State ex rel. State Highway Commission v. Ballwin Plaza Corp., 55854

• Decision Date: 13 December 1971
• Docket Number: No. 1,No. 55854,55854,1
• Citation: 474 S.W.2d 842
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. BALLWIN PLAZA CORPORATION, a corporation, et al., Defendants-Appellants
• Court: Missouri Supreme Court

Page 842

474 S.W.2d 842

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. BALLWIN PLAZA CORPORATION, a corporation, et al Defendants-Appellants.

No. 55854.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 10, 1972.

Robert L. Hyder, Jefferson City, Edwin B. Brzezinski, Melvin Englehart, Kirkwood, for respondent.

Walter S. Berkman, Clayton, for defendants-appellants.

LAURANCE M. HYDE, Special Commissioner.

Condemnation action. Defendant was awarded $98,700.00 by commissioners and both parties filed exceptions. The jury's verdict was for $33,500.00 and judgment was entered against defendant for the excess received of $65,200.00. The lowest estimate of damages by defendant's witnesses was $224,000.00. Defendant has appealed from the judgment against it. We affirm.

This is the second appeal in this case, the first being reported in 382 S.W.2d 633, in which we reversed and remanded a judgment against defendant for $78,700.00 for error in an instruction given at plaintiff's request. Defendant says 'an accurate description of the property involved is set out therein.' We therefore adopt the following statement of facts from that opinion.

'This action was instituted October 21, 1960, to acquire a part of defendant's land which abutted the north side of Route 100 (Manchester Road) in Ballwin, Missouri. This, together with other lands in the area, was being appropriated for the purpose of widening said Manchester Road between Manchester and Ellisville for a distance of about eight miles. The land taken from defendant was a strip 30 feet wide across the entire 883.10 feet of frontage containing 26,572 square feet. The defendant owned a 'community shopping center' at the location in question, and the area taken was intended for parking. The date of taking was stipulated as April 25, 1961.

'Route 100, or Manchester Road, runs generally east and west through St. Louis County. It was a 2-lane concrete roadway prior to the taking in question with each lane being nine feet in width. Access along defendant's entire frontage was not limited before, or by, the taking. Prior to the taking defendant was permitted by the state highway commission to utilize its right of access via four entrances constructed along the north side of the road and ranging in width from 41 to 49.3 feet. The construction plans filed in connection with the condemnation petition provided for replacement of such entrances at approximately the same locations, all to be 50 feet wide. The planned construction would cause Manchester Road to become two lanes 12 1/2 feet wide in each direction with a 10-foot shoulder on each side of the roadway. The shoulder was to be of oiled aggregate, a 'stabilized shoulder,' and by its use turning angles at the entrances would be wider. The road as thus changed was intended for vehicular travel at 40 miles per hour and the purpose of the changes was 'to move traffic through the area in a more efficient manner.'

'Defendant's shopping center consisted of various store buildings constructed in a 'U'. The buildings contained approximately 155,000 square feet of floor space. The land taken was intended to provide 82 parking places (81 according to the present record). The parking area remaining after the taking provided 967 parking spaces (997 according to the present record). Although disputed by plaintiff, defendant produced testimony tending to show that this shopping center was short of parking space before the taking and therefore damaged by the loss of parking space. In an attempt to mitigate damages defendant purchased three adjacent tracts for replacement of the lost parking area.' However, these tracts were never used for parking, because not conveniently located to the buildings according to defendant's evidence. Instead a Goodyear Tire Store was built there, which added another business establishment on one side of the original buildings. The 30-foot strip taken had about the same area as a football field. Plaintiff had the cars parked at defendant's shopping center counted on weekends and holidays at various times. In 1961, the highest number counted was on Saturday, December 23rd, 483. In December 1962, the highest number counted was 531 on Saturday the 22nd at 3:00 P.M. In 1965, the highest number counted was 595 on Saturday, December 18th, at 4:00 P.M. Two witnesses, who were employed by the W. T. Grant Department Store in the shopping center, nine and ten years, testified there was always room to park. Each drove her car to work and parked there. There were promotion days at the center when it was crowded but 'they have always found a place to park.' Defendant had photographs showing crowded conditions on some of those days. Defendant also had testimony to show that if customers could not see vacant spaces they would not come in.

Defendant's first claim of error is the court's refusal of its offer to show that the shopping center was sold in September 1967 for $2,050,000.00. The court's refusal was on two grounds: (1) that the sale was too remote, the sale being more than six years after the 30--foot strip was taken; (2) the sale price was $450,000.00 less than the total cost of the shopping center while the estimate of damages by defendant's owner was $300,000.00. The court said 'This, in and of itself, demonstrates that there were other factors involved in the difference in the value of the property between 1961 and 1967, because there is 50 per cent more loss from some other factor.' It appears in the evidence that since 1961, although the area was growing, other competing facilities have been installed in the area including two other shopping centers. Plaintiff also had testimony that 'It lacks one thing that makes a great shopping center and that is a crossroads.'

It is said in 5 Nichols on Eminent Domain 21--13: 'It is within the sound discretion of the trial court to admit or exclude testimony as to purchase price paid by owner of the property taken in a condemnation proceeding. It has been also held that where there is a resale after a partial taking of the remainder, under proper circumstances the price paid is admissible as evidence of the after value. The test of admissibility is, ultimately, whether the sale has probative value with respect to the present value. This determination lies in the sound discretion of the trial court.'

Defendant strongly relies on Land Clearance Authority v. Doerenhoefer, Mo.Sup., 404 S.W.2d 385, in which evidence was received to show the purchase price of property nine years before it was taken. This was a four to three decision of the Court en Banc, dissent being on the grounds that remoteness and changes in the area since the purchase made the purchase price inadmissible. In that case, the property was purchased for $40,000.00. The whole property was taken and the value found by the jury was $55,000.00. The owner's evidence of value was $79,022. Plaintiff's evidence of value was $50,000.00. What the court really decided was: 'The trial court did not abuse its discretion in permitting the jury to consider this evidence.' Necessarily the dissents considered there was an abuse of discretion because of remoteness and changes in the area.

The other cases cited by defendant are State ex rel. State Highway Commission v. Bowling, Mo.Sup., 414 S.W.2d 551, and State ex rel. State Highway Commission v. Langley, Mo.Sup., 422 S.W.2d 309. Defendant quotes from the dissenting opinion in Bowling, which was also a four to three decision of the Court en Banc, which discusses the decision in Doerenhoefer. However, Bowling involved the admissibility of an executory contract for the sale of a comparable property made in 1965 with a closing date in 1971. The court held this evidence was properly excluded because the date of closing was six years after the date of the contract and eight years after the date of taking. It was considered that such evidence 'would inject such elements of speculation and conjecture as to confuse the issue and mislead the jury.' The view of the dissenting opinion was that 'this was a currently executed, binding, written contract to sell and buy'; that 'there is nothing to indicate that the parties are speculating as to a future value'; and that 'they simply provided a deferred method of payment and closing.' The writer of the dissenting opinion referred to the opinion in Land Clearance Authority v. Doerenhoefer, from which he dissented as recognizing that the time element and change of conditions were 'things which the court recognized would go to the weight of the evidence in its consideration by the jury.'

In State ex rel. State Highway Commission v. Langley, 422 S.W.2d 309, this court reversed and remanded because the trial court refused evidence of the amount of revenue stamps defendant put on his deed offered to show consideration involved in the sale of the land to transfer it to a family corporation six months before the taking. Thus there was no issue as to the time element but only as to this method of showing consideration. Defendant refers to the reference in the opinion to State ex rel. State Highway Commission v. Ogle, Mo.App., 402 S.W.2d 605, 610 which said 'evidence which is legally competent, relevant and material on the issue of market value is admissible, and should not be excluded; and unless the evidence is wholly lacking in probative value, the weight to be given it, including remoteness and change of circumstances from the date of taking to the date of sale, is for the jury under appropriate instructions.' However, it was also said in Ogle, 402 S.W.2d l.c. 610: 'Logically, the same rules should apply where there is resale of property after a part has been appropriated in such a proceeding. There, of course, may be situations where evidence of such sale price would not be competent. The condition of the property...