State ex rel. State Highway Com'n v. Cox

• Decision Date: 07 January 1935
• Citation: 77 S.W.2d 116,336 Mo. 271
• Parties: State of Missouri at the Relation of the State Highway Commission, Relator, v. Argus Cox, Walter E. Bailey and Robert J. Smith, Judges of the Springfield Court of Appeals
• Court: Missouri Supreme Court

77 S.W.2d 116

336 Mo. 271

State of Missouri at the Relation of the State Highway Commission, Relator, v. Argus Cox, Walter E. Bailey and Robert J. Smith, Judges of the Springfield Court of Appeals

Supreme Court of Missouri

January 7, 1935

Record and opinion quashed.

John W. Mather and Jean Paul Bradshaw for relator.

(1) The opinion of the respondents in holding Instruction 6 erroneous is in conflict with the controlling decisions of the Supreme Court in the following respects: (a) Instruction 6 excludes from the consideration of the jury any damages growing out of the laying of the concrete slab within the existing right-of-way lines of Kearney Street. In so instructing the jury that the State may improve its existing right-of-way without additional compensation to an abutting property owner, the instruction is upheld by the following Supreme Court decisions: Ferrenbach v. Turner, 86 Mo. 418; Julia Building & Loan Co. v. Bell Tel. Co., 88 Mo 258; Lockland v. Ry. Co., 31 Mo. 108; Copper & Iron Mfg. Co. v. Ry. Co., 230 Mo. 59; Placke v Railroad Co., 140 Mo. 637, 41 S.W. 915. (b) Instruction 6 limits the deliberations of the jury to a consideration of only such damages as grow out of the taking. In so restricting the jury in this respect, Instruction 6 is upheld by the following Supreme Court decisions: Placke v Railroad Co., 140 Mo. 637, 41 S.W. 915; Copper & Iron Mfg. Co. v. Railroad Co., 230 Mo. 59; C. S. F. & C. Ry. Co. v. McGrew, 104 Mo. 290, 15 S.W. 932; Prairie Pipe Line Co. v. Shipp, 305 Mo. 671, 267 S.W. 649. (c) Instruction 6 excludes from the consideration of the jury any alleged damages resulting from "increased traffic" over and along the improved existing street. In so instructing the jury that the inconvenience of "increased traffic" is damnum absque injuria, Instruction 6 is upheld by the following Supreme Court decisions: Henry Gauss & Sons Mfg. Co. v Ry. Co., 113 Mo. 314, 20 S.W. 658; Mo. A. & G. Ry. Co. v. Harris, 181 S.W. 34; State ex rel. State Highway Comm. v. Watkins, 51 S.W.2d 545; Gates v. Kansas City, 111 Mo. 34, 19 S.W. 957; Duckert v. Ry. Co., 163 Mo. 260, 63 S.W. 814. (2) The opinion of the respondents in holding that Instruction B should have been given is in conflict with the controlling decisions of the Supreme Court in the following respects: (a) Instruction B proposes to allow damages if it is found the improvement of Kearney Street "will greatly increase the number of people traveling over said highway." This rule of damages which proposes to allow recovery for increased traffic is in conflict with the following Supreme Court decisions: Gauss & Sons Mfg. Co. v. Ry. Co., 113 Mo. 314, 20 S.W. 658; Mo. A. & G. Ry. Co. v. Harris, 181 S.W. 34; State ex rel. State Highway Comm. v. Watkins, 51 S.W.2d 545; Gates v. Kansas City, 111 Mo. 33, 19 S.W. 957; Duckert v. Ry. Co., 163 Mo. 260, 63 S.W. 814. (b) Instruction B would tell the jury that the Freehold Investment Company prior to the improvement of Kearney Street had a property right in the street which entitled the company to dynamite rocks onto the public thoroughfare, being liable for damages only in cases of negligence. In so stating the rule of negligence in the operation of a dynamiting enterprise adjacent to a public highway, the proposed Instruction B is in conflict with the following decisions: Blackford v. Heman Const. Co., 112 S.W. 290; Gilbert v. Evans & Howard Fire Brick Co., 260 S.W. 790; Bushing v. St. Louis Gas Line Co., 73 Mo. 227. (3) The opinion of the respondents in holding that Instruction D should have been given is in conflict with the controlling decisions of the Supreme Court in the following respects: (a) The respondents misconstrue Instruction D to allow merely that the jury might "consider the uses to which the quarry could be put." Inasmuch as the respondents concluded that the proposed instruction should have been given because it would allow the jury to "consider the uses to which the quarry could be put," and inasmuch as Instruction 1 given by the trial court specifically so instructed the jury, that action of the respondents in granting a new trial for the exclusion of one instruction when what they understood to have been excluded was given in another instruction, is in conflict with the following controlling decisions of the Supreme Court: State ex rel. Kansas City v. Ellison, 281 Mo. 672, 220 S.W. 499; Swelling v. Ry. Co., 287 Mo. 343, 230 S.W. 94; Trepp v. State Natl. Bank, 315 Mo. 883, 289 S.W. 540; Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38. (b) In reality a reading of Instruction D shows that it proposed to exclude from the jury all testimony showing that by reason of the plant's not being in operation for over two years, the rock quarry has depreciated in market value. In so attempting to conceal from the jury the market value at the time of the appropriation, by excluding from their consideration a material bit of the evidence given by the President of the Freehold Investment Company showing that disuse had depreciated the plant in market value, this Instruction D, approved by the Springfield Court of Appeals, is in conflict with the following decisions holding that market value of the property is to be determined on the day of the appropriation in view of the uses to which it is adapted and the business needs of the community. Mo. Pac. Ry. Co. v. Wernwag, 33 Mo.App. 453; Hosher v. Ry. Co., 60 Mo. 304; St. Louis, Oak Hill, etc., Ry. Co. v. Fowler, 113 Mo. 472, 20 S.W. 1069; Bridge Co. v. Ring, 58 Mo. 491; Randolph v. Townsite Co., 103 Mo. 451, 15 S.W. 437; McElroy v. Airline, 172 Mo. 546, 72 S.W. 913; Met. St. Ry. Co. v. Walsh, 197 Mo. 418, 94 S.W. 860; State ex rel. Kansas City v. Ellison, 281 Mo. 667, 220 S.W. 498.

C. W. Hamlin for respondents.

(1) The relator complains because the Court of Appeals upheld the action of the trial court in granting a new trial, partly upon the ground that it erred in refusing to give defendant's requested Instruction B. That, we are very sure, comes from a failure upon the part of the relator to differentiate between "Items" and "Elements" of damages. Instruction B nowhere tells the jury that they may take into consideration as an "item" of damages the fact, if it is a fact that the location of the highway alongside of the respondent's property would greatly increase the traffic on said highway and thereby increase the hazard in the operation of the quarry, but it expressly limits it to the consideration of that fact, if they found it to be a fact, as an "element" of damages which they might take into consideration in determining the marketable or salable value of the remaining property. And if we are right about this it at once condemns relator's Instruction 6. And the holding of the Court of Appeals on that proposition is certainly in harmony, not only with the law in this State but in many other states. We realize that in fixing these values there are many things that may enter into the consideration of that question. In truth almost each individual case presents its own peculiar facts that must be reckoned with, some of which may be "items" of damages, while others just as vitally affecting the sale or market value of the land after the appropriation, may only be "elements" of damages. So, we say, "items" of damages must not be confounded with "elements" of damages; and in making that statement, we think that we are in complete accord with the authorities on that point. Glendening v. Stahley, 91 N.E. 237; Pittsburg v. McCloskey, 1 A. 555; Centralia, etc., Railroad v. Brake, 17 N.E. 822; St. L. E. R. & W. Ry. v. Oliver, 87 P. 423; Dudley v. Railroad Co., 42 N.W. 360; Evans v. So. Surety Co., 218 N.W. 67; Chicago, etc., Ry. v. Driver, 72 N.E. 761; Tex., etc., Pipe Line Co. v. Stewart, 35 S.W.2d 630; Prairie Pipe Line Co. v. Shipp, 305 Mo. 623, 267 S.W. 649; State ex rel. v. McKelvey, 256 S.W. 484; St. L. Belt R. R. v. Mendonsa, 193 Mo. 522; Mo. P. Ry. v. McGrew, 104 Mo. 282; St. L. & I. M. Ry. v. Pfau, 212 Mo. 413; St. L., etc., Ry. v. Continental Brick Co., 198 Mo. 709; Mo. Light & Power Co. v. Creed, 32 S.W.2d 787; Railroad v. Blechle, 234 Mo. 480. (2) The right to use, enjoy and dispose of property is a fundamental right, and even the sovereign cannot deprive the humblest citizen of these rights, without first making just and fair compensation to him. The use of property is its most valuable quality and attribute. St. Louis v. Hill, 116 Mo. 533; In re Aiken, 262 Mo. 420, 171 S.W. 342; Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 208; State ex rel. v. McKelvey, 256 S.W. 484. Therefore the use to which the property is best suited is important. (3) The Court of Appeals in holding that the trial court should have given defendant's Instruction D certainly did not run counter to any of the holdings of this court or the courts of this country. The owner of property in this country has a right to handle his own property in his own way and the fact that this quarry was not then being operated was no concern of the appellant and all of the evidence in relation thereto should have been excluded and the court should have given respondent's requested Instruction D which read as follows: "You are instructed that even though you may find that, at the time of the location of said highway alongside of defendant's quarry, said quarry was not being operated, will not be considered by you in determining the issues in this case." The trial court did recognize the failure to give this instruction as error, and assigned that as one of his reasons for granting a new trial and we feel that this was no mistake. The Court of Appeals sustained this position. In the matter of Furman Street, 17 Wend. 669; Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 208.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

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