State ex rel. State Highway Commission v. Drisko

• Decision Date: 03 May 1976
• Docket Number: No. KCD,KCD
• Citation: 537 S.W.2d 645
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Robert M. DRISKO and Mary Elizabeth Drisko, Appellants. 27087.
• Court: Missouri Court of Appeals

Page 645

537 S.W.2d 645

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v.Robert M. DRISKO and Mary Elizabeth Drisko, Appellants.

No. KCD 27087.

Missouri Court of Appeals, Kansas City District.

May 3, 1976.

Motion for Rehearing and/or Transfer Denied June 1, 1976.

Application to Transfer Denied July 12, 1976.

David R. Clevenger, Platte City, Dick H. Woods, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel, for appellants.

Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., John M. Cave II, Asst. Counsel, Missouri State Highway Commission, Kansas City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SHANGLER, Presiding Judge.

The plaintiffState Highway Commission condemned 13.53 acres of a 126.176 acre tract in Platte County owned by the defendants Drisko.The land lies on the west side of I--29 about one and one-half miles south of the entrance to the Kansas City International Airport.The Tiffany Springs Parkway interchange with I--29 now occupies that site.Also taken in condemnation were the rights of defendants to direct access between the interstate highway and the interchange, except for access made available to an outer road constructed by the Commission along the Drisko frontage.The land was taken on April 18, 1968, and was zoned for a planned industrial park.The jury returned damages of $67,650 and the defendants have appealed.

The opening statement of counsel for the Commission remarked:

It will be the state's evidence that after Interstate Highway 29 has been applied, all of the right-of-way was owned and the plans drawn and filed and that being the condition, that after that time the State Highway Department and at the request of the City and at the request of Doctor Drisko came along and put in an interchange at this point, taking as we said thirteen and a half acres to do so.

At the conclusion of this presentation, and after the court was adjourned for mid-day recess, the defendants made objection to these remarks and moved dismissal of the jury on the ground that the interchange was not placed at the request of the Driskos, and that the issue was in any event irrelevant to the proceedings.In the colloquy which ensued, counsel made their positions to the court: It was the contention of the Commission that the proposed proof--that the interchange was located as requested by the Driskos and connected with the limited access road to their property--conferred a special benefit upon that land and was proper evidence on damages.The defendants contend there was neither proof of such a request nor would such be evidence of a special benefit.

The trial court refused the motion to discharge the jury, but disallowed further reference to the matter in the absence of proof that the Commission and the Driskos had agreed to the placement of the interchange.

The trial commenced, and in the course, the Commission offered to prove by District Engineer Satterless that to promote the development of Tiffany Springs the City of Kansas City had agreed (in September of 1966) with the Commission to pay the entire cost of a full diamond interchange on I--29 on condition that the State condemn the land and construct the improvement; that the original plans for I--29 were changed (in January of 1967) to include the interchange, and that the right of way for the Tiffany Springs Parkway--which passed through the Drisko land and connected with the interchange--was conveyed (in December of 1970) by deed of gift to the City by the defendants.This evidence, the Commission contended to the trial court, allowed the inference that the Driskos sought for the location of the interchange on their property and was for the jury.The defendants argued that the Satterlee evidence was not probative of such a request by them and, if allowed to the jury, would only raise the false inference that the defendants considered the placement a benefit to their remaining property.

The offer of proof was denied by the court.

On this appeal the defendants contend that although the evidence of request was not received, the opening statement which made reference to a proposed proof the court later excluded left the jury with the impression that the defendants expected substantial benefits to their remaining property from the location of the interchange.It was a false issue, they say, which could only be dispelled by a mistrial, and now by the order of a new trial.

The rule obtains, as the parties agree, that where the active conduct of a landowner secures the location of a public roadway through his property, an inference arises that he expected substantial benefits to accrue to his remaining property.State ex rel. State Highway Commission v. Shain, 340 Mo. 802, 102 S.W.2d 666, 669(3, 4)(1937).We need not determine whether, as a matter of law, the evidence of the contracts between the Commission and City concerning the highway improvements in Tiffany Springs, the construction of the interchange to link with the access road installed by the Commission along the Drisko frontage, and the conveyance by gift from the defendants to the City are probative of a request by the Driskos for the placement of the interchange.We have concluded, rather, that the trial court did not commit prejudicial error by the refusal to grant a mistrial.

The power to grant or withhold a mistrial is committed to the sound discretion of the trial court.It is an exercise which will not be...