State v. Blobeck Inv. Co.

• Decision Date: 03 October 1933
• Docket Number: No. 22475.,22475.
• Citation: 63 S.W.2d 448
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION v. BLOBECK INV. CO.
• Court: Missouri Court of Appeals

63 S.W.2d 448

STATE ex rel. STATE HIGHWAY COMMISSION v. BLOBECK INV. CO.

No. 22475.

St. Louis Court of Appeals. Missouri.

October 3, 1933.

Rehearing Denied October 17, 1933.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be published in State Reports."

Condemnation proceeding by the State of Missouri, on the relation of the State Highway Commission, against the Blobeck Investment Company. Verdict for defendant, plaintiff's motion for a new trial was sustained, and defendant appeals.

Affirmed and remanded.

George F. Heege, of Clayton, for appellant.

Louis V. Stigall and Ralph M. Eubanks, both of Jefferson City, for respondent.

BENNICK, Commissioner.

This is a proceeding to condemn certain land in St. Louis county, lying alongside the old Watson road and adjacent to the city of St. Louis, for the purpose of the construction of what is now known as Route 66 Traffic Relief. Among the landowners affected was the Blobeck Investment Company, the defendant herein, which owned a tract of approximately 58 acres, 45 acres of which were within the corporate limits of the city of St. Louis, and the remainder across the line in St. Louis county.

The total amount of land appropriated by the state was .73 of an acre. The commissioners appointed by the court awarded defendant the sum of $560 as damages, to which report defendant filed its exceptions. In the trial of the case in the circuit court the evidence upon the issue of damages ranged all the way from testimony that defendant had actually been benefited over and in excess of its damage to testimony that its damage was as much as $31,500.

By its verdict the jury found that defendant was entitled to damages in the sum of $5,000. Plaintiff's motion for a new trial was thereupon filed, and in due course sustained by the court upon the ground of error in the giving of defendant's instruction No. 1 upon the measure of damages. From the order so entered, defendant has brought its appeal to this court by the usual steps.

The sole point involved in this appeal is the question of the propriety of the grant of a new trial upon the ground stated by the court in its order.

So much of defendant's instruction No. 1 which was held to be erroneous by the court was as follows: "Just compensation, or, in other words, the damages to which the defendant is entitled, is the value of the strip taken for road purposes plus the difference between the fair market value of defendant's property immediately before the appropriation of the same and immediately after the appropriation, less the special benefits, if any, accruing to the tract of land belonging to the defendant."

It will be observed that this instruction allowed the assessment of double damages, in that it provided for a recovery by defendant measured by the value of the land actually taken, plus the difference between the fair market value of the property immediately before and after the appropriation, less the special benefits accruing by reason of the improvement. Obviously, under such rule, the value of the land actually taken would necessarily be twice considered by the jury, once as a specific item of damage, and again as its appropriation lessened the value of defendant's entire tract.

Defendant's counsel frankly concedes the error in the instruction, the correct rule (if it is to be stated in the form attempted by defendant) being that the landowner is entitled to recover the value of the land actually taken, plus the damage, if any, to the remainder of the tract of which that taken formed a part, less, of course, the special benefits, if any, accruing in consequence of the improvement. Incidentally such correct rule was stated to the jury in plaintiff's instruction No. 2, which was the only other instruction in the case upon the measure of damages proper. Certain of the other instructions which dealt with the subject of benefits both general and special are casually adverted to in the briefs, but as we view the situation they can have no bearing upon the question of the error in the giving of defendant's instruction No. 1, and hence need not be further considered.

Now conceding the incorrectness of its own instruction as we have already pointed out, defendant seeks to have us hold that a new trial was nevertheless improvidently granted; its contention being that all the instructions in the case were to be read together by the jury, and that when so read and considered the error in its own instruction No. 1 was cured by the correct pronouncement of the law to be found in plaintiff...