Union Elec. Co. v. Saale

• Decision Date: 09 March 1964
• Docket Number: No. 50150,No. 2,50150,2
• Citation: 377 S.W.2d 427
• Parties: UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent, v. William C. SAALE, Appellant
• Court: Missouri Supreme Court

Page 427

377 S.W.2d 427

UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent, v. William C. SAALE, Appellant.

No. 50150.

Supreme Court of Missouri, Division No. 2.

March 9, 1964.

Opinion Modified on Court's Own Motion April 13, 1964.

Motion to Modify, for Rehearing or to Transfer to Court En

Banc Denied April 13, 1964.

N. Murry Edwards, St. Louis, Ninian M. Edwards, Clayton, B. Richards Creech, St. Charles, for appellant.

Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondent.

STOCKARD, Commissioner.

Plaintiff-respondent sought by condemnation to obtain from appellant-landowner the title to 127.24 acres of land in St. Charles County constituting a part of a tract of 134 acres upon which (with other land) respondent intends to erect a power plant with the necessary appurtenances for the generation and distribution of electric energy throughout its system. Both parties filed exceptions to the award of the commissioners, and a jury trial on the issue of damages resulted in a verdict of $98,688 in favor of appellant. The trial court sustained respondent's motion for a new trial, and appellant has appealed from that order.

The ground specified by the trial court for granting the new trial was that the court 'erred in the admission of defendant's evidence as to the value of the farm (which was zoned for agricultural use) for industrial use without evidence being offered that there was a reasonable likelihood or probability that the Zoning Order would be changed in the reasonably near future so as to permit its use for industrial purposes.' The trial court then stated that as the result of this erroneous action 'other errors followed,' giving some examples, but the determinative issue on this appeal is the correctness of the above ground for granting the new trial.

Prior to the taking by condemnation, the land in question was farm land being used solely for farming purposes. It is located approximately six miles from the city of West Alton, and fifteen miles from the city of St. Charles. Pursuant to Sections 64.510 to 64.690 (all statutory references are to RSMo 1959, V.A.M.S.,) St. Charles County adopted a 'county plan' for the zoning of certain areas of the county, including the land in question, and pursuant thereto the land had been and was at the time of the taking by condemnation zoned 'agricultural,' but the authorized uses of the areas so zoned included the establishment thereon of 'residential subdivisions,' according to the county zoning enforcement officer, and certain other activities by reason of Section 64.560. The authorized uses did not include industrial purposes generally. The record does not indicate that appellant had sought a change in the zoning classification of his land, and he does not challenge the validity of the zoning regulations.

In the course of the trial, over the objection of respondent, the trial court permitted appellant to introduce evidence in the form of the testimony of appellant and several expert witnesses to the effect that the highest and best use of appellant's land was for industrial purposes generally, and also to introduce evidence of the value of the land for that purpose. Appellant did not attempt to show a reasonable probability that the zoning regulations would in the reasonably near future be changed to permit such use.

'Just compensation' for the taking by condemnation of a part of a tract of land, Mo.Const.1945, Art. I Sec. 26, V.A.M.S., generally speaking, is the fair market value of the land actually taken, and the consequential damages, if any, to the remainder of the land caused by the taking. City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839; City of St. Louis v. Kisling Mo., 318 S.W.2d 221, 224. The fair market value of the land taken is what a reasonable buyer would give who was willing but did not have to purchase, and what a seller would take who was willing but did not have to sell. In re Armory Site in Kansas City, Mo., 282 S.W.2d 464; State ex rel. Board of Regents for Central Mo. State College v. Moriarty, Mo.App., 361 S.W.2d 133; 29 C.J.S. Eminent Domain Sec. 137. In the determination of what constitutes the fair market value the jury may consider uses of the land for which it is reasonably adapted or suited and for which it is available, having regard to the existing business wants of the community, or such as may be reasonable expected in the future. State of Missouri ex rel. State Highway Commission v. Williams, Mo., 289 S.W.2d 64. When the land is not available for a certain use by reason of a zoning restriction, its suitability or adaptability for such use may...