State v. Jones

• Citation: 15 S.W.2d 338
• Decision Date: 28 February 1929
• Docket Number: No. 26236.,26236.
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION v. JONES et al.
• Court: United States State Supreme Court of Missouri

15 S.W.2d 338

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

No. 26236.

Supreme Court of Missouri, in Banc.

February 28, 1929.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Proceeding by the State, at the relation of the State Highway Commission, against Junie E. Jones and W. Z. Jones to condemn a right of way for a state highway on the land of W. Z. Jones. From the award of damages, the Highway Commission appeals. Pending the appeal, W. Z. Jones died, and the cause was revived in the name of his executrix, Junie E. Jones. Reversed and remanded.

Edgar Shook, A. M. Meyer, and Franklin Boyer, all of Jefferson City, for appellant.

Gresham & Gresham, of Platte City, and Eastin & McNeely, of St. Joseph, for respondent.

RAGLAND, J.

This proceeding was commenced in Platte county by the State Highway Commission for the purpose of condemning a right of way for State Highway No. 1, across the land of W. Z. Jones. The cause eventually found its way to the circuit court of Buchanan county on change of venue. On a trial to a jury in that court, Jones, the defendant, was awarded damages in the sum of $1,800. From such award the Highway Commission in due course perfected this appeal. Pending the appeal Jones has died, and the cause has been revived in the name of his executrix.

Jones owned a farm in Platte county consisting of 4 quarter sections lying in the form of a square, except for 80 acres, the east half of the northeast quarter—560 acres in a contiguous body. The strip appropriated for the right of way was 60 feet in width and extended from the middle point of his south boundary northwestwardly, thereby cutting off from the main body of his land, at the southwest corner, a triangular tract of approximately 120 acres. All of the improvements, dwelling, barn, etc., and running spring sufficient to serve with water the whole farm, if employed in stock-raising, were on the larger tract, and so cut off from the smaller tract by the proposed road. About 6 acres of land were taken for the right of way.

The road for which the right of way was condemned was a primary state highway, traversing the state from its northern boundary south through St. Joseph and Kansas City to its southern boundary. The 60-foot roadway was to be graded and paved with the highest type concrete slab, 18 feet wide, and was to have bridges and culverts of reinforced concrete and steel; the estimated cost of the road, for right of way and construction, was $40,000 per mile. It has now been constructed in part and is known as United States Highway No. 71.

It seems that there were public roads along the south and west sides of Jones' land; they were roads of the old type, "dirt roads."

According to the estimates of the witnesses, the market value of Jones' land was from $150 to $250 an acre; Jones himself placed the value at the latter figure. As no ruling of the trial court touching the consideration by the jury of the value of the land taken and the damages to the remaining land by reason of such taking is called in question, there is no necessity for summarizing the evidence with respect to those matters. The controversy in this court hinges on a question relating to special benefits. As having a bearing thereon, there was substantial evidence tending to show that the market value of Jones' land would be increased from $10 to $25 an acre by reason of its being "on the road," its "frontage on the road," its "accessibility" to the road.

At defendant's instance the trial court gave to the jury the following instruction: "The court instructs the jury that in estimating damages growing out of the appropriation of defendant's land by the State Highway Department for a public road across said land, the jury should consider the quantity and the value of the land taken, and the damages, if any, to the tract of which it is a part, by reason of the road running through it, and from the sum of these should deduct the benefits, if any, peculiar alone to such tract arising from the running of the road through it, and by peculiar benefits is meant such benefits, as that land alone derives from the location of said road through it, as are not common to the other lands in the same neighborhood through which the road runs."

Another instruction given for defendant concluded as follows: "And from such sum as you may so find, if any, you should deduct the benefit, if any peculiar alone to such tract arising from the running of the road through it, and by peculiar benefits is meant such benefits as that land alone derives from the location of said road through it, as are not common to the other lands in the same neighborhood through which the road runs."

There were, of course, many other farms lying adjacent to the proposed road; it is obvious therefore that the instructions quoted, in limiting the benefits which could be deducted from the damages to those which were peculiar alone to Jones' land, in effect declared that as a matter of law frontage on the highway—immediate accessibility thereto —was not a special benefit. That is complained of as error.

I. Preliminary to a consideration of the specific question involved, the relation of special benefits to the just compensation to which the landowner is entitled where a part of his property is taken for a public use will be briefly noticed. That relation is indicated in a general way in an instruction which has been so frequently given and so uniformly approved in railroad condemnation proceedings as to become a classic. It is as follows: "In estimating the damages to the land in controversy, the jury will consider the quantity and value of the landed taken by the railroad company for a right of way and the damages to the whole tract by reason of the road running through it; and deduct from these amounts the benefits, if any, peculiar to the said tract of land, arising from the running of the road through the same. And by peculiar benefit to that land, is meant, such benefits as that land derives from the location of the road through it, as are not common to the other lands in the same neighborhood." Quincy, M. & P. R. Co. v. Ridge, 57 Mo. loc. cit. 601.

"General benefits," those accruing to the owners of property in a neighborhood or vicinity generally, are not deductible from the damages; to make such a deduction would be to require the landowner whose property is taken in part to liquidate his damages by contributing his share of the benefits which inure to the public as a whole. "Special benefits' stand on a different footing; they are such as accrue directly and proximately to the particular land remaining by reason of the construction of the public work on the part taken. Such benefits must, of course, be reflected in an increase in the market value of the land.

While there is often a contrariety of opinion as to whether the benefits in specific instances are general or special, the general distinction is well understood. "A general...