State v. Malone

• Decision Date: 11 January 1932
• Docket Number: No. 17334.,17334.
• Citation: 45 S.W.2d 84
• Parties: STATE ex rel. HIGHWAY COMMISSION v. MALONE et al.
• Court: Missouri Court of Appeals

45 S.W.2d 84

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

No. 17334.

Kansas City Court of Appeals. Missouri.

January 11, 1932.

Appeal from Circuit Court, Cass County; Ewing Cockrell, Judge.

"Not to be officially published."

Proceeding by the State, on the relation of the Highway Commission, to appropriate lands of J. H. Malone and another for a state highway. Judgment for defendants, and plaintiff appeals. Transferred from the Supreme Court .

Reversed and remanded.

John W. Mather and B. F. Boyer, both of Jefferson City, for appellant.

Roscoe C. Summers, of Harrisonville, for respondents.

BLAND, J.

This is a condemnation proceeding in which plaintiff is appropriating the lands of the defendants for a state highway. There was a verdict and judgment in favor of defendants in the sum of $1,000.00 and plaintiff has appealed.

The evidence shows that defendants own 72 acres of land south of and near the city of Harrisonville, in Cass county. The property condemned consists of a right of way 60 feet in width. Beginning at the northwest corner of defendants' farm, and along the west side thereof, the right of way follows an old road for about 500 feet. It then begins to curve gradually in a southeasterly direction into the farm. It leaves the farm at the latter's south line about mid-way between the east and west sides thereof. The right of way as it crosses the land divides the farm into two pieces, leaving seven acres in the southwest corner of the farm, on which are located the improvements, and the remainder of the land on the east or northeast side of the road. In all 2.94 acres of land is appropriated for the right of way. This includes about three-fourths of an acre which was in the old road theretofore used as a highway.

Plaintiff is also condemning a borrow pit, consisting of 19/100 of an acre (30×279 feet) situated in the northwest corner of the farm and adjacent to the old county road. In building the road this borrow pit was excavated for a depth of from three and one-half to four feet.

The sole issues at the trial were as to the value of the property taken and the damages done to the farm by the running of the road through it. Defendants' evidence tends to show that the damages are in excess of the benefits peculiar to the farm arising from the running of the road through the same. Plaintiff's evidence tends to show that the benefits exceed the damages.

Complaint is made of the giving of defendants' instruction No. 1, which reads as follows:

"The court instructs the jury that you should determine—

"1. Whether the State Highway in question increased the market value of exceptor's Malone's farm as a whole, and if so whether such increase was more than it increased the market value of lands in that community not touched by said highway.

"2. Whether such highway damages said farm as a whole.

"If you find that such market value, if any, is greater than such damages to the farm, if any, you will find nothing for exceptor.

"If you find that such damages to the farm, if any, are greater than such increased market value, if any, then you will find for exceptor for an amount equal to the excess of such damages over such increased market value, if any.

"In determining whether there have been damages to said farm you will consider the taking of the land for the road and borrow pits and its value, the necessity of building more fences and the cost of same, the damage, if any, of cutting off water supply from certain parts of the farm, the damage, if any, of making more difficult the access of certain parts of said farm, and the condition that the farm is left as a whole by such damage, if any.

"And in considering all such items of damage, if any, you should determine how much, if any, they depreciated the value of the farm as a whole."

We think that the court erred in refusing to give plaintiff's instruction D, submitting the matter of benefits, if any, to the farm by reason of a certain element of drainage that the tiling of the highway affords to the land not taken. The evidence in this connection shows that before the highway was constructed through the farm there were two springs in the hog-lot, creating about two acres of boggy land which remained in a wet condition about six weeks of the year. These springs are now in the center of the highway and most of this boggy land is within the right of way condemned, but there is a small amount of such land lying to the southeast of the highway which has been re-claimed, in a large manner, from its boggy condition by the tiling of the highway. The court refused plaintiff's instruction D on the ground that there was "no evidence or insufficient evidence" upon which to give it, but we think the court was...