State ex rel. State Highway Commission v. Galloway

Decision Date03 July 1956
Docket NumberNo. 7466,7466
Citation292 S.W.2d 904
PartiesSTATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Calvin C. GALLOWAY et al., Jessie Rose Donica and Grover C. Donica, Respondents.
CourtMissouri Court of Appeals

Robert L. Hyder, Minor C. Livesay, Jefferson City, for appellant.

Miller, Fairman & Sanford, Springfield, for respondents.

McDOWELL, Presiding Judge.

Action in condemnation. Relator appeals from a judgment of the trial court on respondents' motion for statutory interest on $7,890 damages awarded by the commissioners from the date of the filing of their report, June 20, 1951, to April 20, 1954, the date the award was paid into court, and, for interest on $2,110 excess damages recovered by respondents in the trial of exceptions to the commissioners' report, from April 20, 1954, to January 20, 1955, date relator paid same into court.

The agreed statement of facts shows that the State Highway Commission, appellant, filed a petition in condemnation in the Circuit Court of Greene County, Missouri, May 15, 1951, to condemn land of respondents lying south of highway 166 west of Springfield, for the purpose of erecting an overpass at the junction of the By-pass connecting Highways 66 and 166; that commissioners were appointed by the court June 9, 1951, to view the property and assess the damages sustained by respondents for such appropriation. The commissioners filed their report with the court June 20, 1951, assessing respondents' damages in the sum of $7,890, and, thereafter on June 26, 1951, relator filed exceptions to the commissioners' report.

On April 20, 1954, appellant, in compliance with the judgment of the court entered June 9, 1951, paid to the clerk of the court $7,890 and took possession of the land.

Appellant's exceptions to the report of the commissioners were tried by jury and a verdict rendered on December 1, 1954, in favor of respondents for damages in the sum of $10,000 on which judgment was entered. Appellant paid into court $2,110 January 22, 1955, being the excess damages awarded in the trial of exceptions. Respondents have not accepted this payment, however, they did accept the $7,890, amount of commissioners' award, paid into court April 20, 1954.

February 8, 1955, respondents filed a motion in said cause asking the court to direct payment of statutory interest on the judgment rendered in the condemnation action from the date of the filing of the commissioners' award June 20, 1951, until the date said amount was paid into court by appellant in the total sum of $1,794.95. This motion was heard by the court June 14, 1955, resulting in a decree in favor of respondents for six per cent interest on $7,890 from June 20, 1951, the date of the filing of the commissioners' report to April 20, 1954, date possession of the land was taken by appellant and the commissioners' award paid into court for respondents, in the amount of $1,341.30, and interest at six per cent on the additional sum of $2,110 awarded by the jury in excess of the award of commissioners from June 20, 1951, to January 20, 1955, date said sum was paid into court, in the sum of $453.65, making a total decree of $1,794.95. From this judgment relator appealed.

Appellant assigns as grounds for reversal of the trial court's judgment:

1. That the court below was without authority to amend the verdict of the jury to include the interest as herein set out.

2. That there was no final judgment in the condemnation case prior to the verdict of the jury after the trial of the issues and therefore no interest due.

3. That respondents are not entitled to the award of the commissioners until they are deprived of the title to their land and possession thereof.

4. That the acceptance by respondents of the amount of the commissioners' award as full satisfaction of their claim precludes them from afterwards claiming interest on the amount of the award.

Respondents contend that there is nothing before the appellate court for review for the reason that appellant did not call attention of the trial court to any allegations of error in making the award. That no motion for new trial directing the trial court's attention to the alleged errors was filed.

To sustain this contention Supreme Court Rule 3.23, 42 V.A.M.S., and Section 510.330 RSMo 1949, V.A.M.S., are cited and other authorities.

Supreme Court Rule 3.23 provides that in order to preserve allegations of error for appellate review such errors must first be presented to the trial court in motion for a new trial.

There are three exceptions, however, to this rule. First, where the trial court has no jurisdiction of the subject matters; second, where the petition fails to state a claim; and, third, where the evidence is insufficient to support the judgment.

There are two reasons for ruling against respondents on this contention. First, it is contended that the trial court did not have jurisdiction of the subject matter and, secondly, we find that the motion is an after-trial motion.

Under Supreme Court Rule 3.24, after-trial motions are treated the same as motions for new trial, if timely filed. Therefore, when the trial court ruled upon this motion it had the effect of sustaining a motion for new trial and a final judgment.

Appellant first contends that the trial court was without authority to enter the judgment appealed from.

The power of eminent domain is inherent in sovereignty and exists in a sovereign state without any recognition thereof in the constitution. Board of Regents for Northeast Mo. State Teachers College v. Palmer, 356 Mo. 946, 204 S.W.2d 291, 293; 18 Am.Jur. Secs. 7-8, pp. 635, 637. The constitutional provisions relating to the subject are the limitations upon the power. Southern Illinois & Missouri Bridge Co. v. Stone, 174 Mo. 1, 22, 73 S.W. 453, 63 L.R.A. 301. The right to exercise the power or to authorize its exercise is wholly a legislative function. State ex rel. State Highway Comm. of Missouri v. Gordon, 327 Mo. 160, 163, 36 S.W.2d 105, 106.

In State ex rel. State Highway Commission v. James, 356 Mo. 1161, 205 S.W.2d 534, 535, the law is stated:

'* * * The constitution does not grant the power of eminent domain. The power is inherent in sovereignty, * * *. The constitution limits the power and the manner of its exercise in certain respects. * * * Constitutional provisions which limit or restrict the power of eminent domain are, of course, self enforcing. Provisions defining the purposes for which condemnation may be had are not self enforcing in the sense that they may be enforced by courts except to the extent and in the manner provided by statute. * * * All that is necessary is that there be in force, at the time the particular interest in property is sought to be condemned, a constitutional provision or statute broad enough to authorize the condemnation of such interest and a statute to provide a reasonable method to determine just compensation therefor. ' (Emphasis ours.) State ex rel. Lane v. Pankey, 359 Mo. 118, 221 S.W.2d 195, 196.

The power of eminent domain and, in the instant case, the power to condemn property for the construction and maintenance of state highways, is expressly given to the State Highway Commission by Section 227.120 RSMo 1949, V.A.M.S. This section provides that if condemnation becomes necessary, the proceeding shall be in accordance with the provisions of Chapter 523 RSMo 1949, V.A.M.S.

Under Chapter 523, RSMo 1949, V.A.M.S., the legislature has provided special provisions governing condemnation proceedings.

Section 523.010 provides: That upon the filing of the petition in condemnation the court shall appoint three disinterested freeholders, as commissioners, or a jury, to assess the damages which owners of the land being condemned may severally sustain.

Section 523.040 provides: That the commissioners so appointed by the court 'after having viewed the property, shall forthwith return to the clerk of such court, under oath, their report in duplicate, of such assessment of damages, setting forth the amount of damages allowed to the person or persons named as owning or claiming the tract of land condemned.' It provides further that 'the clerk shall file one copy of said report in his office and record the same in the order book of the court, and he shall deliver the other copy, duly certified by him, to the recorder of deeds of the county', as provided in section 59.440 R.S.Mo 1949. It provides that the condemner shall pay such damages to said clerk and upon making such payment it shall be lawful for the condemner to hold the interest in the property appropriated and upon failure to pay such assessment the court may upon notice by the party entitled to the damages, enforce the payment by execution, unless condemner shall within ten days from the filing of the report elect to abandon the property.

Section 523.050 provides for the filing of exceptions to the commissioners' award and having a new appraisement made by jury.

So, at the time the Highway Commission sought to condemn the interest in the lands of respondents, in the instant case, there were constitutional provisions and statutory authority broad enough to authorize the taking of such interest and broad enough to provide a reasonable method to determine just compensation therefor.

One of the questions necessary to decide, in determining whether or not the court had power to render the judgment in the instant case, is, were respondents entitled to interest on the commissioners' award of $7,890 from the date of the return, to-wit, June 20, 1951, to the date that that amount was paid into court for the use and benefit of respondents, to-wit, April 20, 1954?

It is contended by respondents that the judgment of the trial court allowing statutory interest was necessary to meet the constitutional requirement of 'just compensation'.

In other words, it is contended by respondents that the date of the taking was the date of...

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