State ex rel. State Highway Commission v. Koberna

• Decision Date: 13 December 1965
• Docket Number: No. 50981,No. 2,50981,2
• Citation: 396 S.W.2d 654
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. William KOBERNA et al., Defendants, Shirley Rawlinson, Appellant
• Court: Missouri Supreme Court

Page 654

396 S.W.2d 654

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. William KOBERNA et al., Defendants, Shirley Rawlinson, Appellant.

No. 50981.

Supreme Court of Missouri, Division No. 2.

Dec. 13, 1965.

Robert L. Hyder, Jefferson City, Samuel C. Ebling, Kirkwood, for plaintiff-respondent.

Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Paul Brackman, R. W Copeland, Clayton, for defendant-appellant.

STOCKARD, Commissioner.

In this action for condemnation of land for highway purposes the jury award of just compensation to Shirley Rawlinson the owner of record, was $22,000, and she has appealed. The difference between the award and that to which appellant claims she is entitled under her evidence exceeds $15,000. Appellate jurisdiction is in this court.

The land in question consisted of a sevenacre tract located in the southern part of St. Louis County near the intersection of Lindbergh Boulevard and Lemay Ferry Road. The portion taken for highway purposes consisted of 4.56 acres, leaving 2.44 acres which is landlocked except for access to a platted, but not constructed, road. The date of taking was stipulated to have been November 16, 1961, and it was further stipulated that Shirley Rawlinson, the record owner and named defendant, was in fact a 'straw party' for the actual owner Walter Scott, but he was never substituted as a party defendant in the action.

Appellant's first two points are that the trial court erred in giving Instruction 5 and in refusing her requested Instruction A. To rule these points we must first set out the language of Instruction 4, not challenged by appellant, which was as follows:

'You are instructed that in determining the just compensation to which the Defendant is entitled you shall first determine the fair market value of all of Defendant's land immediately prior to November 16, 1961, and you shall then determine the fair market value of the Defendant's land remaining after November 16, 1961, and the difference is the just compensation to which the Defendant is entitled.'

Instruction 5, which is challenged, defines the term 'fair market value.' Although this case was tried before January 1, 1965, the effective date for the mandatory use of the Missouri Approved Jury Instructions (M.A.I.), Instruction 5 is identical, except for one word, to M.A.I. No. 15.01, and was as follows:

'The term 'fair market value' means the price which the property in question would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but who is not compelled to do so.

'In determining fair market value you should take into consideration all the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the immediate future.'

In M.A.I. No. 15.01 the next to the last word is 'near' instead of 'immediate.' At the time Instruction 5 was given, the word 'immediate' appeared in the then proposed M.A.I. No. 15.01, but was later changed to 'near' prior to January 1, 1965. Appellant makes no point concerning the use of 'immediate' instead of 'near.'

Related to the alleged error in giving Instruction 5 is the alleged error in refusing appellant's requested Instruction A, and although somewhat lengthy, we shall set it out, and for future reference we have added brackets around certain parts of it.

'The Court instructs the jury that plaintiff, the State Highway Commission of the State of Missouri, is seeking, by this suit to condemn for public use as a right-of-way a total of 4.56 acres of land described in the evidence and bounded on the south by Forder Road, on the west by Union Road, on the north by the remaining property of Shirley Rawlinson and on the east by the property of May Stores Shopping Center, Inc. and the property formerly owned by Frank C. Wallis, being the property of Shirley Rowlinson. Your verdict therefore must be for Shirley Rowlinson. In assessing the just compensation due her you must allow her the amount which you find and believe from the evidence to be the fair market value as of November 16, 1961 of such 4.56 acres.

['The term 'fair market value' means the price which her property would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but is not compelled to do so.] Fair market value does not mean the price it would bring where the party selling is forced to sell, or where it is sold for other considerations in addition to the money paid, but rather what the land would fairly bring in the hands of a prudent seller at liberty to fix the time at which she would sell and the conditions under which she would sell. The question is, if the defendant Shirley Rowlinson wanted to sell her property, what could have been obtained for it upon the market from parties who wanted to buy it on November 16, 1961, and would give her its full value for its highest and best use?

['In determining its fair market value, the jury should take into consideration] its location, the uses for which it is suitable at such location, including [all the uses to which it may best be applied or for which it is best adapted,] having regard not alone for the existing business wants of the community, but also such uses as may [be reasonably expected in the immediate future,] and comparing with the sales and prices most recently obtained at or about the time of the taking for comparable lands with the same facilities in the area. In determining the uses and purposes for which Shirley Rowlinson's land were suitable or adaptable, the jury is not confined to the use made of the land at the time it was taken.'

Appellant's contentions as to Instruction 5 are that (a) it 'was not a complete statement of the law and omitted many necessary elements about which defendant was entitled to have the jury instructed;' (b) it failed to instruct the jury to consider the comparable sales of land in the immediate vicinity and near the time of the taking; (c) it failed to instruct the jury to determine the probable best use of said property in the reasonably foreseeable future; and (d) it 'was not a proper definition of 'fair market value' under the evidence adduced in said cause.' Appellant's contentions as to the refusal of Instruction A are that (a) it was 'a proper instruction which had been previously approved by the Supreme Court;' (b) it 'properly put before the jury the proper elements to consider relative to uses to which the property would be best adapted considering the existing business wants of the community and such uses as might be reasonably expected in the immediate future;' (c) it properly instructed the jury that it was not confined to the use being made at the time it was taken; and (d) it properly instructed the jury to take into consideration the most recent comparable sales of land in the immediate area.

Prior to the mandatory use of M.A.I. the use of an instruction in the language of Instruction A has been held not to be improper. City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839; State of Missouri ex rel. the Board of Regents for the Central Missouri State College v. Moriarty, Mo.App., 361 S.W.2d 133. We are of the opinion that it would not have been reversible error for the trial court to have given Instruction A in this case. The question, however, is whether it was prejudicially erroneous for the trial court to refuse to give it and to give Instruction 5.

It is interesting to note that the result of appellant's contention is that she is entitled to a new trial because Instruction 5 was given instead of Instruction A, but on a new trial, if granted, the trial court would then be required not to give Instruction A and to give M.A.I. 15.01, which is identical to Instruction 5 except for one word about which no complaint is now made.

We shall examine first Instruction A. In the first paragraph it improperly told the jury to determine the fair market value of the 4.56 acres actually taken. This was a 'partial taking' case, and the proper procedure was for the jury to use the 'before and after' rule as set out in Instruction 4. Other than advising the jury of the date on which the fair market value should be determined, and Instruction 4 did this, the remainder of the first paragraph of Instruction A was unnecessary, and in fact bordered on a comment on the evidence and on being argumentative.

The first sentence of the second paragraph of Instruction A, which we have bracketed, is almost identical (the difference not being material) to the first sentence of Instruction 5, and it advised the jury the meaning of the term 'fair market value.' There then follows in Instruction A a discussion of what the term does not mean, argumentative in nature, and then the instruction poses a question to the jury rather than declaring the law. In addition, in this latter part of the second paragraph reference is made to 'her property,' which could mean the seven-acre tract or perhaps the 4.56 acres referred to in the first paragraph, but in either event it ignored the 'before and after' test.

In the third paragraph of Instruction A, the portions which we have bracketed contain almost the identical language (the difference being immaterial) of the second paragraph of Instruction 5. The remaining portions of the third paragraph constitute an explanation of what was meant by the bracketed language, and is in nature argumentative. Appellant was not prejudiced by the failure of the trial court to give Instruction A in the language submitted.

We shall now examine the contentions as to Instruction 5. Appellant contends that it (a) did not instruct the jury to consider comparable sales of land in the immediate vicinity and near the time of the taking, and (b) failed to instruct the jury to determine the best probable use of said...