State ex rel. State Highway Commission v. Brockfeld

• Decision Date: 21 April 1964
• Docket Number: No. 31531,31531
• Citation: 378 S.W.2d 254
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, (Plaintiff) Appellant, v. G. A. BROCKFELD et al., (Defendants) Respondents.
• Court: Missouri Court of Appeals

Page 254

378 S.W.2d 254

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of

Missouri, (Plaintiff) Appellant, v. G. A. BROCKFELD et al., (Defendants) Respondents.

No. 31531.

St. Louis Court of Appeals, Missouri.

April 21, 1964.

Motion for Rehearing or for Transfer to Supreme Court Denied

May 19, 1964.

Robert L. Hyder and Bruce A. Ring, Missouri State Highway Dept., Jefferson City, for appellant.

Alvin Juergensmeyer, Warrenton, Thomas W. Wehrle, and Walter Wehrle and Wehrle & Wehrle, Clayton, Wm. L. Hungate and Hungate & Grewach, Troy, for respondents George F. Mohr and Genevieve B. Mohr.

FRANK W. HAYES, Special Judge.

The respondents, George F. Mohr and Genevieve Mohr, filed a motion in this court to dismiss the appeal of the appellant for its failure to comply with Supreme Court Rule 83.05, V.A.M.R., requiring that '[t]he points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong' in the rulings. The motion was submitted with the appeal. After reviewing the record, the court is of the opinion that there is sufficient compliance with the Rule to require, in the interest of justice, the retention of the appeal. Respondents' motion to dismiss the appeal is, therefore, overruled.

This is condemnation proceedings brought by the State of Missouri at the relation of the State Highway Commission of Missouri to acquire the right of way for the construction and maintenance of Interstate Route 70 in Warren County, Missouri. The action was instituted on May 10, 1962. Thereafter, commissioners were duly appointed and on June 21, 1962, they filed their report awarding the respondents the sum of $15,000.00. Timely exceptions were filed by appellant and respondents George F. Mohr and Genevieve B. Mohr and upon a trial of the exceptions, the jury on October 30, 1962, returned its verdict in favor of respondents in the sum of $7000.00, and from the judgment entered thereon the appellant appeals.

The respondents Mohr owned a tract of land abutting the south side of existing Route 40 in Warren County, Missouri, about half way between Warrenton and Wright City. The tract had a frontage alone Route 40 of approximately 313 feet, a depth along its east line of approximately 284 feet, and along its west line of approximately 200 feet with a width across the back of 300 feet. The tract of land was improved with a gasoline service station leased from respondents Mohr by the respondent Sinclair Refining Company, a corporation, and by it leased to respondents Sands. There were two (2) commercial type entrances from the property to Route 40, one at the east end and one at the west end of said property.

At this location Route 40 as it then existed was a dual lane highway with two concrete pavements. It ran in a generally east and west direction. The north lane was 18 feet in width and carried two lanes of traffic westwardly. The south lane, upon which the Mohr property abutted, was 24 feet in width and carried two lanes of traffic eastwardly. Approximately opposite the western entrance from said property to Route 40 was a cross-over connecting the two pavements of Route 40 so that traffic on the west-bound lane could turn onto the east-bound lane by using the crossover, and vice versa. There is a county road running north and south located approximately 271 feet east of respondents' Mohr east property line.

In constructing Interstate 70 Highway, the appellant is appropriating a small tract of land, consisting of 0.05 acre. There are no improvements located on this small tract. The reconstruction of Interstate 70 will involve the construction of a new westbound lane and resurfacing of the eastbound lane and the construction of two outer roadways, one being located on each side of the through lanes of Interstate 70. Both outer roadways will carry traffic in both directions while the north Interstate 70 pavement will carry traffic only in a western direction and the south Interstate 70 pavement will carry traffic only in an easterly direction. Both outer roadways will lead to interchanges at Warrenton and Wright City, Missouri, each being about three (3) miles from property in question. The respondents have free access to the south outer roadway which leads to Warrenton and Wright City, Missouri. At each interchange traffic on outer roadways can enter onto Interstate 70 and traffic from that highway can enter onto the outer roadways. The county road east of the Mohr property will be carried up and over Interstate 70 and there will be no interchange at the point where the county road crosses Interstate 70.

Before the improvements described herein, respondents Mohr had direct access from their property to existing Route 40 in two (2) places, one at the west end and the other at the east end of their property. By the new construction, this direct access to Route 40 is destroyed because of the construction of the outer roadway between the south lane of Route 40 and the property of respondents Mohr. While respondents Mohr had access to the outer roadway, they could not go across the outer roadway and enter what was old Route 40. But said respondents could, by traveling the outer roadway, finally have access to old Route 40. The sole question presented here is whether respondents Mohr had a property right in the easement of direct egress and ingress on pre-existing Route 40 which, when taken in condemnation, entitles them to compensatory damages. The trial court ruled that such loss of access to existing Route 40 was an element of damage to be considered by the jury in assessing said respondents' damages. Did the trial court err in so ruling? The answer to that question will rule the various assignments of error made by the appellant.

The appellant assigns as error the refusal to give its offered Instruction No. 6, which reads as follows:

'The Court instructs the jury that if you find from the evidence in this case that after the appropriation of a part of defendants' property and the reconstruction of Route 70, the defendants will have an unlimited right of access to an outer roadway of Route 70, then you shall not award to the defendants, nor allow to them any amount of money because of the fact that there is no direct access between defendants' remaining property and the through ways of Route 70.'

It also assigns as error the giving of Respondents' Mohr Instruction No. 3, which reads as follows:

'The Court instructs the jury that in determining just compensation to be paid to the defendants for the appropriation of their property by the plaintiff, as described in the evidence, you may take into consideration the damages, if any, resulting to the remainder of defendants' whole tract of land by reason of the taking of defendants' rights of access to U. S. Highway 40, existing on June 21, 1962, and by the construction of the limited access highway as described in evidence.'

There was evidence in the record to support the giving of Instruction No. 3, above, because witnesses for respondents Mohr testified that the loss of access to existing Route 40 caused by the new construction was an element of damage considered by each of them in fixing said respondents' damages. Appellant objected to this line of testimony, sometimes belatedly, all of which were overruled, and made motions to strike, sometimes untimely, all of which were overruled. Whether the trial court erred in admitting such testimony will be determined by the answer to the main question involved herein.

Here we are concered with two classes of highways, the 'limited access highway' and the 'land service road.' The 'limited access highway' is of comparatively recent origin in Missouri, being first authorized in our 1945 Constitution, Article IV, Section 29, V.A.M.S. Like its name signifies, there is no direct access to the throughway except at certain well spaced entrances and exists connecting outer roadways and intersecting highways. The usual direct access is allowed between the outer roadways and abutting property but no abutting owner shall have the right of direct access to said highway or its right of way. Directly means in a direct manner and without anything intervening. The very term, limited-access highway, conveys the idea that ingress and egress to the main traveled portion of the throughway has been circumscribed and restricted. Even if an outer roadway and ramp are close at hand, their course and place of entrance may be roundabout and burdensome to abutting property owner. As in the case at bar, the respondent had a choice of going three miles east to the interchange at Wright City or three miles west to the interchange at Warrenton before entering old 40.

The previously existing U. S. 40 was a 'land service road,' which is the term used to describe the ordinary highway which is intended primarily to enable abutting landowners to have access to the outside world as distinguished from the 'limited access road,' which is a 'traffic-service road' designed primarily to move through traffic. 43 A.L.R.2d 1074. In the instant case, U. S. 40 had been used as a 'land service road' for many years and the respondents had an easement of access, that is egress and ingress, from their service station property to said highway for many years. In the construction of Interstate 70, a 'limited access highway,' the appellants sought to appropriate a portion of respondents' real estate and to cut off and extinguish respondents' right of easement to U. S. 40. As, we understand the record, respondents are not claiming damages because they will not have direct access to Interstate 70 when completed. They do not claim they have any such right of access. Nor do they deny that the appellant has the right, in a proper proceedings, to destroy or impair their right of access to existing Highway 40. But they do contend that they had an easement of access...