State v. Esselman

• Court: Missouri Court of Appeals
• Writing for the Court: Sutton
• Citation: State v. Esselman, 179 S.W.2d 749 (Mo. App. 1944)
• Decision Date: 02 May 1944
• Docket Number: No. 26322.,26322.
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION v. ESSELMAN et al.

179 S.W.2d 749

STATE ex rel. STATE HIGHWAY COMMISSION v. ESSELMAN et al.

No. 26322.

St. Louis Court of Appeals. Missouri.

May 2, 1944.

Appeal from Court of Common Pleas, Cape Girardeau County; J. Henry Caruthers, Judge.

"Not to be reported in State Reports."

Action in eminent domain by the State of Missouri, on the relation of the State Highway Commission of Missouri, against A. N. Esselman and another, wherein plaintiff and defendants filed exceptions to the Commissioner's report asking for a jury trial. On plaintiff's application, a change of venue was granted and trial with a jury resulted in a verdict for defendants, and from the judgment given accordingly the plaintiff appeals.

Reversed and remanded.

Raymond G. Barnett, of Jefferson City, A. M. Spradling, of Cape Girardeau, and Wallace Wilson, of Jefferson City, for appellant.

J. Grant Frye, of Cape Girardeau, for respondent.

SUTTON, Commissioner.

This is an action in eminent domain instituted by plaintiff in the Circuit Court of Perry County, by the filing of a petition for the condemnation of 2.42 acres of land for a right of way across defendants' farm for the construction of a highway, the project being a relocation of highway 51 to connect with a new bridge across the Mississippi river, known as the Chester bridge. The Missouri terminus of the bridge is located about a mile above the town of Claryville, which is across the river from Chester, Illinois.

The record title of the defendants shows a deed to a tract of 100.33 acres lying near the river in a rectangular shape 48 rods wide north and south and about a mile in length east and west. There is a levee running north and south at the east end of the tract. There is a gravel public road along the east side of the levee. Defendants also claim to own seven acres of accretion land lying between the levee and the river.

The buildings on the farm are all at the east end of the farm west of the levee. Before the construction of the new highway the western half of the farm was split by a drainage ditch crossing the farm at an angle. The right of way of the highway is 120 feet wide. It crosses at about the middle of the farm at an angle of 45 degrees. The farm lies in flat bottom land known as Bois Bruele Bottoms. The farm is used exclusively for agricultural purposes, and is not fenced. At the time of the trial the highway was in an unfinished state and construction was still in progress. The preliminary grading for the roadbed was not entirely finished, nor were the highway ditches, and none of the concrete pavement had been laid. The roadbed as it was graded up at the time of the trial was approximately one to three feet above the elevation of the land on each side, with slight slopes from the shoulders.

Commissioners, duly appointed, made their report, awarding defendants $863 as damages, and both plaintiff and defendants filed exceptions asking for a jury trial.

On plaintiff's application, a change of venue was granted, and the cause was sent to the Cape Girardeau Court of Common Pleas.

The trial, with a jury, resulted in a verdict in favor of defendants for $1600 as damage. Judgment was given accordingly, and plaintiff appeals.

The western terminus of the Chester bridge is some distance north of the north boundary of defendants' land. Rhodes owns a narrow strip of land bordering defendants' land on the north. Bordering the Rhodes land on the north is a strip of land known as the Principia land. Devenyns owns the land bordering on the south of defendants' land. Claryville is about a thousand feet south of the south line of defendants' land. The new highway runs from the west terminus of the Chester bridge across the Principia land, the Rhodes land, the Esselman land, and the Devenyns land, and then on south about fourteen miles to Perryville.

The entire land between the levee and the river was formed by accretion. The general slope of the land in that vicinity, including defendants' land, is southwesterly from the levee. About 50 acres of defendants' land lies between the levee and the highway, about 21 acres between the highway and the drainage ditch, and about 24 acres west of the drainage ditch. Before the construction of the highway grade defendants' land west of the levee had good drainage, the water flowing back west to the drainage ditch. The surface water from the Principia and Rhodes lands flowed back over their lands to the drainage ditch. There were ditches on defendants' land running west into the drainage ditch. There are only two culverts under the highway in the vicinity of defendants' land. One of these is at the south line and the other at the north line of defendants' land.

There was testimony for the defendants that these culverts under the highway were too high; that they were slightly higher than the general surface of the land.

However, an engineer of the highway department testified that the highway ditches will be lower than the surrounding land when they are completed; that when the highway is finally completed the culverts will be lower than the bottom of the ditch; that the construction of the highway will make the drainage condition as good as before on the east side of the highway and better on the west side; that when the road is completed it will have a surface of concrete twenty-two feet wide.

The defendants' witnesses in the main put the damage to defendants' land at $25 per acre to the tract as a whole, including damage to the seven acres of accretion. One of the witnesses put the damage at $1500 to $2,000.

Plaintiff's witnesses found the farm as a whole not damaged at all.

The soil of the farm is very fertile, producing annually four or five cuttings of alfalfa, thirty-five bushels of wheat per acre, seventy-five to eighty bushels of corn per acre, and forty bushels of barley per acre.

Testimony as to inconvenience in the use of the land on account of the highway cutting across the land, the crossing of the highway with farm machinery and tools, and also as to the cutting of the land into irregular and additional tracts, and the lack of any special benefit to the land, was given by defendants' witnesses.

There was testimony also on behalf of the defendants to the effect that the construction of the roadbed of the highway will obstruct the drainage of the water from east to west and cause the water to overflow and linger on the land between the levee and the highway.

The seven-acre tract of land outside the levee is not described in defendants' deed, nor is it described or referred to in plaintiff's...