State ex rel. State Highway Com'n v. Hoffmann
| Decision Date | 03 October 1939 |
| Docket Number | 24,966 |
| Citation | 132 S.W.2d 27 |
| Parties | STATE OF MISSOURI at the Relation of the STATE HIGHWAY COMMISSION OF MISSOURI, RESPONDENT, v. CHARLES P. HOFFMANN, et al.; FRANK CREVELING REILLY, JUNE P. REILLY, FRED LOHMAN, CHRIS KROPP, ARTHUR E. KERTH, Trustee for VIRGINIA KINGSBURY, and VIRGINIA KINGSBURY, APPELLANTS |
| Court | Missouri Court of Appeals |
NOT FINIL UNTIL EXPIRATION OF THE REHEARING PERIOD.
Appeal from the Circuit Court of the County of St. Louis. Division No. 4. Hon. John J. Wolfe, Judge.
AFFIRMED.
This action grows out of a condemnation proceeding instituted by the State Highway Commission of Missouri in the circuit court of St. Louis County on June 5, 1936, for the purpose of condemning a portion of the land involved in this suit, and other lands, for the construction of a new highway connecting United States Highway. No. 40 and United States Highway No 61, near Wentzville, by way of a new bridge over the Missouri River near the end of Olive Street Road, and thence over a new location to the city of St. Louis. The proposed highway was known as T. R. 40 and was called a superhighway and destined to be a part of a transcontinental highway.
This suit involved a tract of land known as the "Hilltop Farm", belonging to Frank C. Reilly and situated in St. Louis County, Missouri, containing approximately 171 acres, rectangular in shape, almost a square, being slightly longer east and west than north and south, and bounded on the north its full length by Conway Road, and, on the south its full length, except for about 800 feet off the west end of its south boundary line, by Clayton Road. It was bounded on the east and west by privately owned tracts of land. The testimony showed that the east and west strip, 200 feet in width, taken for a right of way, was for the purpose of constructing thereon a superhighway consisting of two lanes of concrete pavement, each 20 feet wide and separated by a parkway 30 feet in width, and that at six points on the condemned strip of land the State was to construct at its own expense entrance-ways from the concrete to the property line of the owner. It was designed that the traffic on each of the concrete slabs should be in one direction only, the north concrete slab being for westbound traffic and the south concrete slab being for eastbound traffic.
The evidence disclosed that the 200 foot strip taken for right of way purposes, being about 2800 feet in length, comprised 13.067 acres and left approximately 63 acres on the north side and 93 acres on the south side of the condemned strip. The three commissioners appointed by the circuit court assessed the damages to the tract of land at $ 3433.00 and this amount was deposited in the registry of the court for the benefit of the land owner, and upon the trial before a jury the damages to the tract were assessed by it at $ 5226.80, and, on June 9, 1937, the court rendered a judgment for $ 1793.80 and costs; that amount being the difference between what the State Highway Commission had previously paid and the award made by the jury. The defendant landowner, after the overruling of the motion for a new trial, duly perfected an appeal to this court.
Counsel for the appellants make no complaint in their brief as to the instructions. Their first assignment is that the Court erred in refusing to sustain appellants' motion for a new trial on the grounds that the verdict of the jury was grossly inadequate; against the evidence, and against the instructions of the court.
It is urged by them in support of this assignment of error that where there is no substantial evidence of probative value to support an award it should be set aside; that the courts are not bound by opinions of experts, and that the award in the instant case should be set aside as being grossly inadequate.
This requires a consideration of the testimony to determine the merits of this contention. Finding, as we do, that there was substantial evidence on behalf of the condemnor in support of the verdict, we have no power to reverse the judgment in this case, even if we believe that the verdict is against the weight of the evidence. That prerogative rests solely with the trial judge. Biondi v. Central Coal and Coke Co., 320 Mo. 1130, loc. cit. 1136-7, 9 S.W.2d 596; Killam v. Travelers Protective Ass'n of America, (Mo. App.) 127 S.W.2d 772, loc. cit. 779; Ziegelmeier v. East St. Louis & Suburban R. Co., 330 Mo. 1013, loc. cit. 1019, 51 S.W.2d 1027; Smith v. East St. Louis Ry. Co. (Mo. App.) 123 S.W.2d 198, loc. cit. 206.
In the last cited case appears the following:
Appellants and the Condemnor each called four witnesses who testified in support of their respective contentions. From the statement made by each of the eight witnesses as to his qualifications to pass on the question of values before and after the condemnation, we are of the opinion that each one of them was qualified to pass on the questions involved in this case.
The four witnesses called by the defendant land owners testified that in their opinion the tract was worth $ 1500 per acre before the appropriation of the 200 foot strip for highway purposes, and that the remaining tracts on each side of the condemned strip were, consequently, damaged by the taking and by the use of the strip for highway purposes.
William R. Cady testified that the value of the tract before condemnation was $ 1500 per acre and that the remaining parts would be damaged because its best use would be for residential property and most people do not like to have homes on highways on which there is a great deal of traffic; they prefer privacy and less noise; that land in large tracts when divided into tracts of 1, 2 or 3 acres, sell more readily and at better prices than large tracts.
H. P. Kerth testified that $ 1500 per acre was the value before condemnation and that the remaining tracts north and south of the condemned strip would be reduced $ 200 per acre in value.
W. B. Schelp testified that land within 300 feet of the highway would be damaged $ 700 per acre by the highway. On cross examination he said if used for farm lands it is worth $ 100 per acre. He further testified as follows:
Charles W. Young testified that $ 1500 per acre was the value of the land prior to condemnation; that the highway would damage each acre within 300 to 500 feet on each side of it, about one-third in value, or $ 500 per acre. On cross examination he said that the Reilly tract had been used for farming land for the last 20 years, and that there is a house on it on the Clayton Road.
The witnesses called by the condemnor testified that the whole tract before the appropriation was reasonably worth on the market $ 1,000 per acre and that after the condemnation of the 200 foot strip the remaining portions were worth $ 1250 per acre.
S. C. Harvey testified that the whole tract prior to the appropriation was reasonably worth $ 1,000 per acre and that taking into consideration the type and character of the highway to be constructed, he placed the remaining portions outside of the 200 foot strip condemned as reasonably worth $ 1200 per acre.
Emil A. Fuszner testified that the entire tract prior to the appropriation was reasonably worth $ 1,000 per acre and that, in view of the use to be made of the condemned strip, the remaining portions would be worth approximately double the previous value.
Frank H. Brown testified that the 170 acre tract on September 1, 1936, was worth $ 1000 an acre and that, after the road, of the description contemplated, was built there, it would be worth $ 1250 an acre.
Eugene D. Ruth, Jr., testified that he had known the Reilly tract for fifteen years; that it was mostly farm land with typical farm improvements at that time; that it was in wheat at that time; that it wasn't worth more than $ 1000 an acre; that after the construction of the highway of the kind contemplated it would be worth $ 1500 per acre; that it could be readily subdivided into one or two acre tracts; that many more buyers could be found for smaller tracts; that small tracts fronting on such a super-highway would sell for more money than if they were on Clayton Road.
It clearly appears that if the jury believed these witnesses called by condemnor the verdict was necessarily based on substantial evidence and the award was not subject to the criticism of being inadequate, insofar as the land owner was concerned. It appears from the record that the qualifications of no witness, who testified as to damages and special benefits, were questioned at the trial.
It is urged by appellants' counsel that courts are not bound by opinions of experts. This suggestion would apply equally to the appellants' four witnesses as it would to condemnor's four witnesses. But it must be conceded that opinion testimony constitutes substantial evidence on the pivotal question of market value before and after the appropriation of the 200 foot strip in controversy.
In Restetsky v. Delmar Avenue & Clayton Railroad, 106 Mo.App. 382, loc. cit. 389, 85 S.W....
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