State ex rel. State Highway Commission v. Riss

• Decision Date: 09 September 1968
• Docket Number: No. 53242,No. 1,53242,1
• Citation: 432 S.W.2d 193
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Respondent, v. Richard R. RISS, Sr., Defendant-Appellant
• Court: Missouri Supreme Court

Page 193

432 S.W.2d 193

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff-Respondent, v. Richard R. RISS, Sr., Defendant-Appellant.

No. 53242.

Supreme Court of Missouri, Division No. 1.

Sept. 9, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 14, 1968.

Robert L. Hyder, Jefferson City, Earl H. Schrader, Jr., Tom M. Raimo, Frank O. Benson, Kansas City, for plaintiff respondent.

Edgar S. Carroll, Kansas City, for defendant-appellant, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

WELBORN, Commissioner.

Condemnation action by State Highway Commission for highway right-of-way. Condemnation commissioners awarded defendant-appellant Richard Riss $66,000 for 29.26 acres taken from a 680-acre tract owned by Riss in Platte County. On trial of exceptions of both the Highway Commission and the landowner, a jury awarded the landowner $125,000. The landowner's evidence was of minimum damages of $1,342,500, and he appeals.

The right-of-way sought was for the extension of State Route 45, from its junction with Route 9, one-half mile north of Parkville, eastward to U.S. Route 71 and Interstate 29, a distance of 2.379 miles. The right-of-way extended across the Riss property some 4800 feet, varying in width from 185 to 310 feet. Included in the right-of-way on the Riss property was a 2.38-acre tract for the relocation of a county road at its intersection with the new highway.

A major point of contention at the trial and on this appeal relates to the effect of the construction of the proposed highway upon Riss Lake. Riss Lake was formed by the construction of an earthen dam across White Aloe Creek, near the southwest corner of the Riss tract. Richard Riss testified that he had acquired the acreage and constructed the dam in furtherance of development of the tract for lakeside residential purposes. The dam was planned to rise to 911 (subsequently changed to 908) feet above sea level, with the projected normal water level at 906 (subsequently changed to 902) feet. Construction of the dam began in 1957 and by 1962 it had been built, with some 1,400,000 cubic yards of compacted material, to a minimum height of 892 feet above sea level. However, a two-foot steel pipe spillway at the 874.3-foot level, limited the lake level, ordinarily, to that height. At such level, the lake covered 194 acres and had a shore line of six miles.

The projected highway would cross the upper reaches of the lake, with 174 acres of lake between the center line of the roadway and the dam and 20 acres of lake area above the roadway center. The shore line would be 1 1/2 miles above the roadway and 4 1/2 miles below.

With the lake at the 900-foot level, the lake area below the roadway would have been 208 acres and above it, 48, with shore line of 5 1/2 and 3 1/2 miles, respectively.

The plans called for the highway to cross the lake on an earth embankment at the 890-foot level. Tubes, two 78 , one 54 and one 48 , were to be built into the embankment in order to permit water from the upper level to flow into the lower level.

Although Riss did own all of the shore line area of the lake at the 874.3-foot level, any substantial raising of the water level would cause the water to back up on land owned by others. Riss contended that he had agreements with all such landowners to permit flooding of their land to the 900-foot foot level. At the trial, written agreements to such effect from a number of landowners were produced. However, on June 30, 1964, before this present action had been filed, the Highway Commission purchased for $50,000 the fee simple title to a 40-acre tract, adjacent to the near extreme northeast corner of the Riss tract. The sellers of the tract were Lewis and Ann Elizabeth Klamm, and the tract became known as the 'Klamm tract.' A portion of the right-of-way for the new highway ran along the south boundary of the Klamm tract, a width of some 135 feet. More importantly, however, any increase in the lake level, at least above 877 feet, would have produced flooding on the Klamm tract and the commission's petition in condemnation specifically limited Riss's right to flood the right-of-way across the lake to a level of 877 feet. The commission asserted that the Klamm tract was purchased because of the location of the highway thereon and because the land was needed for fill and also candidly states that one objective of its purchase was to limit the level of Riss Lake.

The Klamm tract purchase is the principal basis for the appellant's contention that the plans of the Highway Department for the highway were so arbitrarily and unreasonably conceived and executed 'as to destroy and limit the value of defendant's property, without hope of just compensation, thereby violating defendant's constitutional rights.'

An earlier petition in condemnation, covering all property required by the project, including that owned by Riss and the Klamms, was voluntarily dismissed as to them by the Highway Commission. In its memorandum, filed March 30, 1964, dismissing as to Riss, the commission stated: '(I)t is now necessary that the Highway Commission amend its previous resolution concerning the location and construction of Route 45 (Platte County) or adopt a new and substitute resolution authorizing changes in grade and elevation and the acquisition and appropriation of certain water rights belonging to defendant, RICHARD R. RISS, SR., et al, and for the further reason that new detail plans will have to be prepared by the Chief Engineer, approved by said Commission and filed of record in this court showing and describing the necessary changes proposed to be made concerning Route 45 (Platte County) and as they concern and relate to the property and rights now owned by Defendant Riss * * *.'

Upon the refiling of the action against Riss alone on September 30, 1964, the defendant moved to dismiss the petition. A hearing was held on the motion and findings of fact and conclusions of law made by the court in overruling the motion. That ruling is now asserted to have been erroneous.

We find some difficulty in relating the assertions in support of the assignment of error to the motion presented to and ruled upon by the trial court. A further problem is presented by the absence in the transcript on appeal of the record of the hearing on the motion. For the most part, factual allegations now esserted were presented, insofar as found in the transcript on this appeal, in the form of offers of proof on the issue of measure of damages. The motion to dismiss, while asserting that the acts of the commission were arbitrary and capricious, proceeded primarily on the theory that the original proceeding was dismissed in order to permit negotiations between the commission and Riss, looking to some change in the plans for the project. There was also an allegation of an agreement about 'a joint and concerted action to acquire a certain forty acre tract.' The trial court found that there were discussions between Riss and the commission subsequent to the dismissal of the first action, but that their nature was unclear. There was no finding as to any agreement, and the appellant does not here assert that there was an agreement between him and the commission about the purchase of what was presumably referred to in the motion as the Klamm tract. Appellant does point to his offer of proof that the Klamms had previously offered the 40-acre tract to him for $20,000 and that the commission purchased the tract for $50,000 the day before Riss's attorney planned to offer the Klamms $30,000 for it. However, we fail to find that such action on the part of the commission would be evidence of such arbitrary action as would, in effect, invalidate the plans for the project. The trial court found that the Klamm tract was purchased because a portion of it was required for right-of-way, because there was need for borrow or fill from the tract and, finally, to control the lake level. Appellant suggests that the testimony that will would be needed from the Klamm tract 'does not seem to be borne out by the requirements of the plans,' but his offer of proof acknowledged that a commission witness testified that the tract was bought for, among other things, use for fill. We accept the trial court's finding that such was one of the objects of the purchase.

Appellant attacks the Klamm purchase as an arbitrary act on the part of the commission to prevent his carrying out his projected lake at the 900-foot level. Again, in this area, we are in the realm primarily of offers of proof. However, in any event, appellant does not point to any prohibition of law which prevented the acquisition by the commission of the tract. The design for the highway had involved a roadway at the 890-foot level. Had the commission not been in a position to restrict the lake below that level, the cost of the project might well have been increased far in excess of the expenditure for the Klamm tract.

The argument that the plan for 64, 68(5--7); State ex rel. State Highway acquired that tract, the highway could have been relocated to avoid crossing the lake, is in face of the well-established rule that a determination of the location of a highway is, by the Constitution (Art. IV, § 29, Constitution of Missouri, 1945, V.A.M.S.), entrusted to the sound discretion of the commission. State ex rel. State Highway Comm. v. Curtis, 359 Mo. 402, 222 S.W.2d 64, 68(5--7); State ex rel. State Highway Comm. v. Elliott, Mo.Sup., 326 S.W.2d 745, 750(1). The argument that a bridge should have been used instead of a causeway across the lake is likewise met by the well-established rule as to the proper roles of the Highway Commission and of the courts in passing upon their acts. The fact that, contrary to the recital in the stipulation for didmissal of the original petition, there was no change in the plans for the new roadway, does not demonstrate that the commission acted in bad faith....