The School District of Kansas City v. Phoenix Land & Improvement Company

• Decision Date: 23 February 1923
• Citation: 249 S.W. 51,297 Mo. 332
• Parties: THE SCHOOL DISTRICT OF KANSAS CITY v. PHOENIX LAND & IMPROVEMENT COMPANY, Appellant
• Court: Missouri Supreme Court

249 S.W. 51

297 Mo. 332

THE SCHOOL DISTRICT OF KANSAS CITY v. PHOENIX LAND & IMPROVEMENT COMPANY, Appellant

Supreme Court of Missouri, Second Division

February 23, 1923

Appeal from Jackson Circuit Court. -- Hon Thomas B. Buckner, Judge.

Reversed and remanded.

Cooper Ned & Wright and Wallace Sutherland for appellant.

(1) The court erred in admitting the testimony of H. F. McElroy, who was one of the commissioners, concerning the report of the commissioners, and in allowing the jury to be informed that the valuation he placed upon the property as a witness in the case was the same valuation placed upon the property by the commissioners. Mo. Const. art. 12, sec. 4; Lewis on Eminent Domain (2 Ed.) sec. 449; St. L. K. & N.W. Ry. Co. v Clark, 119 Mo. 357; State ex rel. v. Fort, 180 Mo. 97; Railroad v. Roberts, 187 Mo. 319; Railroad v. Pfau, 212 Mo. 412; Railroad v Second Street Imp. Co., 256 Mo. 420. (2) The court erred in allowing plaintiff to introduce on the question of value evidence regarding dissimilar lands and tracts widely and remotely situated. 40 Cyc. 2499; St. L. O. H. & C. Ry. Co. v. Fowler, 142 Mo. 678; Hewitt v. Price, 204 Mo. 47; Railroad v. MacAdaras, 257 Mo. 470; Drexler v. Borough of Braddock, 238 Pa. 376. (3) The court erred in refusing to allow defendant to show all of the damages which it will sustain in consequence of the establishment, erection and maintenance of the proposed public school building, with particular reference to defendant's adjacent lands, constituting a part of one entire tract used in conjunction and in common with the tract sought to be taken. Mo. Constitution, art. 2, sec. 21; Secs. 1791, 11143, R.S. 1919; 10 R. C. L. 157; Nichols on Eminent Domain (2 Ed.) sec. 237; West Chicago Park Commrs. v. Boal, 232 Ill. 248; Union Elev. Co. v. K. C. Sub. Belt. Ry. Co., 135 Mo. 365; Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582; Chicago S. F. & C. Ry. Co. v. McGrew, 104 Mo. 282; Railroad v. Norcross, 137 Mo. 415; Railroad v. Real Estate Co., 204 Mo. 565; Railroad v. Realty & Inv. Co., 205 Mo. 167. (4) The court erred in giving instruction numbered 1 and in refusing to give instructions numbered 4, 5, 6 and 7, requested by defendant. Authorities under Point 3. (5) The court erred in refusing to instruct the jury as to the form of their verdict as requested by the defendant, and in furnishing to the jury an erroneous form of verdict. Authorities under Point 3. (6) The court erred in holding that the burden of proof was on defendant. Mo. Constitution, art. 12, sec. 4; Railroad v. Woodard, 193 Mo. 601; Railroad v. Pfau, 212 Mo. 398, 410; Railroad v. Wyatt, 223 Mo. 347, 354. (7) The plaintiff must be held to a strict compliance with the legal provisions authorizing the condemnation proceeding. 7 Cyc. Pl. & Prac. 468; Schaffner v. St. Louis, 31 Mo. 272; Orrick School Dist. v. Dorton, 125 Mo. 439; St. Louis v. Glasgow, 254 Mo. 272.

Edwin C. Meservey for respondent.

(1) No error was committed by the court in admitting the testimony of the Commissioner McElroy. City of St. Louis v. Abeln, 170 Mo. 318; Railroad v. Fowler, 113 Mo. 458; Railway v. Stewart, 201 Mo. 497. (2) The court did not err in refusing to sustain appellant's objections to the evidence regarding the value of similar lands and tracts. 22 C. J. 760; In re Forsythe Boulevard, 127 Mo. 417; Railway Co. v. Clark, 121 Mo. 169; State v. Meysenburg, 171 Mo. 63; Concordia Cemetery Assn. v. Ry. Co., 121 Ill. 199; Pierce v. Boston, 164 Mass. 92; Chicago Ry. Co. v. Emery, 51 Kan. 16; Sec. 1417, R.S. 1919; Skinner v. Steifel, 55 Mo.App. 12; Bergfeld v. Dunham, 201 S.W. 440. (3) No evidence was introduced tending to prove that the land condemned constituted a part of an entire lot or tract of land. 20 C. J. 737; Railroad v. Aubuchon, 199 Mo. 352, 9 L. R. A. (N. S.) 426; Kennebec Water Dist. v. Waterville, 97 Me. 185, 60 L. R. A. 856; Sharpe v. United States, 191 U.S. 341, 57 L. R. A. 932; Sultan W. & P. Co. v. Lumber Co., 31 Wash. 558; United State v. Honolulu Plantation Co., 122 F. 581; Van DeVere v. Kansas City, 107 Mo. 83; Glasgow v. St. Louis, 107 Mo. 198; Gorman v. Railroad, 255 Mo. 483; Peters v. Buckner, 232 S.W. 1024; St. Louis & C. Ry. Co. v. Knapp-Stout & Co., 160 Mo. 396; Mississippi River Bridge Co. v. Ring, 58 Mo. 491; Perry v. Wichita Falls, 238 S.W. 276. (4) There was no error in the refusal of the court to give appellant's instructions numbered 4, 5, 6 and 7. Authorities under Point 3. (5) There was no error in the refusal of the court to give appellant's instruction as to the form of verdict. Authorities under Point 3. (6) The court did not err in holding that as the defendant filed exceptions to the report of the commissioners and demanded a jury, the burden was upon the defendant, and that the defendant had the right to open and close the case. Railroad Company v. Blechle, 234 Mo. 471; McDonald v. Redemeyer, 197 Mo.App. 635; Machine Company v. Blair, 181 Mo.App. 601; St. Louis v. Donovan, 149 Mo. 93; St. Louis v. North, 31 Mo.App. 345.

RAILEY, C. Davis and Higbee, CC., concur.

OPINION

RAILEY, C. --

This is a condemnation proceeding by plaintiff, the School District of Kansas City, Missouri, to acquire a site for a high school in said city. The proceeding is under Section 11143, Revised Statutes 1919, which provides that the procedure is governed by the statute relating to the condemnation of land for railroad purposes. The plaintiff sought to condemn fifty-three separate lots of land in "The Highlands," a platted addition within the corporate limits of Kansas City, Missouri. As originally platted, the addition consisted of eighty acres, which were by the plat subdivided into blocks, lots and streets, the number of lots being approximately four hundred. The defendant is a Missouri corporation, engaged in the business of purchasing and subdividing large tracts of land and improving the same by building residences thereon for sale to home owners.

About fifteen years before the institution of this suit, defendant purchased the eighty acres aforesaid, and built residences on about one-half of the residence lots and sold them. The school site embraces fifty-three of these lots, which are a part of eighty-four lots in one tract still owned by defendant, separated only by streets which were laid out and improved by appellant. Of the fifty-three lots condemned, thirty-two of them are in one block, and twenty-one in another block. Appellant owns none of the other lots in either of the two blocks aforesaid under condemnation, it having improved and sold thirteen, as separate lots, prior to the institution of this proceeding. Appellant owns a number of other lots in the same addition. Sixteen of these lots are in one block across the street and south of the land condemned, and fourteen lots are across the street and west of the land condemned. There is also another lot fronting on 49th Street, a block south of the land condemned. The eighty-four lots still owned by defendant have never been offered for sale as lots. Appellant has its own architect and workmen; and at the time of the institution of this proceeding, its plans were completed to continue building upon and improving the entire tract, embracing eighty-four lots, the same as it had previously built upon the near and adjacent property, and in so doing it would utilize the rock and surplus dirt, thus carrying out and conforming to the original plan of improving and developing the entire addition as a whole, irrespective of lot lines or lot arrangement.

H. F. McElroy, Walter M. Knoop and Ralph T. Edgar were appointed commissioners and reported the value of the property taken at $ 41,950. No other element of damage was considered by the commissioners. Thereupon defendant demanded a jury trial, and the case was tried before a jury, which assessed the value of the land take at $ 40,385.80, free and clear of all encumbrances and taxes. No other element of damage was considered by the jury. At the outset, the trial court held that the burden of proof rested upon the defendant land owner, and directed that it assume such burden and introduce its testimony before the plaintiff.

On May 21, 1921, the jury returned a verdict for $ 40,385.80, and judgment was entered June 3, 1921. Motions for a new trial and in arrest of judgment having been filed and overruled, the cause was duly appealed by defendant to this court.

I. It is contended by appellant that, as Hugh F. McElroy was one of the commissioners who assessed the damages sustained by defendant, he was an incompetent witness before the jury in this proceeding.

In St. Louis v. Abeln, 170 Mo. l. c. 318 at 326, 70 S.W. 708, the Supreme Court had under consideration, in a condemnation suit, the question as to whether certain exceptions to the report of the commissioners in assessing damages should be sustained or set aside. On the hearing of these exceptions in the circuit court, two of the above commissioners who joined in the report, over the objection of appellant in said cause, were permitted to testify as witnesses in behalf of plaintiff. Valliant, J., in passing upon this subject, said:

"We see no reason why the commissioners are not competent witnesses in such case. There is no statute disqualifying them, and no principle violated in allowing them to testify. The court in considering exceptions would often be in the dark as to the theory on which the commissioners proceeded if they were not examined as witnesses."

We are of the opinion that Mr. McElroy was a competent witness in this case, but the fact that he was one of the commissioners who had assessed the damages sustained by defendant should not have been permitted, either directly or indirectly, to go to the jury.

II. When the court awarded defendant a trial...