State v. Freehold Inv. Co.

• Decision Date: 22 August 1932
• Docket Number: No. 5082.,5082.
• Citation: 52 S.W.2d 577
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION v. FREEHOLD INV. CO.
• Court: Missouri Court of Appeals

52 S.W.2d 577

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

No. 5082.

Springfield Court of Appeals. Missouri.

August 22, 1932.

Rehearing Denied September 21, 1932.

Appeal from Circuit Court, Greene County; John Schmook, Judge.

Condemnation proceeding by the State, on the relation of the State Highway Commission of Missouri, against the Freehold Investment Company. From an order granting a new trial, plaintiff appeals.

Affirmed.

John W. Mather and Jean Paul Bradshaw, both of Jefferson City, and Guy D. Kirby, of Springfield, for appellant.

C. W. Hamlin, of Springfield, for respondent.

COX, P. J.

This is a proceeding by the state highway commission to condemn ten feet along the south side of a tract of land belonging to defendant. The chief value of this land is its value as a part of a rock quarry. On trial by jury in the circuit court, a verdict was returned for plaintiff with a finding also that defendant was not entitled to any damages. This verdict was set aside by the trial court and a new trial awarded because, as stated by the court in the order sustaining the motion for new trial, error was committed by the court in giving and refusing certain designated instructions. Plaintiff appealed.

Running east and west through the city of Springfield, near its north boundary, was a public street known as Kearney street. This street was sixty feet in width, unimproved and traveled very little. The state highway commission in routing Highway No. 66 through the city of Springfield, routed it over Kearney street. To do this and make it conform to the requirements of the law as to this highway, it was necessary to increase its width from sixty to eighty feet. This it did by condemning ten feet on each side of the original Kearney street. The ten feet on the north side of Kearney street was taken off the south side of defendant's land, and, as stated, the jury allowed defendant no damages. The state had improved the highway along Kearney street before the trial, and in doing so had laid a concrete slab twenty feet wide in the center of the eighty feet. This placed the concrete slab in what was Kearney street before it was taken over by the highway commission.

Defendant's evidence tended to show that, in order to work the rock quarry, it was necessary to do it by blasting the rock out of its place by large blasts, and, as a result, the rock blasted out would be largely in large chunks that would have to be broken by smaller blasts called "pop shots." That in doing this blasting, spalls, or small stones, would fly in every direction and some of them would fly over on the highway and of course would fly on Kearney street before the highway commission took it over. It was also shown by defendant that, after the concrete slab was laid, the blasting in the quarry, if it were operated, would likely cause damage to the slab of concrete laid in the highway; that converting Kearney street into an improved state highway with a concrete roadway would and did greatly increase the travel over said street and by reason of the great amount of travel there would be greater danger of injury to persons or property on the highway for which defendant would be held liable as well as the likelihood of injuring the concrete slab for which defendant might also be liable; that if defendant undertook to avoid injury, it would have to muffle its shots and make them smaller to prevent injury to the concrete and build a fence to protect travel on the highway and all this would make the operation of the quarry much more expensive and these items would reduce the market value of the quarry. Had Kearney street not been taken over and widened and improved but had been left in its original condition, there would have been no concrete slab to be injured and the danger of travel on the street would have been slight and for that reason the quarry was much more valuable before the street was taken over and improved by the highway commission than it was afterward. This evidence was objected to by plaintiff and the court overruled the objection. Later, the court recalled its ruling and sustained the objection and excluded the testimony from the consideration of the jury. When the instructions were given to the jury, instructions were given on the theory that this evidence was not admissible and that the danger to travelers on the highway and danger of injury to the concrete slab should not be considered by the jury in determining the question of damages to defendant for the taking of the ten feet strip of this land. The court sustained the motion for new trial on the ground that it was error to give these instructions and that error was also committed in refusing an instruction asked by defendant to...