State ex rel. State Highway Commission v. Armacost Motors, Inc., 57606

• Decision Date: 10 December 1973
• Docket Number: No. 57606,No. 1,57606,1
• Citation: 502 S.W.2d 330
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff- Respondent, v. ARMACOST MOTORS, INC., et al., Defendants, and Airport-Auditorium Motel Corporation, Defendant-Appellant
• Court: Missouri Supreme Court

Page 330

502 S.W.2d 330

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff- Respondent, v. ARMACOST MOTORS, INC., et al., Defendants and Airport-Auditorium Motel Corporation, Defendant-Appellant.

No. 57606.

Supreme Court of Missouri, Division No. 1.

Dec. 10, 1973.

Earl H. Schrader, Jr., Minor C. Livesay, Frank O. Benson, Asst. Counsel, Missouri, State Highway Commission, Kansas City, for plaintiff-respondent.

Frank P. Sebree, Frederick Beihl, Shook, Hardy, Mitchell & Bacon, Kansas City, for defendant-appellant, Airport-Auditorium Motel Corp.

WELBORN, Commissioner.

Appeal from order of trial court, denying motion of defendant in condemnation action, to consolidate all of that defendant's exceptions and to try them together as exceptions relating to one assemblage, or alternatively to permit the value of each separate parcel owned by defendant to be shown to have been enhanced because of the 'reasonable probability' of their being, combined into one assemblage in the 'reasonably near future.' Jurisdiction of this court is premised upon a difference in value, in the event that the land be treated as an assemblage, of over $400,000 above the value of the tracts valued separately.

This appeal is a step in a protracted condemnation action, filed by the State Highway Commission in 1963, to obtain right-of-way for the construction of the Crosstown Freeway in Kansas City. The report of commissioners was filed November 8, 1963. Airport-Auditorium Motel Corporation was the owner of five contiguous parcels of property, each separately described in the condemnation petition, and located in the 1400 blocks of Broadway and Central.

In 1970, Airport-Auditorium filed its motion to consolidate its exceptions and to try the case as a case involving one assemblage of land leading to one verdict by the jury. Evidence on the motion was presented by both parties.

The theory of the defendant-movant was that the five tracts had been acquired for use as a motel site. The state's position was that the property had been acquired with full knowledge of the pending condemnation.

On October 27, 1971, the court entered its order, which was subsequently amended on December 2, 1971. The amended order reads as follows:

'The order of this Court entered October 27, 1971 is amended to read as follows:

'Exceptions to the award of the Commission for tracts mentioned in paragraphs 25.0, 26.0, 27.0, 28.0 and 29.0 of plaintiff's petition, in each of which defendant Airport-Auditorium Motel Corporation is alleged to own an interest, are consolidated for trial before one jury. However, defendant's motion that the cases be tried as if all the land constitutes one single tract for the purpose of arriving at values is overruled. The jury will be instructed to return a separate verdict with respect to each tract, and evidence rulings will be consistent with the above orders.

'Defendant's motion, in the form of a letter, filed November 15, 1971, that the Court rule that the various tracts of land may be enhanced in value because of the 'reasonable probability' of their being combined in the 'reasonably near future' is overruled. The Court concludes that defendant knew, or should have known, that the land would be taken by plaintiff, before the parcels were combined in one owner, and before there was any relationship between the various owners that might give rise to the reasonable probability of their being combined in the reasonably near future.

'This order is designated as a final order for the purpose of appeal.'

Defendant has appealed from this order.

As above stated, appellant premises the jurisdiction of this court on the claim that there is an amount in controversy in excess of $30,000, the notice of appeal having been filed prior to January 1, 1972. Respondent has not questioned the jurisdiction of this court. Neither party has given attention to the more basic problem of whether or not the order...