State ex rel. State Highway Commission v. Tighe, 50241

• Decision Date: 14 December 1964
• Docket Number: No. 2,No. 50241,50241,2
• Citation: 386 S.W.2d 115
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Eugene G. TIGHE, Defendant-Appellant
• Court: Missouri Supreme Court

Page 115

386 S.W.2d 115

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of

Missouri, Plaintiff-Respondent, v. Eugene G. TIGHE, Defendant-Appellant.

No. 50241.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1964.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 11, 1965.

Robert L. Hyder, Melvin Englehart, Jefferson City, for plaintiff-respondent.

Daniel P. Reardon, St. Louis, for appellant.

BARRETT, Commissioner.

In the acquisition of right-of-way for the Mark Twain Expressway (U. S. Route 40) in the City of St. Louis, the state, in 1958, condemned the appellant Eugene G. Tighe's unimproved 1.913 acre tract of land known as 4400 North Broadway. The commissioners to assess damages made an award of $75,000 and both the landowner and the state filed exceptions to the award. In the circuit court there was no formal record of a waiver, but the parties 'by entering into trial before the court without objection' (Sup.Ct.Rule 69.01(b)(4)) in fact waived a trial by jury. The circuit court, at the conclusion of a lengthy trial, made a general finding and for the appropriation of Mr. Tighe's land, assessed 'the fair market value of the property taken' at $41,500. Subsequently the landowner filed a request that the court 'prepare and file a brief opinion containing a statement of the grounds for its decision and the method of determining any damages awarded.' Sup.Ct.Rule 73.01(b). In accordance with this request the court stated and found 'the land in the quarry area to contain an unstable fill which would not support a masonry building without extensive piering.' (Italics supplied.) The court stated that the landowner's evidence of $145,000 damage was considered but stated that this value was 'based upon the assumption that the fill in the quarry area was stable.' In addition the court considered the state's evidence that the landowner's damage, in view of the unstable fill, was but '25 cents to 40 cents per square foot.' But the court 'determined the land to be worth 50 cents per square foot, and multiplied the 83,000 square feet, which the Court found to have been appropriated, by 50 cents.' With this supplemental statement of grounds of decision in the record, and after the overruling of his motion for a new trial, the landowner appealed.

In this court the landowner makes these points: one, that for three reasons the 'evidence in this case is not sufficient to support the judgment of the Court.' The three reasons are (a) that the court ignored and failed to give any credence to the commissioners' report, (b) that the court's finding that the fill 'would not support a masonry building' is not supported by competent evidence, and (c) that the 'opinions of plaintiff's experts as to the value of defendant's property were entitled to little, if any, weight.' His second point is that the court 'erred in not permitting defendant to introduce evidence of comparable sales and show that the opinion of his expert was entitled to greater weight.' In response to these points the state contends, one, that 'the judgment of the trial court is sustained by competent and substantial evidence' and, second, that the court properly refused to permit the landowner's expert witness to testify to the sale price of other property because he could not state the source of his information. In connection with its first contention the state makes these points; (a) that the landowner 'failed to sustain the burden of proof as to the reasonable market value of the land,' (b) the report of the commissioners 'became functus-officio' upon the filing of exceptions 'and was not to be considered as evidence by the trial ocurt,' and (c) that the record supports the finding that a masonry building could not be constructed in the quarry area of the land 'without extensive piering.'

The respective contentions have been set forth in this detailed manner because it is apparent from their mere recitation, particularly when considered in connection with their arguments and citation of authorities, that in presenting their case on appeal the parties have not carefully observed the force of the important fact that this was a court-tried case. This is a condemnation proceeding but there does not appear to be any valid reason, certainly since the adoption of the Civil Code of Procedure in 1943, for one method of appellate review of court-tried condemnation cases and another method for other cases tried by the court without a jury. And the procedure governing 'cases tried upon the facts without a jury' has long provided that 'The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature.' Sup.Ct.Rule 73.01(a)(d); V.A.M.S. Sec. 510.310(1)(4). The statutes regulating the procedure in the exercise of the power of eminent domain do not in specific terms make the civil rule and statute applicable to condemnation proceedings but they do 'give the right' upon exceptions to a trial by jury. RSMo 1959, Sec. 523.060, V.A.M.S. And while the terminology is now rather unusual if not quaint the statutes also provide that on exceptions the court 'may order a new appraisement, upon good cause shown.' And, at the request of either party, 'Such new appraisement shall, * * * be made by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages.' State Highway Commission, State ex rel. v. Vorhof-Duenke Company, Mo., 366 S.W.2d 329. And of course it is fundamental that 'the right' to a jury trial, in condemnation as well as in other civil actions, may be waived, and, as indicated, one of the...