State ex rel. State Highway Commission v. Hill

• Decision Date: 23 December 1963
• Docket Number: No. 8195,8195
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator-Appellant, v. Eugene HILL and Julia Alice Hill, Respondents.
• Court: Missouri Court of Appeals

Page 666

373 S.W.2d 666

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of

Missouri, Relator-Appellant, v. Eugene HILL and Julia Alice Hill, Respondents.

No. 8195.

Springfield Court of Appeals, Missouri.

Dec. 23, 1963.

Robert L. Hyder, Bruce A. Ring, Jefferson City, for relator-appellant.

Richard M. Webster, Carthage, Moore, Pettit & Steinle, J. Hal Moore, Aurora, for respondents.

HOGAN, Judge.

This is a condemnation case. It involves the acquisition of part of the condemnees' farm as right-of-way for a limited access highway. A jury, by unanimous verdict, has awarded the sum of $9,300 as damages. The State Highway Commission has appealed. For convenience, we shall refer to the Commission as the relator and to the condemnees as the defendants.

The defendants' farm as a 77-acre tract located about four and one-half miles west of Sarcoxie, Missouri. The defendants have lived on this farm for about eighteen years, and the evidence indicates they have substantially improved its condition during that time. There is a two-bedroom frame house on the farm equipped with modern heating and plumbing facilities, and the outbuildings are in good condition. About half the land is cultivated but the farm is operated primarily as a dairy farm. At trial time the defendants maintained a dairy herd of eighteen milch cows and ten head of 'replacement stock,' and marketed the milk locally.

In order to understand the parties' contentions and the defendants' claim for damages, it is necessary to describe the tract of land involved, at least roughly. The farm consists of two (approximately) 40-acre tracts running north and south, and might be described as the West Half of the Southeast Quarter. For purposes of exposition, we may regard the tract as half a quarter section with the 1320-foot boundary running east and west and the half-mile boundary running north and south. The testimony, as we understand it, relates principally to the south half of the farm. The improvements on the farm--the house and outbuildings--lie in the southwest corner of the tract, between 450 feet and 650 feet north, and some 50 feet to 100 feet east of the southwest corner of the tract. Access to these improvements, and indeed the only access to the farm so far as the record shows, is gained by a road which is simply described as a 'county road.' This appears to be an improved gravel road, approximately 35 feet wide. Beginning at the southwest corner of the defendants' land, this road runs some 750 feet north along the west side of the defendants' farm, where it ends, forming a cul-de-sac or 'dead-end.' About one-half mile south of the defendants' property line, this county road intersects a paved highway. The county road is used by the defendants to travel to Sarcoxie for supplies, their milk is picked up by a carrier which travels this road to their house, and their children ride to school on a bus which also uses this county road. Their mailbox is located at the intersection of the county road and the paved highway. In short, it was the defendants' position that this road was their link with, or access to, the outside world.

The relator has condemned a strip of ground some 123 feet wide off the entire south side of the defendants' property, and this right-of-way will, of course, cross the county road at right angles. Since access to the new road will be limited and no access to the 'thruway,' as it is called, will be provided at this point, the defendants' direct access to the paved road lying to the south will be permanently blocked, although the relator is constructing a new road to run west from the southwest corner of the defendants' property which will connect with other roads lying to the west. In addition, the relator has condemned a small plot of ground along the north side of the new right-of-way about 330 feet east of defendants' west property line, for construction of a drainage ditch. In order to construct this ditch or 'channel,' as it is referred to, the relator must remove a retaining wall or 'dam' which the defendants had constructed to control the natural surface drainage at this point.

In substance, the defendants raised two issues on the trial of this case. First of all, they apparently believe that, although the relator is constructing a new road to provide them with another means of access to their property, the new route which they shall take is not only extremely circuitous but at times impassable, and therefore they are being denied reasonable access to the general system of highways. They also sought to show that the relator's drainage channel would in some manner interfere with the natural surface drainage on the south part of their farm. The relator attempted to show that the only loss which the defendants would suffer would be that consequent upon the taking of the approximately four acres of right-of-way which it condemned. The relator maintained upon the trial, and vigorously asserts here, in several different ways, that the trial court erroneously allowed the jury to award the defendants compensation merely because the defendants must now travel a more circuitous route to reach points south of their property. We note that both parties filed exceptions to the original award of damages made by the commissioners appointed by the trial court; the relator maintained that the original award was excessive, the defendants that it was inadequate.

With some reluctance, we have reached the conclusion that we simply cannot decide this case on its merits. We are aware that we should finally dispose of a case before us on appeal, if possible. Rule 83.13(c), V.A.M.R.; State ex rel. George v. Mitchell, Mo.App., 230 S.W.2d 116, 120; Axsom v. Thompson, 239 Mo.App. 732, 739, 197 S.W.2d 326, 331[8-10]. It is the duty of an appellate court to exercise its jurisdiction freely so as to provide a review upon the merits in every instance where it may properly do so. Weller v. Hayes Truck Lines, 355 Mo. 695, 699, 197 S.W.2d 657, 659. This, however, presupposes a record and evidence upon which a court can function 'with some degree of confidence in the reasonableness, fairness and accuracy of its final conclusion.' Phelps v. Watson-Stillman Co., 365 Mo. 1124, 1132, 293 S.W.2d 429, 435. In this case, the record is so vague and ambiguous that we cannot, with any degree of confidence, ascertain what the facts are, nor determine what principles of law should be applied.

Although the record is obscure in several respects, most of the ambiguity in this case arises out of the parties' use of a map or plat filed here as relator's Exhibit 1. This exhibit is a scale drawing, which shows the outline of defendants' property, and also shows in some detail the proposed right-of-way, the county road adjoining the farm, and the location of some of the buildings on the defendants' property. It was prepared by the relator's draftsmen and, as far as it goes, it admittedly a correct representation of the objects it purports to show. It does not, however, show any of the physical features of the tract in question, (except part of a creek) nor the location of any of the adjacent roadways, nor any segment of the route over which the defendants say they must now travel.

Mr. Hill himself testified at some length concerning the damage he had sustained because of the condemnation. A few examples of this testimony, with the observation that there is absolutely no mark nor identification of any kind indicating the direction or location of the objects or places about which he was testifying, will illustrate our difficulty. At one point, Mr. Hill was interrogated concerning the access he will have to his property after the county road is relocated. Obviously explaining his testimony, or attempting to do so, by means of the map or plat, he testified:

'Q. Is it a correct statement that the State of Missouri will build a road along here? A. Right in here?

'Q. Yes, to the west for one-half mile? A. Yes, that is right. I see what you mean now. * * *

'Q. Now, tell us from that point, how you can get to Sarcoxie? A. I can't. That is a dead-end. It will be closed. I will have to turn and go north here, because this road will dead-end.

'Q. You are talking about this road this road this runs along here? A. Yes, it will dead-end here, and I will have to go north and then back east. * * *

'Q. Now, to get out to Highway 166, how do you go? A. Well, I am right here, and I guess I will go a half mile south from here.

'Q. All right. You may sit down now. * * *

'Q. Now, this road that runs parallel to the road you live on that you will hit when you go one-half mile west and then turn north--now, you go north, did you say, a mile and a half? A. Yes.

'Q. Now, in that one and a half miles, tell us about that road. * * * A. The road is narrow. You go east after you have gone north for a mile and a half, and there is three spillways.

'Q. Where, on the road you travel east on? A. Yes.

'Q. When you have gone north a mile and a half, then you turn to the east, and that is the road, you say, has three spillways on it? A. Yes, you have to cross three spillways there. They are little concrete spills on the road there. * * *'

Being asked about the other routes he would have available to reach Sarcoxie and other points after construction of the new thruway, Mr. Hill testified as follows, again without marking or otherwise indicating the objects or places about which he was speaking:

'* * * A. I can get right here. Say, I am on this road that runs along the north edge here and go a half mile this way and I hit this little road in here and go a mile and a half this way, and I can go to Joplin then--go two and a half miles west here to get access to this new freeway.

'Q. That route, you say, would put you on the freeway to Joplin? A. Yes, I live right in the middle of the free way, and I can go to...