State ex rel. State Highway Commission v. Chicago B. & Q. R. Co.
| Decision Date | 02 August 1976 |
| Docket Number | No. 27436,27436 |
| Citation | 539 S.W.2d 760 |
| Parties | STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY n/k/a Burlington Northern, Inc., an Illinois Corporation, et al., Respondents. |
| Court | Missouri Court of Appeals |
Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., Terry P. Thompson, Asst. Counsel, Missouri State Highway Commission, Kansas City, for appellant.
Charles S. Wilcox, St. Joseph, Wilcox & Houts, of counsel, St. Joseph, for respondent Union Terminal Railway Co.
R. A. Brown, St. Joseph, Brown, Douglas & Brown, St. Joseph, of counsel, for respondent Pioneer Materials Co., Inc.
Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.
This is a condemnation suit for a right of way for the construction of Interstate Highway 229, which will circle the west side of St. Joseph, Missouri, thence extending through Buchanan and Andrew counties.
Appellant's claim is that the trial court erred in 'holding in its order distributing the commissioners' award that the respondent Union Terminal Railway Company and the respondent Union Terminal Railway Company, Inc., owned a fee simple interest in part of Tract No. 707 and that the respondent Union Terminal Railway Company owned a fee simple interest in all of tracts 703, 719, 720, 721 and 722.' The basis for appellant's claim that the percentage of apportionment allotted by the trial court, which carries through to the jury trial on the exceptions to the commissioners' award as filed by the various parties is that it could preclude appellant from bringing before the jury possible title defects and their effect on valuation of the market value of the property 'if the determination of interests in the court's Order did actually decide the strength of the title of the respondents.'
The matter of whether appellant is an 'aggrieved' party with a right of appeal under § 512.020, RSMo 1969, must first be noticed. It claims that it is aggrieved by reason, as condemnor, of being made an interested party under the apportionment statute, § 523.053(1), RSMo 1969. It would appear that this statute is merely for the protection of the condemnor where a condemnee, after exceptions are filed, draws down the commissioners' award pending the final award as determined by the jury. It is highly doubtful that appellant is aggrieved by the court's order of apportionment in the sense that it has suffered a pecuniary loss as the result of the order. 'The condemnor is not concerned with the rights of rival claimants to the award because the fund deposited in court is substituted for the property taken in condemnation.' State ex rel. Highway Commission v. Paul, et al., 368 S.W.2d 419, 423 (Mo. banc 1963). Appellant has never claimed any interest or title to the property being condemned by it. '(O)rdinarily a judgment or decree which affects or determines rights in particular property does not aggrieve a party who has, or claims, no interest or title to the property, * * *.' Campbell Street Lumber Company v. Central Mortgage Co., et al., 436 S.W.2d 57, 60 (Mo.App.1968). Because of the importance of the question of the admissibility of evidence bearing upon the sole ownership of respondents as it may arise upon trial of the damage issues to a jury (i.e., the issues of whether any defects of title bear upon the evaluation of the fair market value of the property, this court (treating appellant as an aggrieved party only in the sense of its entitlement at a later trial to introduce evidence that respondents owned less than a fee simple, and treating the case in the nature of a declaratory judgment of the rights of the parties in that respect)) will examine the pleadings and evidence to ascertain if the trial court did in fact properly determine ownership to be in respondents as an incident to the apportionment order.
Appellant's order of publication of notice to the unknown heirs, grantees, successors and assigns of certain named defendants, other than respondents, is contained in 60 pages of the transcript. It is said that every conceivable person who might have had an interest in the property to be condemned was made a party. A rough count of the known and unknown persons, trustees, organizations and corporations named totals about 467. None of these persons appeared or asserted any interest in the property, by way of a reversion of a fee interest if all respondents had was an easement, or otherwise.
A guardian ad litem was appointed for all of the unknown heirs, and he filed answer to the petition in condemnation. Union Terminal filed separate answer, and by paragraph 7 thereof affirmatively stated 'that it is the owner of said property.' Pioneer Materials Company, Inc., filed no answer, but by motion it stated to the court that there were other defendants claiming an interest in the $407,457.00 commissioners' award for Tract No. 707, and asked that the court determine the percentages of the award to which each of the parties were entitled. The court set off $211,000.00 to Pioneer and $110,700.00 to Union of this award. As to Tract No. 703, Union moved that the entire $110.00 award be apportioned to it, alleging that no other defendants had any right, title or interest in the premises condemned. Union made the same motions as to Tract No. 719 ($4,084.00); Tract No. 720 ($3,034.00); Tract No. 721 ($27,084.00); and Tract No. 722 ($3,100.00).
Pioneer's evidence was that its $211,000.00 apportionment was largely for property owned by it separate and apart from any underlying real estate except for one parcel which it had acquired from Union by quit claim deed on June 8, 1973, for $7,200. The commissioners' award for this parcel was $7,700.00. Union presented as evidence deeds which it had received from the Chicago, Burlington and Quincy Railroad Company covering Tracts Nos. 703, 707, 719, 720 and part of 721, twenty-two tracts in all. There was no showing of how Burlington originally acquired its title. It is impossible to match the descriptions in the various deeds with the land described in appellant's petition, or on the plat of the area of highway construction introduced by the guardian ad litem as an exhibit. Since appellant does not question the statements about the deeds contained in respondents' brief, it must be assumed that they affect the land taken in condemnation. There are 21 exchange deeds, each reciting a consideration ranging from $50.00 to $500.00 between Union and Burlington. There is a quit claim deed from Burlington to Union dated February 29, 1912. On September 6, 1910, the ...
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