Zumalt v. Boone County, WD

• Decision Date: 30 January 1996
• Docket Number: No. WD,WD
• Citation: 921 S.W.2d 12
• Parties: A.K. and Virginia ZUMALT, Appellants, v. BOONE COUNTY, Missouri, Respondent. 50932.
• Court: Missouri Court of Appeals

Page 12

921 S.W.2d 12

A.K. and Virginia ZUMALT, Appellants, v. BOONE COUNTY, Missouri, Respondent.

No. WD 50932.

Missouri Court of Appeals Western District.

Jan. 30, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 30 and April 2, 1996.

Application to Transfer Denied May 28, 1996.

Thomas Michael Schneider, Columbia, for appellant.

Harold A. Walther, Columbia, for respondent.

Before FENNER, C.J., P.J., and ULRICH and SMITH, JJ.

SMITH, Judge.

Appellants, A.K. and Virginia Zumalt, appeal the trial court's judgment against them in their inverse condemnation action against Respondent Boone County, Missouri. At trial, appellants argued that Boone County's improper maintenance of two of its streets directly resulted in foundational damage to their home in violation of Article I, § 26 of the Missouri Constitution. After hearing the evidence, the trial court held that respondent was not liable for the damage to appellants' property.

We affirm.

Appellants own real estate on S. El Chapparel Avenue almost directly across the street from where it intersects Mesa Drive to form a T. Mesa Drive slopes downward towards S. El Chapparel Avenue and appellants' home. Both streets are public concrete streets, but neither was constructed by respondent. The primary street at issue, S. El Chapparel Avenue, was dedicated to respondent by the builder and developer of the street on September 25, 1979 and accepted for maintenance on May 13, 1980.

Approximately two years after purchasing their residence in 1988, appellants noticed that the foundation of their home was cracking. By 1992, appellants realized that foundational cracks were getting worse, and they contacted three contractors and the Boone County Public Works director to determine the source of the problem.

The court determined that "temperature changes ha[d] caused the concrete of Mesa Drive to expand and contract, and combined with the effect of gravity, Mesa Drive ha[d] pushed S. El Chapparel Avenue in a direction generally toward the Zumalts' residence," yet the street has always remained within its right of way and did not invade appellants' property. As S. El Chapparel moved towards appellants' residence, the street pushed appellants' concrete driveway into their home, thus causing the foundational damage. Uncontroverted evidence from an appraiser established that the damage to appellants' home decreased its value by $5,000.

After determining the cause of the problem, appellants installed an expansion joint in their driveway in an effort to stop further damage. After this joint closed, appellants installed a second joint. This second joint appears to have halted further damage.

Appellants assert one point on appeal wherein they contend that the trial court erred in finding that inverse condemnation did not occur. In subparagraphs A--D of Point I respectively, appellants allege specific error by the trial court as to findings 13 and 15 and conclusions G and F of the trial court's Findings of Fact and Conclusions of Law. ¹ Appellants claim that finding 13 and conclusion F were not supported by substantial and competent evidence and the trial court misapplied the law as to finding 15 and conclusion G. Appellants do not contest conclusions A or B. In A, the trial court concluded that appellants' claim was based on nuisance in that the damages claimed were incident to the county maintaining a public street entirely on county property without invading appellants' property. From A, the trial court concluded in B that in order "[t]o prevail, the Zumalts must establish that Boone County's maintenance of Mesa Drive and S. El Chapparel Avenue constitutes the maintenance of a nuisance," citing Green Acres Land & Cattle Co. v. State, 766 S.W.2d 649, 651 (Mo.App.1988).

Appellate review of a court-tried civil case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Cunningham v. Hughes, 889 S.W.2d 864, 866 (Mo.App.1994). The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

Appellants' claim is based on Article I, § 26 of the Missouri Constitution, which provides that "private property shall not be 'taken or damaged for public use ' without just compensation." (emphasis added). Missouri courts have held that this provision is "self-enforcing" and that an action such as this one may be brought directly under it. Roth v. State Highway Comm'n of Missouri, 688 S.W.2d 775, 776 (Mo.App.1984). As a political subdivision of the State of Missouri, respondent is imbued by statute with the power of eminent domain for street purposes and, as such, a claim for inverse condemnation may be brought against it. Green Acres, 766 S.W.2d at 651.

"To state a claim for inverse condemnation, a plaintiff must allege his property was taken or damaged by the state for public use without just compensation. The landowner does not have to show an actual physical taking of property, but must plead and prove 'an invasion or an appropriation of some valuable property right which the landowner has to the legal and proper use of his property which invasion or appropriation ... directly and specially affect[s] the landowner to his injury.' " Harris v. Missouri Dep't of Conservation, 755 S.W.2d 726, 729 (Mo.App.1988) (citations omitted).

In this case, appellants chose not to proceed in tort, but to seek recovery pursuant to inverse condemnation. To support their claim, they contend the foundation of their home was damaged by the movement of S. El Chapparel Avenue and Mesa Drive (hereinafter "street creep"), against their driveway. They further contend the damage would not have occurred if respondent had properly maintained the streets by installing an expansion joint between the appellants' driveway and S. El Chapparel Avenue. There is nothing in the record to indicate when the streets and driveway were constructed. Appellants contend such evidence was not relevant or necessary to their claim in that, once the streets were dedicated and accepted for public use, respondent was required to properly maintain it, including installing expansion joints. In support of their claim, appellants rely on Mattingly v. St. Louis County, 569 S.W.2d 251, 252 (Mo.App.1978). Appellants' reliance is misplaced.

In light of their failure to contest conclusions A and B, appellants' reliance on Mattingly is curious in that although it was an inverse condemnation case, the claim there was not predicated on nuisance. In fact, Mattingly could be cited for the proposition that nuisance is not the exclusive basis for maintaining a claim for inverse condemnation in factual situations presented by the case at bar. Regardless, Mattingly is distinguishable and not controlling here in that it involved the construction of a public roadway, not failed maintenance as alleged in this case. The issue presented on appeal in Mattingly was the sufficiency of plaintiff's petition. The plaintiff alleged that damage resulted when the county excavated dirt wholly on county property in such a way that it removed the lateral support for plaintiff's property which abutted. Under those circumstances, the court held that a cause of action for inverse condemnation could be maintained.

Appellants cite no specific authority that supports their position that failed maintenance of a public street under ...