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

• Decision Date: 24 August 1934
• Parties: STATE OF MISSOURI EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, RESPONDENT, v. S. D. POPE, PEARL POPE, AND A. M. CURTIS, TRUSTEE, APPELLANTS
• Court: Missouri Court of Appeals

74 S.W.2d 265

228 Mo.App. 888

STATE OF MISSOURI EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, RESPONDENT, v. S. D. POPE, PEARL POPE, AND A. M. CURTIS, TRUSTEE, APPELLANTS

Court of Appeals of Missouri, Springfield

August 24, 1934

Appeal from Greene County Circuit Court.--Hon. Warren L. White Judge.

Reversed and remanded.

Farrington & Curtis and Paul W. Barrett for appellants.

Louis V. Stigall and Jean Paul Bradshaw for respondent.

BAILEY J. Allen, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

This is a condemnation proceeding instituted by the State of Missouri, at the relation of the State Highway Commission, for the purpose of condemning certain lands of defendants for highway purposes. The highway in question lies at the eastern limits of Springfield and forms a connecting link between U.S. Highways 66 and 65. The petition to condemn the land required for the construction of this highway was filed August 6, 1932, and commissioners were duly appointed for the purpose of assessing the damages sustained by the landowners whose property was condemned, including the property of these defendants. The commissioners, after qualifying, held hearings, viewed the property and filed their report, assessing the damages sustained by each tract of land along the highway. The State Highway Commission filed exceptions to the report as to the assessment of damages to defendants' lands and a trial was thereafter had to a jury on the exceptions, at the January, 1933, term of the Greene County Circuit Court, resulting in an award of $ 600 damages. Defendants have appealed.

The evidence shows that in 1928 defendants S.D. Pope and Pearl Pope, his wife, purchased the property in question, described as Lots 1 and 2, Davis Place Addition to the City of Springfield, although it had not been laid out into town lots nor was there any plat thereof on record. It was an unimproved tract of land at the northeast corner of Glenstone and Schweitzer roads. Prior to the improvement Glenstone was a graveled road or street running north and south at about the eastern limits of the City of Springfield and was intersected by Schweitzer Road, also called "Sunset Drive," at a point a short distance south and east of one of the finest residence districts of Springfield.

Prior to the condemnation the tract had a frontage of 300 feet north and south, facing Glenstone, and 234 feet east and west, facing Schweitzer Road. There were a number of substantial residences on Glenstone to the north of the Pope tract and the Springfield Country Club grounds were on the west, facing defendants' lands. There were also some substantial homes east of this property on Schweitzer Road. City water and electric current were available. While the lands were at the outer edge of Springfield, only partially within the city's limits, yet, being near the finest residence district of the city, they held, according to defendants' witnesses, a potential value as residence property of a more or less exclusive character. The lands were also said to be valuable for business purposes, being at the intersection of two important highways. While a plat had not been filed, as heretofore stated, the Popes had platted the land into lots with a view of selling them in the future. This plat showed five lots facing Glenstone, each with a frontage of sixty feet and a depth of 180 feet; also one lot fifty-four feet wide facing Schweitzer Road, with a depth of 300 feet. The five lots facing Glenstone were inside the city limits of Springfield.

The paved intersection of U.S. Highway 65, on Glenstone, and Route SD, on Schweitzer Road, as planned and constructed by the State Highway Commission, consisted of a straight right angle intersection of the two roads, with wide curving connections each direction, thus requiring more land than an ordinary road intersection. In order to carry out this plan the Commission condemned about .457 of an acre out of defendants' tract, which consisted of 1.54 acres, or about thirty per cent of the entire tract. A part of the land condemned was used only for what is termed a "sight view," hereinafter discussed.

On the question of damages we here quote from defendants' statement, which is correct.

"The Commissioners appointed by the court assessed the appellants' damages at $ 1,750 (Abs. 21) and a jury awarded them $ 600. The appellants' witnesses testified that the market value of the two lots before the highway was built on August 6, 1932, and the damage to the lots due to the building of the highway was as follows, respectively: Mr. Pope $ 6,000, $ 3,500; Val Mason $ 4,500, $ 2,000; Bert Ellis $ 3,500, $ 2,500; John Ferguson $ 5,000, $ 2,500; J. T. Hultsman $ 4,000, damage $ 4,000; M. M. Logan $ 5,100, $ 2,500; J. E. Cahill $ 5,000, $ 3,500; J. C. Vaughan $ 5,000, $ 3,000; and J. H. Snider, who formerly owned the tract, placed the value at $ 4,000 and the damage at $ 3,000.

The respondents' witnesses testified that the market value of the lots on August 6, 1932, the damage to the lots or the benefit to the lots was as follows, respectively: Roy Bedell $ 2,000, damage $ 600; U. G. Johnson, no estimate as to value, benefits equal to any damage; but no amount given; Harve W. Turner, value $ 2,000, no damage; John Schweitzer, value $ 1,500, damage $ 200 and J. W. Tippin value $ 1,500, no damage."

Other evidence, as to which there was some controversy, will be referred to in the course of this opinion.

The first assignment of error is as follows:

"The court erred in permitting counsel for the Highway Commission to ask appellants' witnesses on cross-examination whether or not their opinion as to the damage sustained by the landowner would not be different if they had known the law was that the landowners had a right to use the condemned land, build entrances across the ditch and otherwise use the condemned land. Also the court erred in permitting the Highway Commission to show that it was not using the land condemned for sight view."

The question rose in this manner: Mr. Val Mason, testifying for defendant, stated that in his opinion defendant's property had been damaged by reason of the condemnation and taking of said lands, in the sum of $ 2000. On cross-examination he further stated that the remaining tract might have made a good filling station site, but for the sight view. He further testified that, "a man couldn't cross that (meaning the sight-view), with any kind of obstruction or build anything that would obstruct the view through there, so that spoils it for a filling station." At that point the following occurred:

"'Q. If the law was such that you could go across here at any place, you could cross it, would that change your opinion as to the amount of the damages? A. Yes.

"'Q. How much? A. I don't know what it would cost to build over that five foot cut.

"'Q. Suppose you could put pipe across there for any distance you wanted to, and as long as you wanted to, at less than one dollar a foot, would that affect your testimony?'

"BY MR. BARRETT: 'Object to that for the reason he is assuming that it is true. . . . I think he is assuming something the highway department can't do, and further they have condemned this land and taken it and he wouldn't have any more right to use it than the public; which objection is by the court overruled, to which ruling of the court the defendants then and there duly excepted at the time.'"

The suggestion is made that the objection to the testimony complained of came too late. It appears from the quotation above that the objection did come after the witness had answered the first question and the answer was unfavorable to defendants. It was then too late to object to the question and answer and the point was therefore not saved for review by this court. [Boulicault v. Oriel Glass Co., 283 Mo. 237, l. c. 247, 223 S.W. 423.]

In fact the only objection came in relation to the question regarding the cost of putting a pipe across the five foot ditch in front of defendants' property and not to the question as to the use of the sight view. Moreover, the question asked the witness did not assume that defendants had the right to use the sight view for anything more than ingress and egress to the remaining property. It is too clear for argument that defendants had that right within any reasonable limits, just the same as he would have had the right to cross the ditch to the highway had there been no land condemned for sight-view. It is equally clear that, since the state has the right to condemn land for "sight distances" (R. S. Mo. 1929, Sec. 8111), defendants would have no right to obstruct the sight-view by erecting a filling station thereon or any building, signboard or other obstruction. Having condemned the land in question, without any limitation as to surface use, it was at all times under control of the State Highway Commission and it could make such use of the land condemned as might be required. [Shell Pipe Line Corp. v. Woolfolk, 53 S.W.2d 917, 331 Mo. 410.]

The further point made, in this connection, that plaintiff was permitted to ask the witness Pope as to whether or not the highway department had removed any trees from the so called "sight view," was therefore incompetent in so far as it tended to indicate to the jury that the highway commission had made no use of the land in question. The fact that they had not removed the trees would not prevent them from doing so at any time in the future and whether they had or not was immaterial. The witness, however, having answered that most of the trees had been removed, we are unable to perceive wherein defendants could have been prejudiced thereby.

The second assignment of error is as follows: "The court erred in permitting defendant's witness...