. They were located on a tract at the northeast corner of the intersection of Glenstone and Grand Street. Another tract, sometimes called 'the root beer property' or the 'drive-in' (Item 17), lay on the southwest corner of the intersection of Glenstone and Belmont, which is the first street north of Grand. Yet another property was a grocery store (Item 20) located on the southeast corner of Glenstone and Grand; but, since no damages were allowed in respect to it, we need not consider it further. The area was one suited to businesses which served those who come by automobile. The business properties above-mentioned were devoted to purposes for which they were adapted and, as was said, at least in respect to the filling station (over which rages the greatest controversy in regard to Owners' compensation), to the 'highest and best use.' A short distance south of these business properties was a residence which, because of the size of lot (fifty-foot front), the parties also seem to agree was devoted to its best use. We will consider it separately hereafter.

We refer back to the business property in the block between Grand and Belmont. All of this was situate on a grade to conform to the then street level. The restaurant and filling station sat on a tract fronting approximately two hundred ten feet on Glenstone. Sixty feet of it was devoted to the restaurant and (the corner) one hundred fifty feet to the filling station. Depth of the filling station property apparently was one hundred twenty feet. Previous to this taking, Owners had at their own expense installed an underground drainage system, consisting of a fifteen-inch pipe with iron gratings. This conformed to the existing street grade and, according to Owners' evidence, took care of the drainage perfectly. They had also paved completely out to join the then existing street paving, all this according to Highway's specifications. There was no curb and gutter. This left what was referred to as one hundred per cent level access across the full two-hundred-ten foot front of the two businesses. That is, customers of the filling station or restaurant could turn in or drive out anywhere along that distance. The filling station building extended thirty-two feet north and south and twenty-four feet east and west. It was frame with white brick veneer and plastered interior, on foundation, with office and display room, two rest rooms, wash room and rack, grease room with drain. It had attic or overhead storage space and compressed air hoists both inside and outside; in front was a pump island with three self-metering pumps in operation. Driveways, between the building and the island, and between the island and the then property line, were ten feet in width. This property had been leased to an oil company on a (then) standard one cent per gallon rate. Average gross annual rentals received based on such gallonage in the five years previous to the date of taking were approximately $1,802.27.

The restaurant or 'steak house' building, eighteen by forty feet plus rest rooms (additions) was on foundation and had wood floor covered with tile, kitchen, and booths with room to serve thirty-six people, exclusive of the bar and stools. This was leased as a dinner house at $90.00 per month, plus five per cent of the gross volume of business. Average rental was $150.00 per month.

The drive-in (or 'root beer') property on the other side of the street up the block at the intersection of Belmont and Glenstone had a frontage of one hundred fifty feet and also had level 'one hundred per cent access.' The building was frame with logs nailed to the outside in order to give a rustic effect. Its dimensions were twenty-two and seven-tenths by twenty-six feet. On the front it had a porch effect with what appears (from the Defendants' picture exhibit) to have been a serving counter running across the front. This property was devoted to the sale of root beer and soft drinks, coney islands, hamburgers, et cetera. Owner valued the building alone at $5,000.00. Distance from the front of the building to the then (before) property line was variously stated at twelve to fifteen feet. According to the Owner, there weas (before takin) room for customers to park in front or drive around and park at the sides and in the rear. Owners had leased this property for six years from July 2, 1952. Rental was $125.00 per month.

The date of taking was July 2, 1954. The construction by Highway involved the building of a four-lane highway (instead of the previous two-lane) with a parking lane on each side and curb and gutter. The project required the taking of an additional five feet of land across the fronts of Owners' property on both sides of the street and a change of from seven to ten inches in grade. Limited entrances or driveways through the curb and gutter were provided instead of previous complete, level, and unrestricted access. The chief designer for Highway testified that the construction left a 'sharp dip' at the front of the filling station property.

The commissioners awarded Owners $1,125.00 for the drive-in property and $1,700.00 for the restaurant-filling station, nothing for the grocery store or residence. Owners excepted, and the case was tried by the court without a jury.

In this trial, Owners' evidence was that the filling station, as it then existed, was in practical effect rendered useless because the appropriation of land off the front left only five feet of space outside the pump island. The restoration of usefulness required the moving back and restoration of the station with its pumps, lifts, wiring, et cetera (at an estimated cost of $4,000.00), the acquiring of additional land at the rear in order to make room, and also the grading off of the lot to meet the change of grade and repavement of such (total cost for that according to the Owners was a little more than $4,000.00). Estimates of various witnesses for the Owners were that the filling station property had suffered an over-all decrease in before and after value in amounts ranging from $13,000.00 to $6,500.00, and that the restaurant property had suffered a decrease in before and after value ranging from $3,000.00 to nothing. Two witnesses (Dennison and Riebold) for Highway considered the restaurant and filling station as one property and in answer to the question propounded by its counsel--'Taking into consideration, immediately after July 2nd, 1954, the date of taking, the projected construction of a six lane highway, curbs and and guttering, deceleration lanes, pavement, condition of the new construction, new pavement, do you have an opinion as to the market value of that property after July 2, 1954?'--stated that there was an increase in overall value of the combined or whole property of $4,500.00 and $3,700.00, respectively. The trial court found that Owners were entitled to just compensation of $5,000.00 for the filling station property and nothing for the restaurant property.

As to the drive-in property, Owners' witnesses variously estimated that it had suffered an over-all decrease in before and after value ranging from $5,000.00 to $3,000.00. It was their view that, because of the loss of space in front of the building, the property had lost its usefulness for the purpose to which it was adapted and had been devoted. Another reason offered (by at least one of Owners' witnesses on cross examination) was the lessening or difficulty of access due to construction of two driveway entrances through the curb and gutter. Highway's witnesses, Riebold and Dennison, gave estimates of an increase in value of $1,800.00 and $2,000.00. As to this drive-in property, the trial court allowed just compensation in the sum of $3,500.00.

The court also allowed $500.00 as compensation for appropriation under a construction easement at the front of the residence.

The over-all total found for just compensation was $9,000.00. To this amount the court added interest at six per cent on the sum of $6,175.00 (the difference between the $2,825.00 deposited as commissioners' award on July 2, 1954, and the amount found to be due as just compensation on date of judgment, September 20, 1963).

Highway's first assignment is that the addition of interest on the amount in excess of that deposited for the taking was error; that the 'interest statute,' Sec. 523.045 V.A.M.S. (S.B. No. 248, Laws of 1959), should not be applied retroactively because such statute deals with substantive rights. That section, as appellant contends, deals with three situations: (1) where the condemnor abandons the project, (2) as...