State ex rel. State Highway Com'n v. Jones
| Decision Date | 28 February 1929 |
| Docket Number | 26236 |
| Citation | 15 S.W.2d 338,321 Mo. 1154 |
| Parties | The State ex rel. State Highway Commission, Appellant, v. Junie E. Jones and Junie E. Jones as Executrix of Estate of W. Z. Jones |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court; Hon. Thomas B. Allen Judge.
Reversed and remanded.
Edgar Shook, A. M. Meyer and Franklin Boyer for appellant.
(1) The court erred in giving Instruction 2 at the request of defendant, for the reason that said instruction assumed a fact in controversy, to-wit, that the remainder of defendant's land was damaged by the appropriation of a part thereof. Miller v. Busey, 186 S.W. 983; Crow v. Houcks Ry., 212 Mo. 589; Ganey v. Kansas City, 259 Mo. 654; Barker v. Railroad Co., 88 Kan. 767; 38 Cyc. 1658, 1659; 1 Blashfield, Instructions to Juries, 63. (2) The court erred in giving Instruction 3 at the instance of defendant, for the reason that said instruction is an erroneous statement of the law of special and general benefits. This instruction is also in conflict with plaintiff's instructions numbered 3 and 4, and also assumes a fact, to-wit, damage. Bridge Co. v. Stone, 194 Mo. 175, 206 U.S. 267; Ry. Co. v. Mann, 99 Va 180; Mississippi Co. v. Byrd, 4 S.W.2d 810; Wheel Co. v. Chalkley (Va.), 34 S.E. 977; 1 Randall's Instructions, 553; Newby v. Platte, 25 Mo. 258; 9 L. R. A. (N. S.) 802; Rives v. City of Columbia, 80 Mo.App. 173; Ripkey v. Binns, 264 Mo. 505; Kansas City v. Bacon, 147 Mo. 259; Ry Co. v. Fowler, 143 Mo. 670; Suburban Belt Ry. Co. v. McElroy, 161 Mo. 584; Kirkendall v. Omaha, 39 Nebr. 1; Lewis Em. Dom. (3 Ed.) 1215; Railroad v. Blechle, 234 Mo. 478; Spencer v. Met. St. Ry. Co., 120 Mo. 160; Smith v. St. Joseph, 122 Mo. 145; Spokane Traction Co. v. Gronath, 42 Wash. 506.
Gresham & Gresham and Eastin & McNeely for respondent.
(1) Complaint is made of Instruction 2 given by the court at the request of the defendant. It is said this instruction assumes that damage results from the condemnation. Also that it assumes that an impaired use will result from the taking. A fair reading of the instruction leaves no room for these criticisms. There can be no possibility that the instruction did not particularly and emphatically tell the jury that they could not allow damages to the defendant's remaining land unless they found that its use was actually impaired as the result of the appropriation. Appellant quotes a clause -- a half sentence -- but does not intimate that anything precedes it which controls its meaning. Instructions should specify the elements and state clearly the rule of law applicable to the facts of the particular case and not leave the jury to determine the amount according to their belief and conjecture. Schaub v. Railway, 106 Mo. 93; Havsler v. Owen, 61 Mo. 270; Smith v. Mederacke, 302 Mo. 556. (2) The criticism of Instruction 3, given at the request of defendant, is that it assumes that defendant suffered damage. Again the instruction is garbled. Instructions must be taken as a whole. Words out of their context and unrelated to previous and subsequent clauses or sentences may carry a very different meaning from the meaning expressed when taken in their context. The instruction is not different in legal effect from the instruction approved in Railroad v. Shoemaker, 160 Mo. 425. (3) Error was committed against the defendant and at plaintiff's instance and plaintiff cannot complain of the result. (a) The plaintiff sought throughout the trial to impress the jury with the idea that general benefits might be set off against the damages suffered by this defendant and the court permitted the plaintiff to do this. The rulings of the court on the testimony offered were carried into the instructions in such a way as to lead the jury to conclude that these general benefits were proper deductions from the amount of damages sustained. Thus the very general definition of special benefits contained in Instruction 3. Then the equivocal and really erroneous instruction numbered four, in which the jury were told that if they found that other lands through or along which the road ran were also specially benefited in like manner with the Jones land, they would not be justified in disregarding the special benefits to defendant's land. This instruction was a plain effort on the part of plaintiff to circumvent the repeated and insistent demands of defendant that general benefits could not be deducted from the damages. If there is a conflict, it arises from the fact that the instructions given on behalf of plaintiff do not contain any definition at all of special benefits, and it was error against the defendant not to tell the jury the nature and character of such benefits. Instructions 3 and 6 for defendant are the best defendant could get. They do not define special benefits, as the jury should have had the definition. The authorities of this State support the position taken by respondent in the trial below and in this court on the subject of general and special benefits. Newby v. Platte County, 25 Mo. 258; Louisiana Road Co. v. Pickett, 25 Mo. 535; Rourke v. Railroad 221 Mo. 64; Bridge Co. v. Stone, 194 Mo. 188; Kansas City v. Bacon, 157 Mo. 463; St. Joseph v. Geiwatz, 148 Mo. 217; Hickman v. Kansas City, 120 Mo. 122. (b) If there is a conflict, the State has not been hurt and cannot complain. Bennett v. Woody, 137 Mo. 377, 384. Plaintiff put sixteen witnesses on the stand. Not one of them gave any estimate of the value of any special benefit. They gave their estimates as to the increased value of the land, but all of them showed that they were including the increased facilities for travel and transportation and the general increase to lands in the community because of the road, and this is not a special benefit. Mississippi County v. Byrd, 4 S.W.2d 812. No witness testified that the "actual and usable value of the land had been increased by the road."
Ragland, J. All concur, except Frank, J., absent.
This proceeding was commenced in Platte County by the State Highway Commission for the purpose of condemning a right-of-way for State Highway No. 1, across the land of W. Z. Jones. The cause eventually found its way to the Circuit Court of Buchanan County on change of venue. On a trial to a jury in that court, Jones, the defendant, was awarded damages in the sum of $ 1800. From such award the Highway Commission in due course perfected this appeal. Pending the appeal Jones has died and the cause has been revived in the name of his executrix.
Jones owned a farm in Platte County consisting of four quarter sections lying in the form of a square, except for eighty acres, the east half of the northeast quarter -- 560 acres in a contiguous body. The strip appropriated for the right-of-way was sixty feet in width and extended from the middle point of his south boundary northwestwardly, thereby cutting off from the main body of his land, at the southwest corner, a triangular tract of approximately 120 acres. All of the improvements -- dwelling, barn, etc., and running spring sufficient to serve with water the whole farm, if employed in stock raising, were on the larger tract, and so cut off from the smaller tract by the proposed road. About six acres of land were taken for the right-of-way.
The road for which the right-of-way was condemned was a primary state highway, traversing the State from its northern boundary south through St. Joseph and Kansas City to its southern boundary. The sixty-foot roadway was to be graded and paved with the highest type concrete slab, eighteen feet wide, and was to have bridges and culverts of reinforced concrete and steel: the estimated cost of the road -- for right-of-way and construction -- was $ 40,000 per mile. It has now been constructed in part and is known as United States Highway No. 71.
It seems that there were public roads along the south and west sides of Jones's land: they were roads of the old type -- "dirt roads."
According to the estimates of the witnesses, the market value of Jones's land was from $ 150 to $ 250 an acre: Jones himself placed the value at the latter figure. As no ruling of the trial court touching the consideration by the jury of the value of the land taken and the damages to the remaining land by reason of such taking is called in question, there is no necessity for summarizing the evidence with respect to those matters. The controversy in this court hinges on a question relating to special benefits. As having a bearing thereon there was substantial evidence tending to show that the market value of Jones's land would be increased from $ 10 to $ 25 an acre by reason of its being "on the road," its "frontage on the road," its "accessibility" to the road.
At defendant's instance the trial court gave to the jury the following instruction:
"The court instructs the jury that in estimating damages growing out of the appropriation of defendant's land by the State Highway Department for a public road across said land, the jury should consider the quantity and the value of the land taken, and the damages, if any, to the tract of which it is a part, by reason of the road running through it, and from the sum of these should deduct the benefits, if any, peculiar alone to such tract arising from the running of the road through it, and by peculiar benefits is meant such benefits, as that land alone derives from the location of said road through it, as are not common to the other lands in the same neighborhood through which the road runs."
Another instruction given for defendant concluded as follows:
"And from such sum as you may so find, if any you should deduct the benefit, if any peculiar alone to such tract arising from the running of the road through it, and by peculiar benefits is meant such benefits as...
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