State v. Williams

• Court: Missouri Court of Appeals
• Writing for the Court: Bailey
• Citation: State v. Williams, 69 S.W.2d 970 (Mo. App. 1934)
• Decision Date: 20 February 1934
• Docket Number: No. 5313.,5313.
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION v. WILLIAMS et al.

69 S.W.2d 970

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

No. 5313.

Springfield Court of Appeals. Missouri.

February 20, 1934.

Rehearing Denied April 3, 1934.

Appeal from Circuit Court, Stone County; Robert L. Gideon, Judge.

"Not to be published in State Reports."

Proceeding by the State, on the relation of the State Highway Commission, against J. D. Williams and others for condemnation of certain lands for right of way. From the judgment assessing damages, relator appeals.

Reversed and remanded.

Louis V. Stigall and Wilkie B. Cunnyngham, both of Jefferson City, for appellant.

McNatt & McPherson, of Aurora, for respondents.

BAILEY, Judge.

The Missouri state highway commission filed a petition for the condemnation of certain lands in Barry county to secure the right of way for supplemental state highway SC Barry county, and in that petition was included a right of way across defendants' lands. Commissioners were appointed in due time, qualified, and made their report allowing defendants damages in the sum of $336.50. Defendants thereupon filed their exceptions to the report of the commissioners, and the case was set down for trial by jury. Thereafter defendants applied for a change of venue from Barry county, which was granted, and the cause was transferred to Stone county. There a trial was had which resulted in a verdict for defendants assessing his damages in the sum of $700. From this judgment plaintiff has appealed.

The record shows that defendants J. D. Williams and his wife owned a farm of about 300 acres through which the highway in question was condemned. There was an old county road running through the Williams land on approximately the same location as the new state highway. This old road started on a hill at the southwest corner of the farm, ran down the hill between defendants' house on the south and their barn and other buildings on the north, and continued in a northeasterly direction across the farm to the town of McDowell. The new location followed the old, except that sharp angle turns were changed into rounded curves and a bend in the old road was taken out. The new road was also wider than the old, and it was necessary to move a granary on the house side of the highway. It is unnecessary to set forth the evidence in regard to damages, since there was substantial evidence to support the verdict which would therefore be binding on appeal.

Error is assigned in the giving of defendants' instruction No. 2, which reads as follows: "The court instructs the jury that in estimating the damages to the land in controversy, the jury will consider the quantity and value of the land taken for highway right-of-way and borrow pits, 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."

It is urged against this instruction that it assumed defendants' land was damaged and that it improperly defined special benefits, and that the giving of such an instruction constitutes reversible error, where the question of damages to the tract as a whole is a controverted issue in the case. Instructions in highway condemnation cases, framed in almost the identical language as the instruction in this case, have been condemned a number of times by the appellate courts of this state, including this court, in assuming the land as a whole was damaged. State ex rel. State Highway Commission v. Riggs, 226 Mo. App. 1053, 47 S.W.(2d) 178; State ex rel. Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.(2d) 338; State ex rel. Highway Commission v. Duncan, 323 Mo. 339, 19 S.W.(2d) 465; State ex rel. Highway Com. v. Young, 324 Mo. 277, 23 S.W.(2d) 130; State ex rel. State Highway Com. v. Thayer et al. (Mo. App.) 62 S.W.(2d) 938.

Defendants agree that the rule is as above stated, but contend that, where it is conceded by the pleadings and the evidence offered by plaintiffs that defendants' lands are damaged and the only question is whether or not there are any special benefits, and, if so, whether they equal or exceed the damages, it is not error to give an instruction assuming damages, citing State ex rel. v. Haid (Mo. Sup.) 59 S.W.(2d) 1057, and other cases. We considered the difference in an instruction which merely assumed defendant damaged by reason of the taking of certain land and an instruction which assumed damages to the tract as a whole after the taking, in the Thayer Case, supra. It must be conceded that the taking of any land would constitute some damage, but that does not authorize the giving of an instruction which assumes defendants are entitled to damages to the tract remaining by reason of the taking, or that defendants are entitled to net damages in some amount. The instruction here does so assume. There was evidence both ways on the question of damages, and it was certainly a controverted issue in the case. Nor do we think the petition can be construed as admitting that defendants were entitled to damages to the tract remaining. The petition recited that plaintiff had been unable "to agree with the owners upon the proper compensation to be paid for such land, or the interest therein which plaintiff sought to acquire, although plaintiff had in good faith endeavored and tried to agree." Under the provisions of section 1340, R. S. Mo. 1929 (Mo. St. Ann. § 1340, p. 1533), it must appear from the record that plaintiff and defendant are unable to agree upon the compensation for the taking of land in order to confer jurisdiction on the court. It being a jurisdictional fact, it should be pleaded. U. S. v. Reed, 56 Mo. 565; Ells v. Pacific Ry., 51 Mo. 200; Kansas City, St. J. & C. B. R. R. Co. v. Campbell et al., 62 Mo. 585.

We can perceive no sound reason for holding that, when a plaintiff pleads a jurisdictional fact, as here, he is thereby estopped from claiming a right to controvert the most important question in a condemnation case; i. e., whether or not defendant is entitled to any damages over and above the benefits received, if any. The evidence in this case shows a sharp conflict in the evidence on that question, and it was surely error for the instruction complained of to assume defendants were damaged.

The instruction also seems to have followed the old railroad cases in its definition of special benefits. Quincy, M. & P. R. Co. v. Ridge, 57 Mo. loc. cit. 601. That there is a distinction between the rule announced in railroad condemnation cases and the highway right of way cases has been pointed out by our Supreme Court in the case of State ex rel. v. Duncan, 323 Mo. 339, 19 S.W.(2d) 465, loc. cit. 467, where it is said: "On authority of the Jones Case, supra , 15 S.W.(2d) 338, we held above that respondent's Instruction No. 1 erred in declaring special benefits must be `peculiar to the tract itself. In so ruling we did not overlook the fact that the instruction substantially follows a form approved in McReynolds v. Kansas...