State ex rel. State Highway Commission v. Howald
| Decision Date | 08 September 1958 |
| Docket Number | No. 46189,No. 1,46189,1 |
| Citation | 315 S.W.2d 786 |
| Parties | STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. H. J. HOWALD et al., Defendants, Exceptions of: Echeal T. Feinstein, Sally C. Feinstein, Anthony Canzoneri and Pauline Canzoneri, Defendants-Appellants |
| Court | Missouri Supreme Court |
Jesse E. Bishop, Bernard Hollander, Echeal T. Feinstein, Anthony Canzoneri, St. Louis, for appellants.
Robert L. Hyder, Ralph H. Duggins, Jefferson City, for respondent.
HOLMAN, Commissioner.
In this condemnation case the commissioners appointed by the circuit court awarded Echeal T. Feinstein et al. (hereinafter referred to as defendants) the sum of $26,475 as damages for the appropriation of their property and they filed exceptions to said award. The subsequent circuit court trial resulted in a verdict and judgment for defendants in the amount of $23,143, and defendants have duly appealed therefrom. Since defendants claimed damages in excess of $45,000 and offered evidence in support thereof, we have appellate jurisdiction as the amount in dispute exceeds $7,500. Article V, Section 3, Constitution of Missouri 1945, V.A.M.S.
Plaintiff condemned the whole of defendants' property in connection with improvements being made upon U. S. Highway 66. The tract in question contained about 12 1/2 acres and was located in the town of Eureka, St. Louis County, Missouri, about 20 miles from the west limits of the City of St. Louis. It had a frontage of about 490' along the north side of Highway 66. The portion of the tract near the highway had been used in the operation of a restaurant-motel business. About 25 years ago eight buildings had been constructed thereon. On the highway level there was a sizeable restaurant building, a filling station building, and a two-room cottage. To the rear of these buildings (on a level 15 feet higher) were five other buildings divided into ten motel units. All of the buildings were modern and all but one had been constructed of stone that had been obtained from quarries located on the instant tract. The land to the rear of the motel cottages was very rough and was largely covered with brush and small trees. The main line of the 'Frisco' railroad ran along the eastern boundary of the tract.
The points raised upon this appeal do not require a detailed statement of the evidence relating to the value of the property. Defendants presented two experts in the field of appraising real estate, one of whom fixed the reasonable market value of the property at $45,830, and the other at $47,914. Plaintiff likewise offered two expert witnesses who fixed the value at $17,800 and $18,000 respectively.
Three of the points briefed by defendants do not relate to the issue of defendants' damages but challenge the validity of the condemnation proceedings. It is said that the trial court did not acquire jurisdiction to enter the 'Order of Condemnation' because (1) no evidence was presented to prove the allegations of the petition, (2) no proof was required as to the necessity of taking the part of defendants' land not actually to be occupied by the public improvement, and (3) plaintiff did not bargain in good faith with defendants as to the matter of compensation before filing the petition. We will consider those three contentions together.
At the outset of our consideration of the foregoing we note that defendants did not file any answer herein and hence the allegations in plaintiff's verified petition were not denied. Moreover, defendants filed no motion or other pleading (prior to the entry of the order of condemnation) raising any issue as to plaintiff's right to condemn. There was evidence to indicate that one of the defendants (an attorney) was present when the petition was considered by the court and mentioned that plaintiff ought to present evidence. After the court entered the order of condemnation and the commissioners had filed their report fixing the damages, defendants filed a motion to set aside the appointment of commissioners in which the jurisdiction and authority of the court in this case was attacked by various general allegations. That motion was subsequently overruled. It was stipulated that the aggregate amount awarded by the commissioners was paid into the registry of the circuit court by plaintiff on September 13, 1955, and that defendants thereafter received from the circuit clerk and receipted for the sum of $26,475, the amount of damages awarded to them.
It is apparent that the circuit court had jurisdiction of the subject matter and of the defendants. In the order of condemnation that court determined the questions relating to plaintiff's right to condemn the various tracts described in the petition. It is admitted that defendants have 'taken down' and accepted the money paid into court for their benefit in accordance with the award of the commissioners. In that situation defendants are now estopped to question any matter except questions arising in the trial of the issue relating to the amount of damages. Chicago Great Western R. Co. v. Kemper, 256 Mo. 279, 166 S.W. 291, 294. See also Kansas City Southern Ry. Co. v. Second Street Improvement Co., 256 Mo. 386, 166 S.W. 296. We will therefore give no further consideration to the foregoing contentions.
In the next point briefed the defendants have combined a number of contentions relating to alleged errors committed by the court in excluding evidence offered by them and in restricting their cross-examination of certain of plaintiff's witnesses. The first of those contentions related to the cross-examination of Victor S. Hallauer who had appraised the property for plaintiff. Defendants sought to show upon cross-examination of this witness that he had also appraised a building, similar in construction to theirs, located upon adjoining property (Lamar property) and that in the trial of the issue of damages concerning that property the witness used a lower rate of depreciation than he used in arriving at the value of the defendants' buildings. Defendants in their brief say that the court refused to permit them to examine the witness upon that matter. The transcript does not support that statement. It is true that the court at one time sustained an objection to...
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