State ex rel. State Highway Commission v. McCann

• Decision Date: 03 April 1952
• Docket Number: No. 7028,7028
• Citation: 248 S.W.2d 17
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION v. McCANN et al.
• Court: Missouri Court of Appeals

Page 17

248 S.W.2d 17

STATE ex rel. STATE HIGHWAY COMMISSION v. McCANN et al.

No. 7028.

Springfield Court of Appeals, Missouri.

April 3, 1952.

Claude T. Wood, Richland, Fields & Low, Lebanon, Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for appellants.

Robert L. Hyder, Minor C. Livesay, Jefferson City, M. J. Huff, Wm. H. Robinett, Hartville, for respondent.

VANDEVENTER, Presiding Judge.

This is a highway condemnation proceeding. The duly appointed commissioners found no damage for the defendant. Exceptions were filed, change of venue was taken to Wright County and upon a jury trial, again it was found defendant was entitled to no damage. Defendants appealed.

There is very little conflict in the evidence except as to the amount of damages and benefits, which was largely the opinions of experts, so-called. The accompanying plat prepared by plaintiff, introduced in evidence by defendants, used by each during the trial and by stipulation of the parties filed here as an exhibit, shows defendants' farm, house and other buildings, and old and proposed roads in detail.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The road for which the land was taken was known as Highway SA, Camden County and the west end connected Highway 54 a few miles north of Linn Creek. It ran from that point in an easterly direction to the Camden-Pulaski County line near Richland. Defendants owned a farm of approximately 320 acres on this route. In the center of this farm three the three-fourths forties are in a row, east and west, and the proposed right of way enters this row of forties at the N.W. Corner proceeds in a slightly south of east direction to about the center of the tract, then turns slightly northeastward, emerging from the farm at the northeast corner of the east of these forties. The right of way is 70 feet wide. There had previously been a road along the northern border of these particular forties separating them from a farm on the north. This road did not follow the line exactly, but did generally. The new right of way cuts off a strip of land on the north side of the farm containing approximately 39 acres (the acreage is shown on the plat), which tract of land is pointed at both ends, resembles in shape a narrow, straight slice off the bottom edge of a very large circle. It is approximately 240 rods long and 34 rods wide at the widest part, coming to a point at each end.

No under passage was provided for stock from this acreage to the south and well watered portion of the farm. The fencing of this right of way on both sides would require almost two miles of wire and posts. There is no water left in the thirty-nine acre strip, but previous to the acquisition of the right of way, there was a pond which had lately been built under government regulations, with a 210 foot dam, and which was valued from $120 to $150. Through this pond went the new right of way completely destroying it. Defendants, after the acquisition of the right of way and previous to the trial, had tried to build a small pond on the thirty-nine acres but the evidence shows their efforts were not very successful.

To the north of the east one of these forties were two other forties, extending north one-half mile, and on one of these forties was a small spring which the evidence shows furnished some, but not a great deal, of water. These two north forties were rough and wooded. Defendants' home and buildings were on the extreme southern edge of another forty acres due south of the third of the row of forties from the east, which placed his home and other buildings nearly one-half mile due south through the woods from the nearest point on the right of way of the new road and more than one-half mile from it when he travelled northeasterly along an old but good country road customarily used in going to Montreal or Richland. This road ran east and west near defendants' house and turned to the west thereof in a southwesterly direction across Wet Glaize Creek to another highway. This old road connected the new right of way at the west line of the east forty in the row. A short distance farther north, it connected with the old road on defendants' north line. Defendants' mail box was located on the old road across Wet Glaize Creek one-fourth mild from their home, at which point they received all their mail. It required 480 rods of woven wire, 824 common posts and 34 corner posts to build the fences on the either side of the new right of way. The woven wire cost $298 and necessary barb wire cost $71.60. Defendants' evidence showed the ordinary posts to be worth about $20cents each and the corner posts about $1. Plaintiff's evidence showed ordinary posts to be worth about 10cents or 12cents and the corner posts between 50cents and 75cents each. There was no dispute as to the cost of the wire. It was admittedly acquired at a bargain price according to general prices at the time. In addition to all this was the labor in building the fence at about 50cents per hour.

This farm was a stock farm for grazing cattle and before the right of way was acquired, it was all in one body and all accessible to water, which included two springs, a branch and Wet Glaize Creek, all south of the new right of way. There was some cultivatable land on the farm but the evidence shows that the only time it was cultivated was when the pasture thereon became bad and unfit for grazing, when it would be plowed up, cultivated and then reseeded. The right of way taken contained approximately eight acres, the value of which was estimated at from $20 to $30 per acre. Photographs were introduced of the new right of way which showed land reasonably level. The old road on the north line could be travelled nearly every day of the year in hauling stock, etc., and a photograph of part of it, introduced in evidence shows a good smooth country road.

Defendants' witnesses testified that the entire farm was worth about $10,000 before the acquisition of the right of way and from $7500 to $8000 after its acquisition. The plaintiff's evidence showed that the farm was worth from $9,000 to $10,000 before the acquisition of the right of way and about $12,500 after the road was completed. But when asked upon what facts plaintiff's witnesses based their opinion of the increased value, their explanation included general, as well as special benefits and also included speculative benefits.

For instance: Ed Winfrey, a witness for plaintiff, who lived about six miles east of defendants' farm, testified that in his opinion the farm was worth $9,000 before the right of way was taken and would be worth $11,000 after the road was built. He said that some of his reasons for that opinion were, 'on account of a good road through there.' Another reason: 'If a man owns land right up on the highway it is really worth more than it would be if it was setting back away from it, because if he wanted to put up some kind of a business, or sell off lots, or something, he would have the privilege of doing it.'

When asked if he knew of anybody in that country that had ever cut up a piece of land and sold it for residential purposes, he stated:

'Yes, sir; I can show you, right along that highway, houses, several of them, built between me and where Mr. McCann lives, in the last few years, since the highway went in.

'Q. But they are on farms? A. Yes; but they don't buy them for farms, they buy a little lot and build a house on it and live in it.'

But later on in his testimony on re-direct examination, he testified:

'Q. Did I understand you to say that some of the land adjoining this highway had been sold into lots? A. No, not in lots. The farm sold, a 230 acre farm--a 38 acre farm.

'Q. You said something about building along the highway, between there and Winfrey's? A. I said if a fellow wanted to sell off lots, and things, it would be a benefit to him.'

When asked if defendants' farm enjoyed any benefits from the road that other farms in the neighborhood did not enjoy, he answered, 'No, I guess they would all get the same, * * *. Well, they would all have the same privilege.' He testified again that the benefits were the same to all the farms in the community and stated, 'Well, some people have got to give a right-of-way some there. * * *'

Snode Perkins, a witness for the plaintiff, testified that in his opinion defendants' farm was worth $9,000 before the acquisition of the right of way and $12,000 afterwards. He estimated the value of the land taken and the damages to the defendant because of it being taken would amount to about $958.90, but in explaining why he thought the land was increased in value, he included general as well as special benefits.

Ray Eldred, Presiding Judge of the Camden County Court (which county, by the way, had a contract with the State Highway Department to pay for the right of way) gave his opinion that defendants' farm was worth $8,000 before the acquisition of the right of way and would be worth $12,000 when the highway was completed. But on cross examination, he could not tell the difference between special benefits and general benefits and stated that he thought the road benefitted everybody in the community, including himself who lived 25 miles from it.

Appellant complains of the giving of Instructions Nos. 5 and 6 and for an understandable discussion of those instructions, we must also set out 2 and 4. These instructions are:

Instruction No. 2.

'The court instructs the jury that in arriving at your verdict you should not consider and charge against the defendants the benefits, if any that may accrue to defendants by reason of the construction of said road which are common to other landowners in the vicinity of said road, parts of whose lands are not taken.

Instruction No. 4.

'The court instructs the jury that the term special benefits as used in these instructions means any benefits causing an increase in the market value of a tract of land by reason of its...