State ex rel. State Highway Commission v. Moore, KCD

• Decision Date: 01 May 1978
• Docket Number: No. KCD,KCD
• Citation: State ex rel. State Highway Commission v. Moore, 565 S.W.2d 810 (Mo. App. 1978)
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Appellant, v. Wilson MOORE et al., Harrison Dale Hooker, et al., Defendants-Respondents. 28757.
• Court: Missouri Court of Appeals

Page 810

565 S.W.2d 810

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION Plaintiff-Appellant, v. Wilson MOORE et al., Harrison Dale Hooker, et al Defendants-Respondents.

No. KCD 28757.

Missouri Court of Appeals,Kansas City District.

May 1, 1978.

Bruce A. Ring, Chief Counsel, George M. Johnson, Asst. Counsel, Springfield, for plaintiff-appellant.

J. B. Carter, Carter & Becker, P.C., Clayton, for defendants-respondents.

Before WELBORN, Special Judge Presiding, PRITCHARD, J., and HIGGINS, Special Judge.

ANDREW JACKSON HIGGINS, Special Judge.

Action in eminent domain to acquire interests in real estate owned by Harrison Dale Hooker, Allieen Hooker, and Big Piney Aggregate, Inc. Appeal by State Highway Commission from verdict and judgment which awarded the owners $425,000 damages for the taking. Appellant's contentions question the court's rulings in admission of evidence. Affirmed.

Plaintiff petitioned to condemn a number of tracts of land, including the Hooker tract, for construction and improvement of 4.871 miles of Interstate Route 44 between Missouri Highway 28 and the Phelps County line in Pulaski County, Missouri. Commissioners filed their report and both sides excepted from the award of damages for the Hooker taking. September 25, 1974, appears as the date of taking.

Prior to the taking, the Hooker tract consisted of 168.84 acres, lying north of I-44 near Devil's Elbow, a few miles east of the Saint Robert interchange. Part of the tract was utilized as a sand and gravel removal operation on Big Piney River. This operation was affected by the taking of 32.8 acres for new highway right of way through the property.

Harrison Dale Hooker acquired the property in question in 1941. He gave a description of its location and features in which he referred to a bridge on old U.S. Highway 66 and its erosive effect on the course of the river along the property. He identified a lease agreement of 1967 with Big Piney Aggregate for removal of sand and gravel from the tract, and referred to requirements in the lease including maintenance of a levee around the property. The royalty was $0.07 per ton. The lease was modified in 1971 to provide for construction of a lake as the extraction operation progressed, change in method of excavation, and increase in royalty. In his opinion, the highest and best use of his property was mining of sand and gravel. He valued his whole property prior to the taking at $650,000 to $675,000. He identified the new right of way for I-44 through his property and described the effect of the taking on his property. He expressed a belief of an adverse effect to his property as a result of a new bridge across Big Piney River; he would have no access to I-44; he believed he would experience difficulty in trying to use a road under a previously constructed bridge. He valued his property after the taking at $200 per acre, $25,000 to $27,000 (net damages of $623,000 to $650,000).

Roscoe Thomas, superintendent for Howard Construction Company at its gravel and ready-mix concrete plant at Waynesville, described the sand and gravel business in the area of the Hooker property, and made some comparisons with Howard's operation on Forestry Service land at Fort Leonard Wood, where Howard paid a royalty of $0.10 per yard. He explained how a crusher is employed to crush rock to designated gradation, and that Howard had not used a crusher on either the Big Piney or Gasconade River sites.

George Winter, Jr., had been in the sand and gravel business since 1946. He described his operation near St. Louis, and his familiarity with the Big Piney Aggregate plant. He valued Big Piney Aggregate's facilities at $300,000 and the land at $1,000 per acre. He valued the whole property prior to the taking at $460,000 to $470,000. He gave the property an after-taking value of $26,000 for a grazing operation. He arrived at net damages for the taking of $430,000. His opinion reflected reports indicating presence of 11/2 million tons of gravel on the property.

Harold "Bud" Hoff, with a background in the sand and gravel and construction businesses, was familiar with the Big Piney Aggregate operation in question as its overseer. He described his company's samplings of sand and gravel on the Hooker tract and its predevelopment estimate of 1.8 to 2.5 million tons of sand and gravel in the ground. He calculated that in excess of 600,000 tons of material existed within the new right-of-way taking alone. He did not believe it would be feasible for his company to attempt to operate on the Hooker tract after removal of the right-of-way area. Part of this was attributable to problems of hauling under the old Highway 66 bridge. He described his company's costs of putting its plant in operation and placed the cost of setup as of September 25, 1974, at $353,000. He described his company's search for a new sand and gravel site, and the eventual relocation at U.S. Highway 63 and Little Piney River. This site, RoHa, was acquired in August, 1973, with the purchase of 610 acres for $138,000. He described increased hauling costs between mine and market, and the lag of 15 to 16 months from acquisition of RoHa to production. He believed his company lost $130,000 in the move from the Big Piney site to RoHa.

R. Dale Rueff, geologist with the Missouri Geological Survey, supported the owners' ideas of the availability of material in the general area of the Big Piney Aggregate operation.

George Wilson appraised subject property and determined the fair market value on the date of taking at $436,246, attributing $267,406 to plant and $168,840 to the 168.84 acres of land. In his after-taking situation, 62.49 acres remaining south of the new right of way had a value of $500 per acre, and 73.55 acres remaining to the north had a value of $200 per acre. He placed the damages at $391,311. He mentioned several comparable sales, and estimated cost of a new plant in excess of $300,000.

J. Harvey Hyams appraised the property and determined its fair market value at the time of taking at $438,000. He believed $0.25 per ton to be a fair royalty, and used a 9% capitalization rate and a 7.768 conversion factor in an income approach to value. His computation did not involve salvage value for the plant. His damages figure was $394,600.

Joseph Movshin made an appraisal of the plant on behalf of the Highway Commission. He estimated net value of the plant in place at $30,875, and reconstruction cost new at $76,500. He was cross-examined on his ideas of cost of plant items.

Charles R. Turner, District Highway Design Engineer, made the acreage computations involved in the Hooker taking. He also described acreages of areas determined to be gravel deposits by Dr. William C. Hayes, a geologist. He also computed costs of constructing haul roads necessary to mining remaining deposits.

Doctor Hayes made a geological study of the Hooker tract. In his judgment there were 850,917 cubic yards of recoverable materials in place, prior to the taking, and 562,898.4 cubic yards of materials remained outside the right of way after the taking.

Bob Harrison made an appraisal of the property for the Commission using acreages, volumes, and values of industrial equipment in evidence via Mr. Turner, Dr. Hayes, and Mr. Movshin. He determined the value of material deposits as of the date of taking at $80,400, to which he added $170 per acre, $88,800, for base value of 49.46 acres of land containing recoverable material. He valued 20 acres of stockpile area at $170 per acre, to which he added rental income for 10.34 years discounted at 9%, for a total of $11,265, excluding the built-up base. He valued 70 acres of land for agricultural purposes at $350 per acre, $24,500. He estimated value of mined-out land at $170 per acre and rounded it at $5,000. In this manner he arrived at a total value for land prior to taking of $129,565. He added improvements at $76,455 for a total pretaking value of $206,000. In the after-taking situation he believed the only improvement remaining was 2,000 feet of haul road, and that the value of the tract now was $62,300 and, thus total net damages of $133,700 were due the owners.

William Baker inspected the scale used at Big Piney Aggregate's plant December 12, 1974. He valued such a scale new at $8,500 to $9,000 and believed that similar scales in present condition would sell for $500 to $2,500.

Norman Goad, operator of a sand and gravel plant, thought it would be feasible to operate such a plant on the Hooker tract in its after-taking condition.

Donald Becker, Jr., a Highway Commission employee in its Division of Bridges, could find no Commission records of any work done to stop scour or to stabilize banks near the old bridge, and described the effect of the new bridges to be built over the Big Piney River upstream and downstream from the (old) bridge.

Jack Bennett was employed as a right-of-way appraiser by the Highway Commission. In his opinion, the pretaking value of the Hooker tract was $124,000 and the improvements $73,500, for a total of $197,500. He appraised the remainder after taking at $66,600, arriving at net damage of $130,900.

Tom McReynolds also appraised the Hooker taking for the Commission. He gave it a pretaking value of $193,000 and valued the remainder at $62,000, for net damages of $131,000. He used a market data approach to his appraisal. He had also made an income approach as described by Mr. Harrison and Mr. Bennett to arrive at a pretaking value of $187,000, but concluded damages to be at the higher figure he found by using market data. He was asked about but knew nothing of a rock crusher in Big Piney Aggregate's relocation at RoHa.

Mr. Hoff gave rebuttal for the owners on the effect of heavy hauling machinery on 10"' aggregate base haul roads, the amount of base under Big Piney Aggregate's stockpile, and the condition of the scale in question.

Mr. Hooker drove from Columbia to the condemnation site during trial...