Union Elec. Co. v. Mount

• Decision Date: 15 December 1964
• Docket Number: No. 31544,31544
• Citation: Union Elec. Co. v. Mount, 386 S.W.2d 126 (Mo. App. 1964)
• Parties: UNION ELECTRIC COMPANY, a Missouri Corporation, (Plaintiff) Respondent, v. M. J. MOUNT and Florence C. Mount, His Wife, (Defendants) Appellants.
• Court: Missouri Court of Appeals

Page 126

386 S.W.2d 126

UNION ELECTRIC COMPANY, a Missouri Corporation, (Plaintiff) Respondent, v. M. J. MOUNT and Florence C. Mount, His Wife, (Defendants) Appellants.

No. 31544.

St. Louis Court of Appeals, Missouri.

Dec. 15, 1964.

Motion for Rehearing or for Transfer to Supreme Court Denied

Jan. 8, 1965.

Application for Transfer Denied Feb. 8, 1965.

Roberts & Roberts, Raymond R. Roberts, Farmington, for defendants-appellants.

Schnapp, Cooper & Graham, J. B. Schnapp, Fredericktown, Thurman, Nixon & Smith, J. W. Thurman, Hillsboro, for plaintiff-respondent.

J. P. MORGAN, Special Commissioner.

This action was commenced by Union Electric Company, herein called plaintiff, to condemn a right-of-way easement 100 feet wide across land of defendants for the purpose of constructing and maintaining an electric transmission line. A jury trial on the issue of damages resulted in a verdict for defendants in the sum of $1000.00. Defendants have appealed.

Plaintiff has now filed a motion to dismiss the appeal alleging that defendants' brief fails to comply with Rule 83.05(c) of the Rules of Civil Procedure, V.A.M.R. in that the statement of facts is primarily a recitation of the testimony of each witness. Defendants contend, 'The evidence in this case, however, relevant to the issues of this appeal, is almost exclusively opinion and expert testimony * * * to lift such opinions out of context with the other statements of an expert witness, his qualifications, his knowledge of the facts and the cross-examination in order to make the ordinary statement is most misleading, unfair and meaningless.'

With the sole issue relating to damages and finding the statement does include all essential facts relevant to the appeal, the motion directed at the form and not the contents of the statement should be overruled and the appeal decided on its merits.

The evidence revealed that defendants owned the 180 acre tract in question. That the right-of-way easement ran 699 feet diagonally across the northwest corner. No poles or other structures were placed on the property and the transmission line was all 'overhang' at a minimum height of 48 feet consisting of three electrical lines with two wires protecting against lightning. From 1960 to 1962 a rock quarry had been operated on this land, but was now filled with water. The line is approximately 500 feet from the nearest edge of the quarry. A railroad track was located on the north edge of the property with a telephone line and a smaller electrical line along either side. The older electrical line was 400 feet north of the quarry and the telephone line 340 feet. Much of the land was in the soilbank and most of the testimony revolved around the effect, if any, the line might have on any possible future operation of the quarry.

Defendant (husband) charged the trial court erred in permitting plaintiff to cross-examine him concerning the assessed valuation of his farm lands, and that the error was compounded by allowing one Fred H. Long to testify what the assessed valuation actually was. At first blush, this assignment appears to have merit in that it is established that such evidence is irrelevant and incompetent, with a rather indefinite exception where the landowner has 'participated' in such assessment. The general rule is stated in 39 A.L.R.2d 230:

'Although, as previously indicated, assessed valuation, as such, is not generally admissible on the question of the value of property, an owner's valuation of his own property, or a valuation in which he has participated, for tax purposes, is usually held admissible in proceedings other than tax proceedings where the value of the property is in issue, in most instances on the ground that the owner's valuation constitutes an admission against interest, where he seeks to establish a higher value for a purpose other than taxation. * * *'

Our Supreme Court in Kansas City & G. Ry. Co. v. Hake, 331 Mo. 429, 53 S.W.2d 891, 892, 84 A.L.R. 1477, recognized such exception, to-wit.

'* * * If it can be shown that the landowner has himself placed a value on the property in question, whether for taxation or otherwise, or has in some way assented or even acquiesced in fixing the valuation, then such evidence might well be proper on cross-examination and as contradictory of such witness. * * *'

It is apparent from the record that plaintiff planned the hazardous approach of attempting to bring such evidence within the uncharted limitations of such exception. This effort being based on the fact that defendant landowner happened to be a Judge of the County Court and that by the provisions of Section 138.010 V.A.M.S., 1959, was automatically a member of the County Board of Equalization. Plaintiff in its brief sets out in detail the duties of such Board, but the following portions of the applicable statutes will suffice to show what tempted such adventurous trial strategy:

Section 138.030 'The board shall hear complaints and equalize the valuation and assessments upon all real and tangible personal property taxable by the county so that all the property shall be entered on the tax book at its true value. * * *' Section 138.050 'They shall raise the valuation of all tracts or parcels of land and all tangible personal property as in their opinion have been returned below their real value; * * *.'

The evidence does not show that the lands involved were ever a subject of decision by the Board or that defendant's assessment was not comparable to that of others in the county.

With the ultimate objective of the usual condemnation case being a determination of the difference between the fair market value of the property before and after the taking, it is difficult to justify any exception for purposes of impeachment or otherwise, which could only tend to mislead the jury. As stated in St. Louis Housing Authority v. Gordon, Mo.App., 382 S.W.2d 451, '* * * The objection to this evidence is that the value was for tax purposes and not its value on the market. It simply was not evidence of market value. * * *' Even if the exception is to be followed, it would appear that it should demand a more active 'participation' than that here charged to defendant.

However, plaintiff's argument that defendant did not object to this evidence necessitates extending this opinion to include all testimony relating to assessed value. (All objections, if any, being italicized.)

Defendant as witness:

'Q. Has there been any sickness or other reasons that's caused you to miss a performance of some of your duties?

'Mr. Roberts: If the Court please, I object to that for the reason it's immaterial, we're not trying to find out if Mr. Mount's been sick and missed his duties with the County Court, we're trying to find out how much Union Electric owes him for the land they're taking.

'Mr. Schnapp: If it please the Court, I believe we can hook it up and it'll come material.

'The Court: I don't know how, but I'll let you ask another question or two and see if you can.

'Q. Have you sir?

'Mr. Roberts: Well, go ahead, I'll withdraw the objection, let him go, Your Honor.

'A. Ask that question again.

'Q. Has any sickness or other reason caused you to miss the performance of some of your duties?

'Mr. Roberts: You mean as Judge of the County Court?

'Mr. Schnapp: Yes, as Judge of the County Court.

'A. No.

'Q. And you have discharged the duties of your office according to the laws of the State of Missouri?

'Mr. Roberts: Now, if the Court please, I'm certainly going to object to that, this man is not a lawyer.

'The Court: Objection will be sustained, if you want to make your offer of proof come up here.

'Mr. Schnapp: May I ask another question, Your Honor?

'The Court: All right.

'Q. Are you a member of the St. Francois County Board of Equalization?

'A. Yes, sir.

'Q. That Board of Equalization meets on the second Monday of July of each year?

'A. Yes, sir.

'Q. And have you attended those meetings?

'A. Yes, sir.

'Q. And St. Francois County Real Estate is assessed at 30% of its actual value?

'A. Well, now, we, no, no.

'Q. What is it assessed at, sir?

'A. Well, I believe the Tax Commission says we're 28 5/10.

'Q. All right, sir, that's what it's assessed at 28 5/10, did you ever advise the other members of the Board of Equalization that this 180 acres of land that you own was under assessed?

'A. No.

'Q. Did you ever advise the other members of the Board of Equalization that the assessed valuation of your 180 acre tract of land should be raised?

'A. No, sir.

'Q. And now I ask who this 180 acre tract of land, what is the assessed valuation for the year 1962?

'A. I wouldn't be able to tell you.

'Q. You don't know what the assessed valuation of your land is?

'A. No, it's assessed in two or three different particles and I wouldn't be able to tell you.

'Q. Can you total it up for us?

'A. I wouldn't be able to without my records.

'Q. If I told you the total assessed valuation on all your property was $5,000.00 would that seem right?

'A. I wouldn't know until I see my records.

'Q. Do you know how much your total tax bill was?

'A. Oh, it was a little less than $300.00.

'Q. Less than three hundred, how much less?

'A. Well, I don't remember, it was less than three hundred last year.

'Q. Do you know what your assessed valuation was for 1961?

'A. The same as it was in 1960.

'Q. And in, well, do you know how much it was in 1960?

'A. The same as it was in 1959.

'Q. Do you know what it was in '59?

'A. Same as it was in '58.

'Q. Do you know the amount of taxes you paid in any of those years?

'A. No, off hand, I do not.

'Q. If I told you your property was assessed at $4,000.00, would that sound right?

'A. I wouldn't know until I looked at my records.

'Mr. Roberts: When?

'Mr. Schnapp: For any of those years that he says is absolutely the same, do you have those records with you?

'A. No, sir.

'Q. In the event that this case last more than one day, will you produce those records tomorrow?

'A. Sure, yes, sir.

'Q. Would...