State ex rel. State Highway Com'n of Missouri v. Zehm Enterprises, Inc., 34

• Decision Date: 28 February 1983
• Docket Number: No. 12520,No. 34,D,34,12520
• Citation: 649 S.W.2d 495
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, ex rel., STATE HIGHWAY COMMISSION OF MISSOURI, (now Missouri Highway & Transportation Commission), Plaintiff-Appellant, v. ZEHM ENTERPRISES, INC., et al., Exceptions of Zehm Enterprises, Inc., Tractefendant-Respondent.

Page 495

649 S.W.2d 495

STATE of Missouri, ex rel., STATE HIGHWAY COMMISSION OF MISSOURI, (now Missouri Highway & Transportation Commission), Plaintiff-Appellant, v.ZEHM ENTERPRISES, INC., et al., Exceptions of Zehm Enterprises, Inc., Tract No. 34, Defendant-Respondent.

No. 12520.

Missouri Court of Appeals,

Southern District,

Division Three.

Feb. 28, 1983.

Motion for Rehearing and to Transfer

to Supreme Court Denied

March 25, 1983.

Application to Transfer Denied

May 31, 1983.

Bruce A. Ring, Rich Tiemeyer, Dennis J. Redel, Jefferson City, for plaintiff-appellant.

Clinton B. Roberts, Roberts, Roberts & Rohrer, Farmington, for defendant-respondent.

MAUS, Judge.

By this action the Missouri Highway and Transportation Commission(Commission) appropriated the right-of-way for a limited access highway across the northern part of a platted subdivision.At the time of the appropriation, all but 2 of the 71 platted lots were yet owned by the developer, Zehm Enterprises, Inc.(Zehm).The subdivision was located near the northern perimeter of the city of Poplar Bluff.The Commission appeals from an award of $254,000 to Zehm.

A sketch of the facts is sufficient background for an understanding of the Commission's points on appeal.In the latter part of 1976, Zehm bought four separately owned, but contiguous, tracts which comprise the subdivision.There was undisputed testimony that considered separately, each tract was too small for development as a subdivision.The size of the combined tracts was approximately 31 acres.All of the witnesses agreed the highest and best use of the real property was for a residential subdivision.

A plat of the area as such a subdivision was filed on September 20, 1978.Excluding the dedicated streets, the subdivision contained approximately 27 acres platted into 71 lots.The date of taking was December 23, 1978.At that time the subdivision had been improved by the grading and graveling of the streets, the drilling of a well to serve the subdivision, the installation of a substantial amount of water mains and pipes, and the installation of a small section of sewer main to be eventually incorporated into a community sewer system.Plans had been prepared for such a system.The subdivision was served by electricity and telephone service.Two lots, one with a completed house, had been sold.By the time of taking, on other lots Zehm had constructed two 6-room houses, had a similar house 85% completed, had excavated for two basements, and had poured a concrete slab.The only access to the subdivision was from the south.

The limited access right-of-way ran in an east-west direction across the northern part of the subdivision.There were approximately 2.72 "landlocked" acres north of the right-of-way.The right-of-way contained 6.9 acres.There were 16.5 acres owned by Zehm in the subdivision south of the right-of-way.It was generally conceded the appropriation substantially destroyed the value of the landlocked acres north of the right-of-way.There were 26 lots in the area north of and in the right-of-way itself.In addition, the appropriation included the northern fringes of seven other lots.Including the last mentioned lots, there were 43 lots left in the subdivision owned by Zehm at the time of the appropriation.The appropriation included the two completed houses, the house 85% complete, the two basement excavations and the concrete slab.Also included was a substantial amount of graded and improved streets.The opinions of the three expert witnesses presented by Zehm concerning the amount of damage to the property ranged from $284,000 to $363,300.Such opinions of the six expert witnesses called by the Commission ranged from $116,250 to $160,400.

The Commission's first point is that the trial court erred in denying the Commission's motion to strike the "valuation testimony" of Zehm's expert witnesses Hulsey and Holloway.Each of these witnesses considered the appropriation in practical effect included the property north of the right-of-way.They based their opinions upon the reasonable market value of the lots in the right-of-way and north thereof and the diminution in fair market value of the lots on the south that were partially included in the right-of-way.They did not value or consider any lots south of those included in or touched by the right-of-way.They stated these lots did not seem to be affected.

The Commission insists the failure to strike this valuation testimony is reversible error.It is true that in the event of a partial taking, the approved measure of damages is the difference between the fair market value of the whole property immediately before the taking and the fair market value of the remaining property immediately after the taking.MAI 9.02;State ex rel. State Hwy. Comm. v. Nickerson, 578 S.W.2d 916(Mo.banc 1979).The formulation of an opinion of damages upon the basis used by these witnesses is not to be encouraged and in certain circumstances can constitute error.4A Nichols on Eminent Domain, Comparison of BothRules, § 14.07(1981).However, it has long been recognized that an opinion upon such a basis may not be error."The same result may be reached in another way, by awarding the landowner the market value of the land actually taken, plus the consequential damage, if any, to the remainder of the land of which that taken formed a part, caused by the taking, ... less the special benefits, if any, accruing in consequence of the making of the improvement."State ex rel. State Highway Commission v. Kendrick, 383 S.W.2d 740, 745(Mo.1964).In this case there was no suggestion of special benefits accruing to the remaining property.These witnesses testified the appropriation did not affect the value of the property they did not consider.In these circumstances their opinions of damage were the difference between the fair market value of the whole property immediately before and the remaining property immediately after the taking expressed in a different way.State ex rel. State Highway Commission v. Bowling, 414 S.W.2d 551(Mo.banc 1967).It was not error to refuse to strike such testimony.State ex rel. State Highway Commission v. Kendrick, supra;State ex rel. State Highway Commission v. Bowling, supra;City of St. Louis v. Vasquez, 341 S.W.2d 839(Mo.1960).

The Commission's remaining two points are based...