State ex rel. State Highway Commission v. Warner

• Decision Date: 10 October 1962
• Docket Number: No. 8062,8062
• Citation: State ex rel. State Highway Commission v. Warner, 361 S.W.2d 159 (Mo. App. 1962)
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator-Appellant, v. Gerald WARNER and Lorene Warner, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 159

361 S.W.2d 159

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator-Appellant, v.Gerald WARNER and Lorene Warner, Defendants-Respondents.

No. 8062.

Springfield Court of Appeals, Missouri.

Oct. 10, 1962.

Robert L. Hyder, Melvin Englehart, Jefferson City, for relator-appellant.

Almon H. Maus, Monett, for defendants-respondents.

STONE, Judge.

In this proceeding by the Missouri State Highway Commission(hereinafter referred to as the Commission) to condemn additional right of way for Route HH in Barry County, the commissioners awarded no damages to defendants, Gerald Warner and Lorene Warner, for appropriation of the right of way through their 160-acre farm; but, upon trial of their exceptions in circuit court, defendants obtained a jury verdict for $2,500.From the judgment entered thereon, the Commission has perfected this appeal.

Route HH follows the course of a previously-existing 'state-maintained' road and runs in a general easterly-and-westerly direction from Highway 37 for a distance of 5.389 miles to the west.Defendants' farm, on which they have resided since 1940, is comprised of two rectangular 80-acre tracts, one of which lies lengthwise east-and-west on the south side of Route HH with a frontage of one-half mile on that road, and the other of which lies north-and-south on the north side of Route HH with a frontage of one-quarter mile on that road.Defendants' five-room, modern flagstone home with two enclosed porches, their 40' X 58' barn, and all of their outbuildings (including a two-car garage, elevated milking parlor, chicken house, well house and machine shed) are on the south side of the road.In this proceeding, the right of way of Route HH was widened from 30 feet to a minimum of 70 feet and a maximum of 90 feet.On the north side of the old right of way, a strip only 10 feet in width was taken; but, on the south side, the appropriated strip (hereinafter referred to as the south strip) was 30 feet in width for three-eighths mile and 40 feet in width for one-eighth mile in front of the east end of defendants' 80-acre tract on that side of the road.The total area taken from defendants was computed at 2.052 acres.The segment of road designated as Route HH, which has been widened and improved as a result of this proceeding, terminates at the west line of defendants' farm.

Defendants' primary use of their land is as a dairy farm, although they also 'feed out' about 200 hogs each year.With the exception of 6 acres in timber (of which 4 acres are just west of the house and 2 acres are 'back on the other end'), their farm is in permanent pasture.They usually raise all of the hay needed for their herd of about 48 cows and heifers and also have some hay for sale.The soil is described as loam, and the contour of the land is said to be 'slightly rolling.'The field east of defendants' home and on the south side of Route HH gently slopes and drains from the east and west sides of the field into a north-and-south depression or draw near the center of the field which, in turn, drains to the north and thus toward Route HH.Prior to the appropriation, defendants had constructed an east-and-west 'rock dam' or 'fill' across this draw just south of the south right-of-way line of Route HH.Witnesses estimated its height in the bottom of the draw at 3 to 4 feet and its length, east and west, at 'over 100 feet' or '175 or possibly 200 feet.'Whatever its dimensions may have been, 'it took approximately 100 loads of rock.'The purpose of the rock fill was to slow down and back up the water draining into and running north in the draw, so that the soil would not wash and erode.Defendants' evidence was to the effect that they'had to have it (the rock fill) there' and that it had served its intended purpose well.This rock fill was on the south strip and was removed when Route HH was widened and improved.Of the consequences of such removal, more anon.

Another item of alleged damage was the loss of a portion of the timbered tract west of defendants' home.By amendment of the petition, shade trees in the south strip in front of the home were 'reserved to the defendants and will be left in place,' but there was no such reservation with respect to trees in the south strip west of the house.The Commission's evidence was to the effect that the appropriated trees in the south strip were few in number ('18 or 20 at the most'), that they'looked * * * more like brush or bushes than trees' and were relatively small in size ('maybe 2 inches' but certainly not 'as large as 3 inches in diameter'), and that they had no value as 'merchantable timber.'In sharp contrast, defendants' evidence was to the effect that the appropriated trees in the south strip were 117 in number, that they were not 'scrub oak' but were big oak trees 'from 12 to 16 inches in diameter,' and that they were valuable not only for their potential worth as 'merchantable timber' but also as 'a good windbreak' for defendants' home and their cattle.

Defendants' land was fenced on both sides of Route HH prior to the appropriation, so widening of the road required the removal and relocation of one-half mile of fence on the south side and one-quarter mile on the north side and resulted in expenses (itemized by defendants) in the aggregate sum of $397.03.Also, the south line of the south strip 'went right through the middle' of 'a good pond' in the timbered area west of defendants' home, and the road improvement project drained the pond and destroyed its utility.That, by reason of appropriation of the south strip, the distance from the front of defendants' home to the south right-of-way line of Route HH had been reduced from 60 feet to 30 feet was another factor which, so defendants' witnesses said, adversely affected the market value of defendants' farm.

Although counsel examined and cross-examined concerning the practical importance and the monetary impact of the foregoing factors, each witness (qualified in this testimonial area) properly was interrogated as to his opinion of the reasonable market value of defendants' farm, considered as a whole, immediately before and immediately after the condemnation, and the jury properly was instructed that the measure of defendants' damages was the difference in such reasonable market value.State ex rel. State Highway Com'n. v. Leftwich, Mo.App., 263 S.W.2d 742, 747(7);State ex rel. State Highway Com'n. v. Huddleston, Mo.App., 52 S.W.2d 33, 35(6).As is usually the case, the triers of the facts were offered a motley, incongruous assortment of views and values.Three witnesses for the Commission thought that the reasonable market value of defendants' farm was higher (by $3,500, $2,000 and $2,000, respectively) after the condemnation and thus that defendants had been benefited, rather than damaged, by the road improvement project.On the other hand, defendants' witnesses testified that the market value of the farm was lower after the condemnation, the resulting decrease in valuation being fixed at $3,000 by defendantGerald Warner, at $2,850 and $2,700, respectively, by two licensed real estate salesmen, and at $2,460 and $2,200, respectively, by two farmer-stockmen.So, the verdict was within the range of the opinion testimony and found adequate support in the evidence.Cf.Empire Dist. Elec. Co. v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78, 83-84.

The primary point in the Commission's brief is that 'the court erred in the admission of evidence of damages arising from erosion and loss of timber,' under which it is said in subpoint A that 'evidence of erosion to the land of the defendants that would result in the future was not based on facts and was mere guess and conjecture' and in subpoint B that 'all of the testimony relating to the damages resulting from the loss of timber * * * was conjectural and guesswork and not based on the best evidence ascertainable.'Many years ago our Supreme Court, in the oftcited case of School Dist. of Kansas City v. Phoenix Land & Improvement Co., 297 Mo. 332, 344, 249 S.W. 51, 54(7), admonished the appellant in a condemnation proceeding that, if 'it desired to have the ruling of the (trial) court in regard to the admission or rejection of (evidence) reviewed here, it should have set out the names of the witnesses, and at least the substance of the testimony improperly admitted, of which complaint is made, and giving the page of the record where found.'Certainly, V.A. M.R. Rule 83.05, subd. (a)(3), which plainly provides that '(t)he points relied on * * * shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous,' contemplates particularization in 'points relied on'[Guidicy v. Guidicy, 361 Mo. 1127, 238 S.W.2d 380, 383(1);State at inf. of Dalton ex rel. Erwin v. Taylor, Mo.App., 293 S.W.2d 12, 19(5);Oertel v. John D. Streett & Co., Mo.App., 285 S.W.2d 87, 98(8)], and the requirements of the rule are not satisfied by discussion and references in the 'argument'[Nibler v. Coltrane, Mo., 275 S.W.2d 270, 274(5);State ex rel. State Highway Com'n. v. Harrison, Mo.App., 311 S.W.2d 104, 108(4)], for an appellate court has no duty to seine through the entire brief in an effort to ascertain the points on which an appellant depends.Sides v. Contemporary Homes, Mo.App., 311 S.W.2d 117, 122;Beeler v. Board of Adjustment of City of Joplin, Mo.App., 298 S.W.2d 481, 483(2).

The salutary purpose of, and the urgent need for, substantial compliance with the requirements of the rule are nowhere better illustrated than in the case at hand, where six witnesses testified concerning 'damages arising from erosion'(i. e., concerning the effect of appropriation and removal of the rock fill) and five witnesses testified concerning 'damages arising from loss of timber,' and where most of the testimony on those subjects was received either without any objection or over purported objections...