State ex rel. State Highway Commission v. Kendrick, 50704
| Decision Date | 09 November 1964 |
| Docket Number | No. 50704,No. 1,50704,1 |
| Citation | 383 S.W.2d 740 |
| Parties | STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Gertrude R. KENDRICK et al., on Exceptions of Olive M. Gutweiler, Respondent |
| Court | Missouri Supreme Court |
Robert L. Hyder, Melvin Englehart, Jefferson City, for appellant.
Richard A. Hetlage, Robert O. Hetlage, St. Louis, for respondent.
HOUSER, Commissioner.
State Highway Commission, in the course of the construction of Mark Twain Expressway in St. Louis County, brought proceedings in the circuit court of that county to condemn a tract of 11 acres, 1 part of a larger tract of 56 acres 1 owned by Olive M. Gutweiler. The 56-acre tract lay immediately west of Lambert-St. Louis Municipal Airport. The north boundary line of the 56-acre tract abutted the south line of Natural Bridge Road. The 11-acre tract lay at the rear or south side of the 56-acre tract. The 11-acre tract did not connect with any public street or highway. It was landlocked and had no means of ingress or egress except through that portion of the 56-acre tract lying north of the 11 acres. The petition in condemnation was filed April 2. Commissioners, appointed June 13, filed their report October 25, awarding defendant $17,500 damages. The highway commission deposited $17,500 in the registry of the court November 26. All of this occurred in 1956. The parties accepted November 26, 1956 as the valuation date. Both condemnor and the landowner filed exceptions to the report of the commissioners. The case was tried to the court, sitting without a jury. The court filed its findings of fact and conclusions of law, assessed defendant's damages at $27,924 and entered judgment for defendant for $10,424 (the difference between the court's assessment and the amount previously deposited in the registry of the court), plus 6% interest on $10,424 from November 26, 1956.
The commission gave notice of appeal 'from the Order entered in this action on the 13th day of March, 1964,' which was the order overruling its motion for new trial. A motion for a new trial is not an appealable order. The appeal should have been taken from the judgment of December 19, 1963 and not from the order overruling the motion for new trial. Supreme Court Rule 82.04, V.A.M.R. Instead of dismissing the appeal, however, we will consider that the commission intended and in good faith attempted to appeal from a final judgment and that the notice of appeal inadvertently designated the order overruling the motion for new trial instead of the judgment of the court, as the order from which the appeal was intended to be taken, and it will be so treated. Triller v. Hellwege, No.Sup., 374 S.W.2d 104.
We have appellate jurisdiction because the record affirmatively shows that the amount in dispute is more than $15,000 in excess of the $10,500 or $11,000 to which the commission's evidence indicates that the landowner is entitled. Constitution, Art. V, Sec. 3, V.A.M.S., State ex rel. Chariton River Drainage District v. Montgomery, Mo.Sup., 275 S.W.2d 283.
Prior to these highway condemnation proceedings and in the year 1953 the City of St. Louis, desiring to acquire land to be used as a part of Lambert-St. Louis Municipal Airport, brought proceedings to condemn 45 acres 1 of Olive M. Gutweiler's 56-acre tract,--the north 45 acres abutting on and lying nearest Natural Bridge Road. This 45-acre tract, however, had not been taken and appropriated by the city prior to the time of the taking of the 11-acre tract. The proprietary rights of Olive M. Gutweiler in the 45-acre tract could not under the Constitution of Missouri, 1945, Art. I, Sec. 26, have been divested until the award of the commissioners had been paid to her, or paid into court for her. While the Commissioners' report in the city condemnation proceedings had been filed in 1954 the amount of the commissioners' award ($101,500) had not been paid into court on November 26, 1956, and was not paid into court until December 3, 1956,--seven days after the commissioners' award was paid into court in the highway condemnation proceedings. See City of St. Louis v. Kisling, Mo.Sup., 318 S.W.2d 221. Therefore, on the valuation date, November 26, 1956, Olive M. Gutweiler was the owner of and enjoyed the full proprietary rights in entire 56-acre tract.
In presenting its evidence of land value the commission's expert witnesses appraised the 11-acre tract separately and apart from the whole tract of 56 acres. They did not do a valuation of the entire 56-acre tract before the taking and compare it with the value of the land remaining after the taking, but appraised the 11 acres as a separate tract, 'as a separate piece' with no access to any road. They did not consider damages to the remaining 45 acres, or that the value of the 11-acre tract may have been affected by the fact that defendant owned 45 acres north of the 11-acre tract. They did not think the ownership of the 45 acres abutting Natural Bridge Road on the north and abutting the 11-acre tract on the south increased the value of the latter, because of the cost factor of building a road or access from Natural Bridge Road to the 11-acre tract, which they testified would exceed any increase in value of the 11-acre tract arising out of the fact that it would have access to the road. The commission's expert witnesses considered that the highest and best use of the 11-acre tract was for park purposes and that its reasonable market value on the valuation date was $10,500 or $11,000.
Defendant's expert witness Feinberg valued the 11-acre tract as a part of the 56-acre tract taken in its entirety, stating that the highest and best use of the 11-acre tract on the valuation date was for commercial purposes, and assigning to the 11-acre tract a reasonable market value of $6,500 an acre, or $71,000 to $71,500. Defendant's expert witness Smith likewise appraised the 11-acre tract as a part of the whole tract, considering the value of the entire 56-acre tract before the taking of the 11-acre tract and the value of the remaining land after the taking. He estimated the value of the 56 acres on the valuation date at $280,000; the value of the 45 acres left after the taking at $225,000, and thus fixed the value of the 11-acre tract at $55,000.
For its first point the commission urges that the trial court committed reversible error and we are urged to remand the cause for a new trial because it is said that the only evidence considered by the trial court was that given by the witnesses for the defendant and that the trial court refused to consider the evidence of value presented by the commission. This contention is based upon Finding of Fact No. 7 in which the court concluded that 'the proper evidence to consider is only that evidence given by witnesses who appraised said property on behalf of defendant Gutweiler.' From this the commission draws the conclusion that the court 'refused to consider' the testimony of its witnesses; cites cases for the general proposition that all evidence of value which an ordinarily prudent person would take into account in determining fair market value should be considered by the court, and urges that as a result of the court's failure to consider its evidence the commission's rights were prejudiced in several different ways.
The trial court did not arbitrarily or erroneously ignore, fail or refuse to consider the commission's expert testimony. On the contrary the record expressly shows that the court did consider it. Finding of Fact No. 6 follows: 'That Relator's witnesses assigned a fair market value as of the date of taking the acre tract of $10,500.00 and $11,000.00, but valued same as an isolated tract without access and not as a part of the whole acre tract owned by defendant Olive M. Gutweiler as said appraisers for the State Highway Commission testified that the other property owned by Gutweiler had heretofore been condemned by the City of St. Louis * * *.' The court declared the rule of damages to be the difference in the fair market value of defendant's whole tract immediately before and immediately after the appropriation of the 11 acres and stated as its reason for relying upon the defendant's expert witnesses in determining value, rather than the commission's experts, that on the valuation date the city had not yet taken the 45-acre tract; that the city's condemnation proceedings against the 45-acre tract 'could have been abandoned by the City of St. Louis at any time up to the payment into court'; that therefore the rule of damages above stated (the rule to which the testimony of defendant's witnesses was geared) should be adhered to and the land taken should not be valued as the commission's witnesses valued it, that is, as an isolated 11-acre tract. Clearly the court considered but for stated reasons rejected the value testimony given by the commission's witnesses. Under the evidence the court not only had a right but also the duty so to do. Property taken for public use is to be valued at its highest and best use. Where the part taken from a larger tract of land is of greater value as a part of the whole tract than as a separate parcel, the part taken Nichols on Eminent Domain, 3rd Ed., Vol. 4, Sec. 14.231, pp. 544-545.
The fair market value of the 11 acres as an isolated, landlocked tract would obviously be less than its value at a part of the whole 56-acre tract with its more than 1,000 feet of frontage on the...
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