State ex rel. State Highway Commission v. Langley

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State ex rel. State Highway Commission v. Langley, 422 S.W.2d 309 (Mo. 1967)
• Decision Date: 11 December 1967
• Docket Number: No. 1,No. 52425,52425,1
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Leroy P. LANGLEY et al., Exceptions of Ray L. Batman et al., Defendants-Appellants

Page 309

422 S.W.2d 309

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Leroy P. LANGLEY et al., Exceptions of Ray L. Batman et al Defendants-Appellants.

No. 52425.

Supreme Court of Missouri, Division No. 1.

Dec. 11, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 8, 1968.

Robert L. Hyder, Chief Counsel, Earl

Robert L. Hyder, Chief Counsel, Earl Counsel, Kansas City, for plaintiff-appellant.

Rufus Burrus, Independence, for defendants-appellants.

HIGGINS, Commissioner.

Action in condemnation to secure easements and property rights necessary to location and construction of Interstate Route I--70 in Jackson County, Missouri. The landowners, defendants Batman, et al., excepted from the commissioners' award and both plaintiff and defendants appeal from the ensuing jury verdict and judgment of $13,000.

The landowners had evidence or damages ranging up to $25,000 which is more than $15,000 in excess of the $7,500 to $8,850 to which the commission's evidence indicates the landowners to be entitled. State ex rel. State Highway Commission v. Kendrick, Mo., 383 S.W.2d 740, 743(3).

Defendants' land from which plaintiff's appropriation was made was an 80-acre tract lying about a quater mile northeast of Blue Springs, Missouri, and about sixteen miles east of Kansas City, Missouri. Its east side fronted for a quarter mile on Adams Dairy Road, a north and south hardsurfaced county road. The property was also situated a quarter mile north of R. D. Mize Road and a quarter mile south of Duncan Road, both east and west hardsurfaced county roads. Improvements consisted of a two-story frame house, barn, hog houses, chicken houses, and sheds. It was fenced on the perimeter, cross-fenced, and used as a cattle and grain farm.

The appropriation was made January 28, 1960, and was a taking of 19.128 acres in a rectangle 300 feet wide and 2,675.9 feet long, running east and west near the center of the 80-acre tract. After the taking 33 acres of the original tract remained north of the right of way and 28 acres remained south of the right of way. None of the buildings were taken; they remained on the north portion of the remainder. Access from the south remainder was fully appropriated and limited; an outer roadway was provided along the north remainder between Missouri Highway No. 7 on the west and Adams Dairy Road on the east. No underpass was provided for the intersection of Adams Dairy Road and I--70.

Owners' testimony by defendant Ray Batman placed the before-taking value at $60,000, $750 per acre. He testified that the appropriation reduced the before-taking value $24,000 to $25,000, resulting in an after-taking value of $36,000 to $35,000.

Defendants' witness Van Trump set the value before taking at $48,000 to $60,000, and the total damage at $17,500 to $27,500.

Defendants' witness Parr valued the tract at $52,000 before the taking and $28,960 after the taking, a difference of $23,040.

Defendants' witness Eggiman used before and after-taking figures of $54,000 and $32,583.20.

Plaintiff's witness Rule set the before-taking value at $30,150 and the after-taking value at $21,300, a difference of $8,850.

Plaintiff's witness Vanderpool used figures of $28,000 and $20,500, a difference of $7,500.

Upon cross-examination of defendant Ray Batman, plaintiff, over objection, was permitted to adduce testimony from Mr. Batman that he bought the 80 acres in 1959 for $32,500. Colloquy preceded and followed receipt of this testimony, most of which involved defendants' theory of objection that the sale was not competent evidence because it was a 'forced sale.' The court overruled the objection and, in the course of the colloquy, informed the jury of a stipulation between the parties 'that the property which is the subject of this taking was purchased by the defendants, in this case Mr. and Mrs. Batman, as reflected in the file of the court, Probate Court of Jackson County, Missouri, Estate No. 11084, in the matter of the Estate of Ethel May Peterson, deceased. That on August 5, 1959, the Probate Judge of Jackson County ordered the real estate to be sold at a private sale, in order that the obligations of the estate might be paid, and that the property was sold pursuant to that order to Mr. and Mrs. Batman for the sum of $32,500 on September 17, 1959, and that a title was received by the administrator's deed.'

Defendants' point is that the court 'erred in admitting the sale price ($32,500) * * * because it was at a forced sale to pay debts of the estate of the decedent and was not a sale by one 'willing but not obligated to sell it, and is bought by one willing or desirous to purchase it but who is not compelled to do so' as was set out in Instruction No. 3, and such testimony was prejudicial, harmful and resulted in an adverse verdict of the jury of an amount greatly less than the amount to which the land owners were entitled.'

'It is the established rule in this state, and generally, that the price an owner paid for property being condemned is admissible as some evidence of its value at the time of appropriation. That rule applies unless circumstances appear which destroy the relevancy or probative value of that otherwise relevant and highly important evidence. For example, the purchase must have been recent and not remote in point of time. Marked changes in conditions or values must not have occurred since the sale. The sale must have been voluntary in the sense that the seller and buyer were each capable and desirous of protecting his interest. The sale must not have been a forced sale, such as a tax or foreclosure sale.' State ex rel. State Highway Commission v. Rauscher Chevrolet Co., Mo., 291 S.W.2d 89, 92(4), 55 A.L.R.2d 773. See also MAI 15.01 defining 'fair market value'; Kirst v. Clarkson Const. Co., Mo.App., 395 S.W.2d 487, 496--497(13); State ex rel. State Highway Commission v. Ogle, Mo.App., 402 S.W.2d 605, 610(1--3); and see Nichols on Eminent Domain, 3rd Ed., Vol. 5, § 21.2, pp. 413--414, where the conditions to be satisfied for admission of the price paid for property subject to appropriation are expressed:

'(a) The sale must be bona fide;

'(b) The sale must be voluntary, not forced;

'(c) The sale must have occurred relevantly in point of time; and

'(d) The sale must cover substantially the same property which is the subject of the appropriation action.'

Examples of 'forced sales' in addition to tax and foreclosure sales, and of other circumstances which destroy the relevancy or probative value of the otherwise relevant evidence in the price an owner paid for property being condemned may be found in Kansas City & G. Ry. Co. v. Haake, 331 Mo. 429, 53 S.W.2d 891, 895(9), sales under deeds of trust or executions, and 894(5), assessed valuation by public official not participated in by the landowner; State ex rel. Kansas City P & L Co. v. Salmark, Mo., 350 S.W.2d 771, 772(1), amounts paid by the condemning party to other owners for other condemned property.

Defendants argue that the purchase by defendant Batman in the probate court sale was a forced sale and within the exceptions to admissibility noted in State Highway Commission v. Rauscher Chevrolet Co., supra.

The landowner, Mr. Batman, testified that immediately prior to the appropriation on January 28, 1960, his 80-acre tract was worth $60,000. He acquired the 80 acres, from which 19.128 acres were taken, at the probate court sale in August 1959 (administrator's deed is dated September 17, 1959), less than six months prior to the taking, and he made no improvements or changes to the tract between acquisition and condemnation. Thus, the requirements of relevancy in point of time and of covering substantially the same property are shown to have been met. Mr. Batman testified also that, even though the sale was a private sale in the probate court, it was conducted as an auction at which there were bidders other than he; the court supervised the sale; he was the highest bidder; he considered the land 'worth the money'; the sale was fair as opposed to any consideration that he 'stole the land'; and there is no contention of bad faith on either side. Such circumstances prove the sale was bona fide in that it was made 'in or with good faith; honestly, openly, and sincerely; without deceit or fraud.' Black's Law Dictionary, 4th Ed., p. 223.

Missouri courts have not considered the specific question whether a probate sale is in the nature of a 'forced sale'; however, the question has been answered in Redevelopment Agency of City of Santa Monica v. Zwerman, 240 Cal.App.2d 70, 49 Cal.Rptr. 443, and the reasoning of that case is adopted in denying defendants' contention here. 'Apart from the statement, made without discussion of reasons, by a divided court in * * * (State v. Styner (1937) 58 Idaho 233, 72 P.2d 699), and an ambiguous statement in Nichols on Eminent Domain (3rd Ed., § 21.32 pp. 463--465, we are cited to no authority holding that a probate sale is, per se, noncomparable; nor has our own research found any such authority.

'On principle we can see no reason to exclude probate sales in arriving at an opinion as to value. * * *

'The law has regularly excluded reliance on true 'forced sales' such as those under execution, or under foreclosure (citing, among others, Kansas City & G. Ry. Co. v. Haake, supra, and State Highway Commission v. Rauscher Chevrolet Co., supra), but such sales involve the element not only of some haste, but of a compulsion on the part of the property owner to take whatever price is offered by the highest bidder, regardless of its relation to actual value or to the owner's willingness to accept that price. For the same reason, sales at...