City of St. Louis v. Wabash Railroad

421 S.W.2d 302
CourtSupreme Court of Missouri
DecidedDecember 11, 1967
DocketNo. 52365
StatusPublished
Cited by7 cases

This text of 421 S.W.2d 302 (City of St. Louis v. Wabash Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of St. Louis v. Wabash Railroad, 421 S.W.2d 302 (Mo. 1967).

Opinion

DONNELLY, Judge.

This is a proceeding by the City of St. Louis to condemn land in the city for highway purposes. Appellants are owners of residential property facing Lindell Boulevard. On December 19, 1908, the Forest Park Land Company, for the use and benefit of said owners of said residential properties, and others, deeded to three trustees land generally north and to the rear of the residential properties. Under this deed, which relates to the “Catlin Tract,” and is recorded in Book 2191, Page 131 of the St. Louis Recorder’s office, easements were granted for the benefit of appellants, and others, for ingress and egress and for other purposes. The city seeks to take by condemnation: (1) fifty-two feet from the rear of the residential properties, (2) the trust property above-mentioned, and (3) other properties. The trust property is referred to by the parties as “Item 18,” and is the only property involved in this appeal.

On May 4, 1961, the Permanent Condemnation Commission filed its First Report awarding damages as to all parcels. Appellants filed exceptions to the awards made for the taking of fifty-two feet from the rear of their residential properties. These individual exceptions have not been tried. Also, exceptions were filed as to Item 18, the trust property.

On September 21, 1962, the following order was entered by the trial court:

“Pursuant to oral application of the parties, it is ordered by the Court in accordance with Section 510.180(2) R.S. 1949 that the issue of adequacy of the award of the commissioners for Parcel No. 18 be tried in advance of all other issues in this cause, and that said issue be separated from the remaining issues for trial, adjudication and appeal.”

[304]*304On December 27, 1962, the award as to Item 18 was held inadequate. On February 7, 1963, the Permanent Condemnation Commission filed its Second Report. Exceptions were filed and, on June 20, 1963, the award was again held inadequate. On February 14, 1964, the Permanent Condemnation Commission filed its Third Report, awarding damages in the amount of $43,-773.05 for the taking of Item 18. A trial without a jury was then held on the exceptions to the Third Report and the matter was taken under submission on October 21, 1965. On May 17, 1966, the trial court overruled the exceptions of all parties to the Third Report, and, on June 30, 1966, ordered the award as to Item 18 paid to the present trustees. Motions for new trial were filed and overruled, and appellants, owners of the residential properties, appealed.

Appellants asserted in their motion for new trial and contend on appeal that the award as to Item 18 is grossly inadequate and not supported by competent and substantial evidence.

In reviewing the adequacy of an award in condemnation, the “weight and credibility of the evidence is for the trial court. Appellate courts do not weigh conflicting evidence on appeal in condemnation cases. City of St. Louis v. Franklin Bk., 341 Mo. 913, 110 S.W.2d 734, 735 [1] ; City of St. Louis v. Pope, Mo.Sup., 121 S.W.2d 861, 863 [3]; City of St. Louis v. Franklin Bk., Mo.Sup., 107 S.W. 2d 3, 4 [3] (where respondent introduced no testimony). It is not the law that the commissioners’ report should be set aside unless supported by competent and substantial evidence at the hearing on the exceptions. The respondent may but is not required to introduce evidence in support of the report. ‘The report is presumptively valid and must stand until overthrown by sufficient competent evidence, and the burden was on the exceptor to overthrow it.’ The determination of whether the report is right or wrong is within the judicial discretion of the trial court, and appellate courts should not interfere unless the award is so grossly excessive or inadequate as to establish an abuse of discretion or ■ arbitrary action. City of St. Louis v. Franklin Bk., 341 Mo. 913, 110 S.W.2d 734, 736; City of St. Louis v. Rossi, 332 Mo. 498, 58 S.W.2d 965, 966 [1]; City of St. Louis v. Pope, Mo.Sup., 121 S.W.2d 861, 864 [4].” City of St. Louis v. Pandjiris Weldment Co., Mo.Sup., 270 S.W.2d 17, 20 [5, 6].

Competent evidence was elicited from an experienced real estate appraiser supporting the award of the Commission. The only testimony offered in opposition was that of one of the appellants who testified that they “valued * * * [their] easement in the * * * [Item 18 land] at $1.50 per square foot.” Appellants’ contention is without merit.

Appellants further asserted in their motion for new trial and contend by inference on appeal that the trial court “erred in failing to find, adjudge and decree that the aforesaid Defendants had property rights in the nature of easements in, over, upon and along land described in said Item 18 of the Commissioners’ Report by reason of a deed of record recorded in Book 2191, Page 131 of the St. Louis Recorder’s Office, that the City of St. Louis has taken said property rights and easements of the aforesaid Defendants without compensation, and that, therefore, the aforesaid Defendants have been damaged and that the taking of said property rights and easements in said described parcels of real estate constitute a taking of property without just compensation contrary to the provisions of Section 26, Article 1 of the Constitution of the State of Missouri and Amendment 5 to the Constitution of the United States: *

As a general rule, where there are different interests or estates in property taken by condemnation, the proper procedure is “to ascertain the entire compensation as though the property belonged [305]*305to one person and then apportion this sum among the different parties , according to their respective rights.” State ex rel. State Highway Commission v. Mahon, Mo.App., 350 S.W.2d 111, 113. This Court established the general rule, and recognized an exception thereto, in State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S.W.2d 80, at page 82, 69 A.L.R. 1256, as follows: “ * * * The aggregate values of all the particular interests and estates in a single parcel of land do not exceed the value of the property as a whole, which the state takes by paramount title for public use; when, therefore, that value is duly ascertained and paid in money to the owners of the various interests, or into court for them, constitutional requirements are fully complied with. The fund is substituted for the property taken. The fact that the owners of the constitutive interests may not agree as to the apportionment among themselves of the sum awarded is merely an incident growing out of such combined ownership for which the condemnor is in no way responsible. There may be instances in which, owing to exceptional circumstances, the damages to the various interests when added together exceed the value of the property as a whole; in such case the particular interests should of course be separately appraised, because the owner of each is entitled to be compensated in damages for the amount of his interest taken.”

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Bluebook (online)
421 S.W.2d 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-st-louis-v-wabash-railroad-mo-1967.