State ex rel. State Highway Commission v. Wertz

• Decision Date: 10 April 1972
• Docket Number: No. 55889,No. 1,55889,1
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent-Plaintiff, v. Wesley WERTZ et al., On Exceptions of Ken Bender Buick Pontiac, Inc., a Corporation, et al., Appellants-Defendants
• Court: Missouri Supreme Court

Page 670

478 S.W.2d 670

STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent-Plaintiff, v. Wesley WERTZ et al., On Exceptions of Ken Bender Buick

Pontiac, Inc., a Corporation, et al., Appellants-Defendants.

No. 55889.

Supreme Court of Missouri, Division No. 1.

April 10, 1972.

Robert L. Hyder, Jefferson City, Paul R. Ferber, Kirkwood, for respondent-plaintiff.

Richard Marx, Blumenfeld, Kalishman, Marx & Tureen, St. Louis, for appellants-defendants.

BARDGETT, Judge.

In this action for condemnation of land for State Highway purposes the jury award of compensation to Ken Bender Buick Pontiac, Inc., and other nominal parties was $17,600.00. The sum of $20,000.00 had previously been paid into court by the Highway Commission on July 3, 1968, pursuant to an award in that sum made by the court-appointed commissioners, to which both the Highway Commission and Ken Bender took exceptions and the case was tried on both exceptions. The judgment of the court ordered defendants, Ken Bender et al., to repay to the state the sum of $2,400.00 plus interest thereon from July 17, 1968, the date said $20,000.00 was withdrawn from the court by Ken Bender et al. The difference between the jury award and the amount appellant Ken Bender et al. claims to be entitled to under appellant's evidence exceeds $15,000.00. The appeal having been taken on June 26, 1970, jurisdiction is in this court. Mo.Const. 1945, Art. V, § 3, as amended, V.A.M.S.; § 477.040, RSMo 1969, V.A.M.S.

Appellant contends the trial court erred in excluding evidence of alleged comparable sales, which sales were made after the date of taking, and in excluding value testimony of one of appellant's appraisers, Zerr, on the grounds that the method used by Zerr in arriving at his value figures was improper.

The State Highway Commission (hereafter Commission) instituted this suit in St. Charles County on Dec. 8, 1967, to condemn certain parcels of land for the widening of First Capitol Drive (Highway 94) in the City of St. Charles, Mo. The appellant's property is located on the northwest corner of Highway 94 and Interstate 70. The date of taking was July 3, 1968. Prior to the taking, appellant's tract consisted of 6.1 acres, and was reduced to 5.46 acres by the taking of 54/100 of one acre--approximately 1/2 acre.

Appellant Bender acquired the property in February 1964, and established an automobile dealership on it, occupying it in Sept. 1964. The property was located about 20 to 25 feet below the level of Rt. 94. The purchase price for the acreage in 1964 was $46,000.00. The portion taken was a strip fronting principally on Rt. 94, roughly rectangular in shape, beginning at I--70 and running generally north along Rt. 94.

Appellant called Dave J. Auchly to testify to an alleged comparable sale. The sale involved two adjacent parcels of property which, together, extended 140 feet along Rt. 94 and were from 153 to 164 feet deep and were located directly across from the appellant's driveway. A portion of the direct examination of Mr. Auchly is as follows:

'Q. What was the date of that sale, Mr. Auchly? A. The date of the sale was March 27, 1969.

'Q. And for the 140 feet by somewhere between 153 and 164 plus, what was the sales price?

MR. FERBER: Just a minute. May we approach the Bench, Your Honor?

THE COURT: Yes sir.

OUT OF THE HEARING OF THE JURY:

THE COURT: Proceed, Mr. Ferber.

MR. FERBER: Your Honor, at this time I would object to any testimony concerning the sale price of this alleged comparable piece of property for two reasons: Number 1: It is smaller in size than the subject property and, secondly: The sale of this alleged comparable took place some eight or nine months after the taking of the subject property, and, accordingly, is incompetent, irrelevant and immaterial. It would reflect an enhancement in value as a result of the improvements that took place on Highway 94 in this condemnation suit.

MR. MARX: It is up to the State to show potential benefits that might have accrued. The courts have let in after sales when they are not too far removed.

THE COURT: Off the record, Mr. Wellington.

(Colloquy between Court and counsel)

THE COURT: The objection will be sustained.

MR. MARX: I am going to make a proffer: Had this witness been permitted to answer the question he would have testified that the sales price of the 140 feet was $85,000.00 in March, 1969.

THE COURT: Proffer denied.'

Subsequently respondent, Commission, called a Mr. Bruce Campbell as a witness to testify to an alleged comparable sale of a ten-acre tract having a 450 foot frontage on Rt. 94 and located a short distance to the north of the Bender tract. The witness testified that his organization purchased the ten-acre tract in 1964 for $100,000.00. On cross-examination by appellant's attorney the witness testified that he sold off approximately one-half acre in the summer of 1969. The following then occurred at the bench and out of the hearing of the jury.

'THE COURT: Go ahead, Mr. Ferber.

MR. FERBER: Your Honor, I would object to any interrogation concerning the sale price of the portion mentioned here to the Pass Car Wash for the reason that the sale took place at least a year after the taking and, also, is not comparable to the subject property in size.

MR. MARX: The defendants' position is that they brought in this comparable--the same size and right next door.

THE COURT: The objection will be sustained.

MR. MARX: I would like to make a proffer that if this witness were permitted to answer the question he would testify that the one-half acre sold for $50,000.00 and counsel for the plaintiff stipulated that the one half acre fronted on Highway 94.

THE COURT: The proffer will be denied.'

It is the position of appellant that respondent's objection to the testimony of Mr. Auchly and Mr. Ferber was sustained on the ground that the sale occurred after the date of taking and not on any other grounds. In oral argument respondent agreed that the objection was not ruled on the basis that the tracts involved in the after taking sales were not of comparable size to the total Bender tract of 6.1 acres but asserts that the objection was properly sustained on the basis that the after taking sales were of property located on the improvement, that is on Highway 94, and therefore the court was correct in sustaining the objections as, respondent says, the value placed on the property would represent increase in value due to the improvement itself and that appellant is not entitled to compensation for the property taken which represents such increments. Respondent stated that the objection was sustained because the sales occurred after the date of taking but also contends, as stated above, that an additional reason for sustaining the objections was that the property had increased in value due to the improvements which was the purpose of the condemnation. The objection made to the Auchly testimony did include the assertion that 'It would reflect an enhancement in value as a result of the improvmeents that took place on Highway 94 in this condemnation suit.' The objection to the Campbell testimony was, other than noncomparability in size which the stipulation in oral argument and our review of the record demonstrate was not the basis for the ruling, merely asserted that the Campbell testimony concerned an after taking sale. There is no evidence in the record from which it could be determined that the improvement had taken place by the time of either of these sales nor was there any evidence that the road improvement had an effect upon property values on or near Highway 94.

It is evident from the record that the only reason for sustaining the objections to the Auchly and Campbell testimony was that the two sales referred to by these witnesses took place after the date of taking--one being eight or nine months later and the other bieng about one year later. In short, the trial court ruled that as a matter of law sales of comparable property which took place after the date of taking are not admissible because they took place after the date of taking.

Both parties advise that their research had not revealed that this court ha spreviously had not revealed that this court has previously do so now.

This court has stated that: 'The general rule is that evidence of the sale price of property similarly located to that involved, and made in the neighborhood reasonably near the time of taking, is admissible to aid the triers of fact in determining the compensation to which the owner is entitled for the taking of the property.' State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654, l.c. 662; Union Electric Co. v. Menkhaus, Mo.App., 370 S.W.2d 619.

In City of St. Louis v. Vasquez, Mo., 341 S.W.2d 83., the City of St. Louis ahd condemned S.W.2d 839, the City of St. Louis had condemned Air Field owned by St. Louis. The date of taking was Feb. 21, 1957. The trial court allowed into evidence testimony with reference to three sales; one in August 1955 for $4,500.00 per acre; one on December 20, 1956, for $13,000.00 per acre; and one on March 20, 1957, for $13,000.00 per acre. The last sale took place after the date of taking. The question of whether the after-the-taking sale was admissible was not an issue on appeal. When the appellant, City of St. Louis, sought to prove the 1955 sale, counsel for respondent objected on the ground of remoteness, contending that the latter two were the 'most comparable' sales. The court overruled the objection and admitted the evidence of the 1955 sale. This court said, l.c. 845: 'Under these circumstances the jury could not reasonably have interpreted 'sales and prices most recently obtained' to exclude the 1955 sale and include only the 1956 and 1957 sales.' It appears that this court has therefore given some recognition to the probative value of after taking sales.

Subsequently this court decided the case of State ex rel. State Highway Commission v....