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

• Decision Date: 14 September 1964
• Docket Number: No. 50330,No. 1,50330,1
• Citation: State ex rel. State Highway Commission v. Ballwin Plaza Corp., 382 S.W.2d 633 (Mo. 1964)
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. BALLWIN PLAZA CORPORATION, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 633

382 S.W.2d 633

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. BALLWIN PLAZA CORPORATION, a Corporation, Appellant.

No. 50330.

Supreme Court of Missouri, Division No. 1.

Sept. 14, 1964.

Motion for Rehearing or for Transfer to Court En Banc Denied

Oct. 12, 1964.

Robert L. Hyder, Jefferson City, Samuel C. Ebling, Edwin B. Brzezinski, Kirkwood, for respondent.

Walter S. Berkman, St. Louis, for appellant.

HIGGINS, Commissioner.

This case comes to the writer by reassignment. The case is a condemnation suit in which commissioners awarded appellant the sum of $98,700. Both parties excepted and the jury verdict was for appellant in sum $20,000. Judgment was then entered against appellant upon such verdict for the difference between the award and verdict in sum $78,700. Appellant seeks relief from the judgment and, with the amount thereof being in excess of $15,000, the Supreme Court has jurisdiction. Section 477.040, RSMo 1959, V.A.M.S.

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. The parking area remaining after the taking provided 967 parking spaces. 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.

There was evidence of damages adduced by defendant ranging from $105,250 to $300,000, and by plaintiff ranging from no damage to $15,000.

Appellant's principal contention on this appeal is that the trial court erred in the manner of its submission of special benefits to the jury.

Plaintiff had the burden of proving special benefits and presented the testimony of five witnesses on this issue. Such witnesses were experienced real estate appraisers. One testified that fair market value of the land and improvements prior to the taking was $2,433,181 and that it was $2,409,681 after the taking, a difference of $23,500. This witness further testified that he considered as special benefits a better turning radius, the safety of ingress and egress by the shoulder and added lane and the width of the driveway; that the value of these benefits was $8,500, leaving net damage of $15,000. Another witness determined a value before taking of $2,332,269 and after taking of $2,322,522, a difference of $9,747. This witness considered wider entrances and larger turning radius, stabilized shoulders, and better flow of traffic to be special benefits worth $10,955, and thus arrived at a figure of no net damage. Another witness for plaintiff placed the before value at $2,373,600 and the after value at $2,360,300, a difference of $13,300. He then allowed special benefits for the property being more accessible and easier to turn into by virtue of the improved road conditions and that the benefits were worth $28,464, a net benefit of $15,200. Still another witness placed the before and after values at $2,331,902, and therefore no damages. In other words, he offset the taking of the 30-foot strip, the loss of parking thereon, and any resulting damage therefrom, with special benefits which he considered to be 'the placement of a four lane highway in front of the property * * *,' and better traffic flow. Yet another witness placed the before value at $2,421,500 and the after value at $2,412,500, which latter figure included $8,500 for special benefits, leaving a difference of $9,000 as damages; that he considered the expansion of two lanes into four lanes, the 10-foot stablized shoulder and the widened entrances as such special benefits.

Defendant was not without expert testimony on the issue of benefits as well as on its damages. Defendant called one witness who placed the fair market value of the entire property before the taking at $2,589,000 and at $2,400,000 after the taking. He valued the land taken at $20,000 and the severance damage to the remainder at $169,000, a total damage of $189,000. Another witness for defendant placed the value before taking at $2,576,300. He valued the land taken at $15,950 and the severance at $178,500, a total damage of $194,450, rounded to $194,500. This witness testified that he would deduct from this figure the sum of $89,250 which he considered as an 'economic' benefit. Prior to this item in his testimony, this witness had testified that the widening of the highway will help the property because the traffic will move faster and that this same advantage will inure to all other properties in the entire vicinity; that all properties including property off the highway would be benefited, 'the entire area will be benefited.' In connection with the value of such benefits the witness stated that the property would be benefited the same or more if the parking area were not taken because it would have the additional parking available on the 30-foot strip. The 'owner' testified that the value of the center before the taking was $2,750,000, and $2,450,000 after the taking, a damage of $300,000. He disputed the benefits and advantages, testifying that an easier flow of traffic on the widened highway would be a disadvantage because the widened road will have four lanes, making it more difficult to get into the shopping center; that the 4-lane highway will cause traffic to move faster and create a hazard.

Appellant charges that Instruction 5 is an erroneous submission of the issue of special benefits. The instruction follows:

'The Court instructs you that the just compensation to which the Defendant may be entitled for any taking or damaging of its property for public use in the construction or widening of State Highway 100 may be received in either the form of money or in the form of special benefits, or part in the form of money and part in the form of special benefits.

'If you find from the evidence that the Defendant's property has received any benefits from the construction or widening of the Highway by the Plaintiff, as described in evidence, because of said property's position abutting directly and immediately upon the highway and which are not common generally to property off said highway in that Community, then such benefits, if any, are just compensation or payment for an equal value of property taken, or damage, if any, to the remaining property. And you are further instructed that such benefits are special and not general benefits, although conferred, if you should so find, upon all the other tracts of land abutting upon the new highway.

'In assessing such special benefits, if any, you may take into consideration the following items:

'1) The increased adaptability, if any, of the land for its use as a shopping center by means of:

'a) The smoother flow of traffic resulting from the construction of a 50-foot highway, consisting of four paved lanes immediately adjacent to the Defendant's property; and

'b) The construction of a stabilized shoulder 10 feet in width along the entire front of the Defendant's property; and

'c) The construction of four entrances, 50 feet in width, consisting partially of concrete paving and asphalt paving as described in the evidence immediately adjacent to Defendant's remaining land; and

'd) The widened turning angle of said four entrances, as described in the evidence.

'Therefore, if you believe the Defendant, Ballwin Plaza Corporation, has received any such special benefits, you should not give it any additional or further compensation or return a verdict for it unless you find its damages, if any, exceed such special benefits, if any.'

Appellant contends among other things that by use of the language 'any such special benefits' and 'such special benefits,' the items in '1),' 'a),' 'b),' 'c),' and 'd),' were submitted to the jury as special benefits when they were not special benefits; that it was, therefore, error for the court to authorize the jury to consider such items in reaching a verdict.

The generally accepted...