State ex rel. State Highway Commission v. Herman
| Decision Date | 11 July 1966 |
| Docket Number | No. 51514,No. 1,51514,1 |
| Citation | 405 S.W.2d 904 |
| Parties | STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Eugene HERMAN et al., Exceptions of William E. Thomson, et al., Respondents |
| Court | Missouri Supreme Court |
Robert L. Hyder, Jefferson City, Earl H. Schrader, Jr., Tom J. Helms, Kansas City, for appellant.
Harry P. Thomson, Jr., John R. Caslavka, Kansas City, for respondents, Shughart, Thomson & Kilroy, Kansas City, of counsel.
HOUSER, Commissioner.
To facilitate the construction of Interstate Highway I--70 State Highway Commission in 1959 filed a petition to condemn a tract of 2.18 acres in Jackson County, part of a larger tract of approximately 22 acres. On February 29, 1960 commissioners appointed by the circuit judge filed their report awarding landowners damages of $1,750. The case was tried to a jury on exceptions filed by the commission and the landowners. The jury awarded damages of $35,000. The commission has appealed. Landowners' estimates of damages ranged from.$61,500 to $240,000. The commission's witnesses testified to damages of from $1,090 to $2,200. We have jurisdiction of this appeal since the amount in dispute exceeds $15,000. State ex rel. Kansas City Power & Light Co. v. Salmark Home Builders, Inc., Mo.Sup., 350 S.W.2d 771; Constitution, Art. V, § 3, V.A.M.S.; § 477.040, V.A.M.S.
The commission's first point is error in sustaining landowners' motion at the close of the evidence to direct the jury as a matter of law that as a result of the taking landowners were left without access to the remaining 20 acres. Landowners claim that the value of the remaining 20 acres has been diminished to virtually nothing because it is landlocked as a result of the construction of Interstate I--70. The commission claims that the remaining acreage is not landlocked and that landowners are entitled to be compensated only for the value of the 2.18 acres taken.
The 22-acre tract lies south of Highway 40, north of Leeds Road and west of Manchester Trafficway. For many years prior to the taking access to the 22-acre tract was had from the north via Eastern Avenue, a public road running generally north and south. Eastern Avenue was establish by order of the county court in 1873. Its right of way was obtained by condemnation and paid for by public funds. Eastern Avenue was originally traversible for its entire length from Highway 40 on the north to Leeds Road on the south. Access to the 22-acre tract was cut off from the north by the construction of Interstate I--70. In 1915 a bridge on Eastern Avenue south of the 22-acre tract and north of Leeds Road broke down and was never rebuilt. Over the commission's objections landowners introduced the testimony of ten witnesses showing that because of the breakdown of the bridge Eastern Avenue from the 22-acre tract south to Leeds Road has not been passable and has not been used since 1915.
Proceeding south along the west property line of the 22-acre tract Eastern Avenue changes its generally north-south course at a point within the 22-acre tract, from which it runs southeast to Leeds Road. Prior to 1957 the west part of the 22-acre tract lay within the city limits of Kansas City, and the east part lay in Jackson County. In 1957 the city limits were extended to include the entire tract. The 22 acres are underlain with a total of 2,260,997 tons of limestone of commercially saleable equality. That portion of Eastern Avenue south of the 22-acre tract was located outside the city limits of Kansas City until 1957.
The commission contends that the ruling of no access as a matter of law was mistakenly based upon inadmissible testimony--the testimony of nonuser. This testimony was admitted on the basis of the last clause in § 228.190, V.A.M.S. 1
On this appeal it is not the position of the commission that in declaring the property landlocked as a matter of law the court erred by depriving the jury of the opportunity of passing upon the credibility of the 10 witnesses who testified to nonuser. Tacitly and impliedly conceding the fact of nonuser the commission's complaint is that the court erred in admitting evidence of nonuser as a basis for landowners' theory of damages. The commission conceded in the pretrial hearing that access from the north was cut off by the construction of Interstate I--70. At the trial and on this appeal the commission did not contest the fact of nonuser after 1915 of the portion of Eastern Avenue to the south. In appellant's brief it is conceded that landowners 'affirmatively showed' that after the bridge broke down in 1915 the use of the portion of Eastern Avenue south of the 22-acre tract was intermittent at best 'and amounted to virtually no use at all.'
The commission contends that the nonuser provision of § 228.190 applies only to county roads established by prescription or user, and is inapplicable to roads such as Eastern Avenue and may not be used to justify the admission of evidence of abandonment, because Eastern Avenue was acquired by condemnation and paid for by the expenditure of public funds. The commission argues that abandonment of Eastern Avenue could properly be shown only by an order of vacation adopted in compliance with §§ 228.110--228.130, V.A.M.S., or by an ordinance of vacation adopted by the city, and that no such order or ordinance was made or adopted. The commission reasons that the public roads provisions of Chapter 228, V.A.M.S., envision a complete, symmetrical procedure for both establishment and vacation of county roads; that they provide for the filing of a petition or application, the giving of notice, the holding of a hearing, and the making of an order of establishment, § 228.080, or vacation, § 228.110; that the closing of a county road must be effected by a formal order of vacation having equal dignity with a formal order of establishment, and that since the right of way for Eastern Avenue was condemned and paid for by public funds, and not procured by gift or by payment of the amount of the damages by the petitioners, abandonment may not be effected under § 228.190.
We are of the opinion that a thoroughfare such as Eastern Avenue, legally established originally as a county road, used and existing as a public road for many years thereafter, which falls into disuse and is not used by the public for ten years continuously from 1915, may be declared abandoned and vacated under the nonuser clause of § 228.190. The nonuser clause in positive terms is made applicable to any public road, 'however acquired.' Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590, 591(2). It does not exclude or except public roads paid for by public funds and acquired by condemnation and we find no basis for a construction so limiting it. Nonaccess from the south by reason of that part of Eastern Avenue having ceased to exist could be established in this case by either of two methods: formal vacation by an order of the county court under § 228.110, or abandonment under § 228.190, i.e., nonuser by the public for the staturtory period continuously. Landowners were not required to produce a formal county court order of vacation in the abandonment of the public road. Corbin v. Galloway, Mo.App., 382 S.W.2d 827(4); State of Missouri ex rel. Carter County v. Lewis, Mo.App., 294 S.W.2d 954; Odom v. Hook, Mo.App., 177 S.W.2d 165; McFneny v. Gerlach, Mo.App., 142 S.W.2d 1095; Rosendahl v. Buecker, Mo.App., 27 S.W.2d 471(4); Proctor v. Proctor, 222 Mo.App. 21, 4 S.W.2d 882; Oetting v. Pollock, 189 Mo.App. 263, 175 S.W. 222. As stated in Elliott on Roads and Streets, 3rd ed., Vol. 2, § 1172: 'a highway may cease to exist either by abandonment or by vacation according to law.' The testimony of the several witnesses showing nonuser of the portion of Eastern Avenue in question was admissible in evidence. That testimony amply justifies the finding of abandonment of that portion of Eastern Avenue between the 22-acre trace and Leeds Road and effectively establishes that landowners' access to their land from the south has been cut off for many years.
It is true, as suggested by the commission, that the nonuser provision of § 228.190 was not intended to apply to title of lands voluntarily conveyed in trust to be used for the purpose of establishing streets thereon as they shall be needed and that lands so dedicated in perpetual trust and platted for such purposes can only be...
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