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

• Decision Date: 10 September 1940
• Docket Number: 36305
• Citation: 142 S.W.2d 1025,346 Mo. 755
• Parties: State of Missouri at the relation of State Highway Commission v. George Deutschman et al., Eugene Hoven and Lynn Meat Company, Appellants
• Court: Missouri Supreme Court

142 S.W.2d 1025

346 Mo. 755

State of Missouri at the relation of State Highway Commission v. George Deutschman et al., Eugene Hoven and Lynn Meat Company, Appellants

No. 36305

Supreme Court of Missouri

September 10, 1940

Appeal from Circuit Court of St. Louis County; Hon. John J Wolfe, Judge.

Affirmed.

W H. Meredith, J. M. Feigenbaum and Jos. D Feigenbaum for appellant.

(1) In a condemnation suit, brought under the statute applying to the highway commission, railroads or corporations, plaintiff's payment into court of the commissioners' award vests title to the condemned property interest in the plaintiff; the court has no further jurisdiction over the matter except to determine the amount of damage for the property condemned, and any petition amendment thereafter dropping any of the property from condemnation, or order permitting such an amendment, is a nullity; so that, the petition amendment of December 14, 1935, in this case and leave of court for such amendment, were a nullity; therefore, the court erred, first, in overruling the motion to strike it; second, in excluding reference by appellant's counsel, in his opening statement, to the tract which had been excluded by the petition amendment and in directing counsel to make no further reference to it; third, by excluding from the purposes for which defendant's Exhibit 2 was admitted in evidence, anything regarding that tract; fourth, in excluding, as evidence, the portion of the file indicating the commissioners' award and its payment, to prove the complete condemnation of the tract; and, fifth, in excluding, as evidence, defendant's Exhibit 1. Gray v. St. L. & S. F. Ry. Co., 81 Mo. 126; Kennet & O. Railroad Co. v. Senter, 83 Mo.App. 181; State ex rel. Union E. L. & P. Co. v. Bruce, 334 Mo. 312, 66 S.W.2d 848; St. L., I. M. & S. Ry. Co. v. Pfau, 212 Mo. 398, 111 S.W. 12; State ex rel. State Highway Comm. v. Day, 327 Mo. 122, 35 S.W.2d 38; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 649; R. S. 1929, secs. 1344, 8143. (2) A map or diagram is admissible for the purpose of explaining and clarifying the oral testimony of a witness, even if it would not be competent as evidence itself for all purposes; and, therefore, the court erred in excluding, as evidence, defendant's Exhibit 1, while the witness Sullivan, who had drawn it, was on the stand, regardless of the propriety or impropriety of the petition amendment. Grady v. Royar, 181 S.W. 428; Williamson v. Fischer, 50 Mo. 198; State ex rel. State Highway Comm. v. Bailey, 115 S.W.2d 17; Collins v. Leahy, 102 S.W.2d 801; Moore v. St. Joseph & G. I. Ry. Co., 268 Mo. 31, 186 S.W. 1037; 2 Wigmore on Evidence (2 Ed.), sec. 790, p. 90. (3) Where a witness has testified, on direct examination, regarding an exhibit drawn by him that has been introduced in evidence, and has testified that it is accurate, opposing counsel has the right to ask him any question, on cross-examination tending to prove the inaccuracy of the exhibit; and, therefore, the court erred in refusing to permit the question of witness Haxton, on cross-examination, to prove the inaccuracy of plaintiff's Exhibit A, a plat drawn by him, regarding which he had testified on direct examination. 70 C. J. 650, sec. 816; State v. Martin, 229 Mo. 620, 129 S.W. 881; Mahaney v. Kansas City, Clay County & St. Joseph Auto Transit Co., 329 Mo. 793, 46 S.W.2d 817; Gurley v. St. Louis Transit Co., 259 S.W. 898. (4) In a condemnation suit, the inquiry as to the value of the property should not be directed to the value at the time of trial but should be to the time of the appropriation; and, therefore, the court erred in compelling the witness Colquhoun to answer a question as to sales at the time of trial, instead of at the time of the appropriation. In the Matter of the Establishment of Forsythe Blvd., 127 Mo. 421, 30 S.W. 189; Kansas City So. Ry. Co. v. Second Street Imp. Co., 256 Mo. 386, 166 S.W. 302; St. L. O. H. & C. Ry. Co. v. Fowler, 113 Mo. 458, 20 S.W. 1072. (5) A property owner, in a condemnation suit, is entitled to prove and recover any damage caused by drainage on part of his land resulting from the use for which the other part is condemned; and, therefore, the court erred in refusing to permit the witness Remley to answer the question as to what the natural drainage would be in the absence of the construction of the spillway as located. Inter-River Drain. Dist. v. Ham, 275 Mo. 384, 204 S.W. 723; North Nishnabotna Drain. Dist. v. Morgan, 323 Mo. 1, 18 S.W.2d 438; State ex rel. State Highway Comm. v. Bengal, 124 S.W.2d 687; Mo. P. & L. Co. v. Creed, 32 S.W.2d 788.

Louis V. Stigall and Ralph M. Eubanks for respondent.

(1) Under the statutes governing state highway condemnation the condemnor may abandon the whole or any parcel of land before possession is taken by a writing to that effect filed within ten days after the final assessment of damages. Secs. 1342, 1344, R. S. 1929; State ex rel. v. Fort, 180 Mo. 114; School Dist. v. Phoenix Land & Imp. Co., 297 Mo. 339; State ex rel. v. Skinker, 74 S.W.2d 898; St. Louis, K. & N.W. Ry. Co. v. Clark, 25 S.W. 192, 121 Mo. 200; St. Louis, K. & N.W. Ry. Co. v. Knapp-Stout & Co., 160 Mo. 396, 61 S.W. 302; Cape Girardeau v. Hunze, 314 Mo. 438, 284 S.W. 478; Shell Pipe Line Corp. v. Woolfolk, 53 S.W.2d 919; State ex rel. v. Jones, 15 S.W.2d 338; State ex rel. v. Williams, 51 S.W.2d 543; Railroad v. Roberts, 187 Mo. 309, 86 S.W. 91; St. Louis, I. M. & S. Ry. Co. v. Pfau, 212 Mo. 398, 111 S.W. 10. (2) Whether it is proper to admit a map or plat drawn by a witness to illustrate his testimony in any particular case is a matter resting largely in the discretion of the trial court and it is not error to reject a plat or map containing marks or figures which are irrelevant to the case on trial and might mislead the jury on a controverted issue. This is especially true when an offer is abandoned and no request is made for a ruling thereon. Bank v. Glass Co., 169 Mo.App. 374, 152 S.W. 379; 22 C. J., 912, 913; Williamson v. M., K. & T. Ry. Co., 115 Mo.App. 72, 90 S.W. 401; Martin v. Leatham, 71 P.2d 340; Zinser v. Sanitary Sewer Dist. of Chicago, 175 Ill.App. 22. (3) The scope of cross-examination on immaterial matters is largely within the discretion of the trial court and where the witness has answered before objection is made and sustained, and no motion to strike is made, the trial court cannot be convicted of error. State v. Salts, 331 Mo. 673, 56 S.W.2d 24; State ex rel. v. Hoffman, 132 S.W.2d 32; School Dist. v. Phoenix Land & Imp. Co., 297 Mo. 332, 249 S.W. 54. (4) An expert witness called to give his opinion on the market value of land condemned may be cross-examined regarding his knowledge of sales in the community within a reasonable time of the appropriation. Gurley v. St. Louis Transit Co., 259 S.W. 898; 22 C. J. 597, 598, 599; Boyce v. Gingrich, 154 Mo.App. 198, 134 S.W. 81; St. Louis, K. & N. Ry. Co. v. Clark, 121 Mo. 185; St. Louis v. Sheahan, 36 S.W.2d 953. (5) Whether or not an adjacent landowner has been deprived of the use of a public way as a parking space for the patrons of his private business is not a proper element of damage in a condemnation proceeding. State ex rel. v. Baumhoff, 93 S.W.2d 113; Brouster v. Shell Pipe Line Corp., 16 S.W.2d 672; St. Louis, K. & N. Ry. Co. v. Clark, 121 Mo. 197.

OPINION

Tipton, J.

This is an appeal by property owners from an award in a condemnation suit against owners of properties adjoining Highway 50 (Manchester Road) in St. Louis County, Missouri, between the towns of Kirkwood and Manchester. It was brought by the State at the relation of the State Highway Commission.

The purpose of the condemnation action was to widen Highway 50. The original condemnation petition sought to take two tracts of appellants' land, which was a corner lot fronting 204 feet on Highway 50 by 150 feet on Ruth Drive. The petition sought, first, a ten-foot strip running the length of the lot on Highway 50 for the right-of-way; second, it sought a tract forty by forty near the corner of the lot on the highway and Ruth Drive which was to be used for "a drainage ditch," and also for "men, teams, etc., in the work of construction and maintenance." On December 3, 1934, respondent's petition was amended by eliminating the phrase, "men, teams, etc., in the work of construction and maintenance," leaving this tract to be used only for a "drainage ditch or channel change," with respondent having the right "to enter" on this square at any time for the purpose of "maintaining" the drainage ditch or channel.

On December 10, 1934, the commissioners theretofore appointed by the court filed their report and awarded a total of $ 250 for the taking of both tracts of appellants' lot. On January 3, 1935, respondent paid into court the amount of the commissioners' award for the property of appellants. Appellants filed exceptions to the commissioner's award. Respondent took possession of the ten-foot tract of land but did not take possession of the forty-foot tract of land. On December 14, 1935, respondent amended its petition to eliminate the forty-foot tract of land. On September 28, 1937, appellants filed a motion to strike this later amendment from the files, which motion was overruled by the trial court. There was testimony tending to show that appellants' land had been damaged in excess of $ 18,000, while on the other hand respondent's evidence tended to show that the property had actually been benefited. The jury sustained respondent's contention. Other pertinent facts will be stated in the course of this opinion.

The appellants' first contention is that the court erred in overruling their motion to strike from the files respondent's amended petition. In other words, it is appellants' position that the...