State ex rel. State Highway Commission v. Demarco

• Decision Date: 08 August 1969
• Docket Number: No. 8900,8900
• Citation: 445 S.W.2d 379
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff, v. Mike DEMARCO, Exceptions of Estate of W. E. Reed, et al., Movants-Respondents, v. Warren DEAN, et al., Respondents-Appellants.
• Court: Missouri Court of Appeals

Page 379

445 S.W.2d 379

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff, v. Mike DEMARCO, Exceptions of Estate of W. E. Reed, et al., Movants-Respondents, v. Warren DEAN, et al., Respondents-Appellants.

No. 8900.

Springfield Court of Appeals, Missouri.

Aug. 8, 1969.

Jay White, Rolla, for respondents-appellants.

James A. Cole, Jenny & Cole, Union, William A. Moffitt, Jr., St. Louis, for movants-respondents.

HOGAN, Presiding Judge.

This is a statutory proceeding to apportion and distribute an award of damages for condemnation, as provided by Section 523.053, R.S.Mo. (Cum.Supp.1967). The plaintiff Highway Commission filed condemnation proceedings in Phelps County naming the owners of the fee, to whom we shall refer as the Reeds, one Arthur Hayes, and the appellants, to whom we shall refer as the Deans, as defendants. We do not know the size of the tract which the State sought to appropriate from the Reeds--the parcel involved on this appeal is only about 500 feet square--but the commissioners awarded $78,000 as damages, without apportionment. The State, the Reeds and the Deans filed exceptions. Those exceptions are still pending, but shortly after present Section 523.053 became effective the Reeds filed a motion for distribution of the award as authorized by that statute. The substance of their motion was that none of the other defendants had any right or interest in the award, and that as the fee owners of the tract condemned, they were entitled to the entire award. The Deans filed a responsive pleading, setting up that they were 'bona fide lessees.' They did not specifically plead the nature of the leasehold interest which they held, but the responsive pleading incorporated by reference the documents from which the Deans deraign their claim of interest. The case was tried to the court, which found that the Deans had no compensable interest in the property appropriated at the time of the taking in condemnation. The Deans thereupon appealed to the Supreme Court, which concluded that it lacked jurisdiction and transferred the appeal here. State ex rel. State Highway Commission v. Demarco, Mo., 434 S.W.2d 552.

It may be noted preliminarily that although the transcript is not long, and the testimony of the witnesses is not very involved, the record taken as a whole is vague and obscure in many respects. This case represents--apparently--one facet of a more inclusive proceeding in which the condemnor appropriated a substantial acreage. Both counsel and the trial court seem to have been familiar with the general condemnation action and the relation between that action and this case, but we are not, and we do not have the same mental picture of this appeal in context. Further, though the chronology of events is important in this case, there is little if any correlation between events and the dates on which they occurred. In addition, 76 exhibits of varying degrees of relevance and importance were filed here, without any particular attempt to correlate them with the appellants' theory of the case. This is not to say that the record is insufficient for us to decide the case on its merits; it is to say that in the interest of an opinion of reasonable length, we shall refrain from reciting and threshing over all the evidence and summarizing all the exhibits, however extraneous; we shall notice only those basic facts and consider those fundamental points essential to a proper disposition of the appeal. See Bloomfield Reorganized School Dist. No. R--14 v. Stites, Mo., 336 S.W.2d 95, 97.

One issue to be considered here is whether or not the appellants were entitled to have a jury summoned to consider their claim of interest under the provisions of Section 523.053, R.S.Mo. (Cum.Supp.1967). Before the Supreme Court, the appellants attempted to assert their right to a jury trial as a constitutional issue. That court held that any constitutional question involved had been waived by failure to preserve it for review, State ex rel. State Highway Commission v. Demarco, supra, 434 S.W.2d at 554(3), and of course such a direct ruling precludes further consideration of the appellants' right to a jury trial as a constitutional matter; the issue is simply no longer in the case. ¹ In this connection, however, the appellants argue that since a party to a condemnation proceeding had under the provisions of Chapter 523, R.S.Mo. (1959) is entitled to have a jury assess his damages upon the filing of exceptions, ² it must be inferred that a jury trial was required.

Section 523.053, R.S.Mo. (Cum.Supp.1967) does not in terms require a jury trial. If we accept the respondents' view that the apportionment statute is a codification of the prior case law, then it would seem, in light of the language used in such cases as Land Clearance for Redevelopment Authority of City of St. Louis v. Zitko, Mo., 386 S.W.2d 69, 79(15, 16), and Murphy v. Barron, 286 Mo. 390, 409--411, 228 S.W. 492, 497--498(13, 14), that the proceeding authorized by Section 523.053 is a proceeding in the nature of an action to determine title to the realty appropriated, even though the title to real estate is not involved in the appellate jurisdictional sense. Murphy v. Barron, supra, 286 Mo. at 409--410, 228 S.W. at 497--498(13). For the purposes of this opinion, however, it is unnecessary to construe Section 523.053. While the appellants did request a jury trial in writing, the trial court announced before the trial was commenced that 'I am denying the request (for a jury trial)' and the appellants proceeded to trial without objection. Thus, even if the appellants had the right to a jury trial as they maintain, they waived that right by entering into trial before the court without objection. Rule 69.01(b) (4), V.A.M.R.; Section 510.190, par. 2(4), R.S.Mo. (1959); State ex rel. State Highway Commission v. Tighe, Mo., 386 S.W.2d 115, 117(2, 3). We therefore review the case as we would any other court-tried case, pursuant to the provisions of Rule 73.01(d), V.A.M.R. State ex rel. State Highway Commission v. Tighe, supra, 386 S.W.2d at 117. Among other things, Rule 73.01(d) requires that we defer to the findings of the trial court on conflicting evidence, and that the judgment be affirmed unless it is clearly erroneous. In re Franz' Estate, Mo., 372 S.W.2d 885, 900(7).

As indicated, the burden of the appellants' argument on the merits is that they were lessees or sublessees of the property appropriated, and as such are entitled to a share of the award. In the 'argument' part of their brief, the appellants begin with the sweeping assertion that any lessee or sublessee is entitled to an apportionment of the commissioners' award in a condemnation case, stating without explaining how they calculate the period that '(c) alculating from the date exceptions were filed September 21, 1964, appellants had five months, nine days on a one year sublease with Hayes and a possible three years renewal under the terms of the original lease.' We can agree with the appellants' general assertion to the extent of saying that ordinarily a lessee for a term of years, or from year to year, holding under a valid devise, grant or lease is an owner of property in the constitutional sense, and is entitled to compensation for the appropriation of his interest in the property to a public use, ³ and the same rule applies to a sublessee or assignee. 2 Nichols, Eminent Domain, § 5.23, p. 57. However, it is not true to say that every person who can properly be designated a lessee or sublessee is entitled to damages upon the taking of his interest in condemnation, for there are commonly recognized leasehold interests which are not sufficient to support a claim for a share of the compensation awarded to the fee owner when the property is appropriated to a public use. ⁴ What we must consider is whether or not the appellants had any compensable interest in the land appropriated at the time the condemnation proceeding was instituted, not at the time exceptions were filed, Millhouse v. Drainage District Mo. 48 of Dunklin County, Mo.App., 304 S.W.2d 54, 58(2) (3--8), and since the appellants trace their claim of interest from certain written instruments, we must first examine those instruments. ⁵

On January 1, 1958, Mr. W. E. Reed and Mr. Arthur Hayes executed a lease. By the terms of this instrument, Mr. Hayes leased a plot of ground 500 feet square (the tract immediately in controversy) from Reed at a monthly rental of $75 for a term of five years. The lessee covenanted that:

'* * * He will not assign nor sublet this lease or any portion of said premises except with the consent of the Lessor.'

It was mutually covenanted:

'* * * That the Lessee shall have the right or option to execute a new lease for one additional five (5) year term upon the expiration of this lease upon the same terms as provided herein except the rental shall be at the rate of One Hundred ($100.00) Dollars. This provision shall not be made a part of any subsequent lease.'

The lease is made binding on the heirs, administrators and assigns of the lessor and the heirs, administrators and assigns of the lessee, 'if assignment is permitted.' In connection with this document, to which we shall refer as the base lease, it should be noted that Mr. W. E. Reed died on January 10, 1961, and that by its terms the lease determined on December 31, 1962, unless renewed.

On March 2, 1959, Hayes sublet the premises, except 'the two central rooms adjacent to each other and located on the ground floor in the two story, remodeled building * * *' to Warren Dean for a term of one year at a monthly rental of $100. In this instrument Hayes, as sublessor, covenants as follows:

'The said Arthur Hayes further agrees that in the event of a breach of any of the terms of the original lease between W. E. Reed, the owner of the premises described herein, and the said Arthur Hayes, that he, Arthur Hayes, will protect the Lessee herein, Warren Dean,...