D & H Prescription Drug Co. v. City of Columbia

977 S.W.2d 515, 1998 Mo. App. LEXIS 1804, 1998 WL 726646
CourtMissouri Court of Appeals
DecidedOctober 20, 1998
DocketNo. WD 55069
StatusPublished

This text of 977 S.W.2d 515 (D & H Prescription Drug Co. v. City of Columbia) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D & H Prescription Drug Co. v. City of Columbia, 977 S.W.2d 515, 1998 Mo. App. LEXIS 1804, 1998 WL 726646 (Mo. Ct. App. 1998).

Opinion

HANNA, Judge.

D & H Prescription Drag Co., Inc. (D & H) appeals from the judgment of the circuit court of Boone County rendered in favor of the City of Columbia on all counts of D & H’s petition for damages for inverse condemnation. The case was tried to the court on June 30 and September 9, 1997. The trial court made findings of fact and conclusions of law and entered its judgment on October 16, 1997.

D & H has a commercial drug store located at the intersection of West Boulevard and West Broadway in Columbia. On October 2, 1989, the City adopted a resolution declaring the necessity for street redesign and construction at that intersection. D & H Investments, a partnership comprised of the same individuals who own D & H, leases the land and the building to D & H.

On March 18, 1991, the City adopted an ordinance declaring the need to acquire: (1) certain land for permanent street easements; and (2) a temporary construction easement from D & H Investments. D & H Investments granted the City a temporary con[516]*516struction easement and later granted the City an easement for street purposes. D & H Investments was compensated by the City in the amount of ISOOO.1

Subsequently, the City contracted for the reconstruction of the intersection to take ' place from May to October 1993. The City’s construction contract with the contractor specifically required:

Access to D & H Drugstore located on the northwest corner ... of the intersection shall be maintained at all times from either West Boulevard or West Broadway. To accomplish this the contract shall complete all work on West Broadway and open it to through traffic before removing the pavement on and commencing work on West Boulevard.

During the five months of reconstruction, D & H contends that it suffered a temporary change in customer shopping patterns, a loss of direct sales revenue, and an expenditure of additional advertising costs during the period of reconstruction. As a result, in August 1994, D & H filed a petition for damages against the City of Columbia alleging inverse condemnation and violations of 42 U.S.C. § 1983.

The trial court made a number of rulings consistent with its judgment that D & H did not state an actionable claim for inverse condemnation.2 Although D & H challenges each decision, points one and two of its brief are dispositive. D & H argues that the trial court erred in its ruling that D & H had not stated a “recognized or actionable claim for inverse condemnation,” as it could not prove a compensable taking under the facts or existing law. D & H contends, however, that an actionable claim for inverse condemnation is stated since the facts showed a “material impairment of access,” rather than a “diversion or rerouting of traffic.”

In a court-tried case, the judgment is to be affirmed unless substantial evidence does not support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Furthermore, in a court-tried case, conflicts in the evidence are for the trial court to resolve and an appellate court considers “only those facts and inferences favorable to the prevailing party.” Heigert v. Londell Manor, Inc., 834 S.W.2d 858, 863 (Mo.App.1992).

D & H claims that the Missouri Constitution has long recognized that a “material impairment” of access to property during construction of a public improvement constitutes an actionable claim for inverse condemnation. D & H contends that the proof in this matter supports a finding that there was an “impairment of access” to D & H’s drug store and not a diversion of traffic. In support of its argument, D & H points to the evidence which showed that during construction, streets in three directions were closed to through traffic for the months of June, July and August. Furthermore, the traffic in the fourth direction was partially barricaded to through trafile during this time, resulting in a significant loss of sales transactions and revenue.3 As such, D & H claims that [517]*517its drug store was “practically blockaded” by the construction and, therefore, the case law relied upon by the trial court, which addressed diversion of traffic and circuitry of travel issues, is not applicable.

D & H claims that the leading “blockage of access” case, as opposed to the rerouting of traffic, is the 1988 case of Siemers v. St. Louis Electric Terminal R. Co., in which a property owner was subjected to, among other things, “[l]ong-continued deprivation by barricades or by watchman of temporary access to the building” during the construction of an underground railroad alongside the plaintiffs property. 343 Mo. 1201, 125 S.W.2d 865, 867 (1938). The court quoted from Van de Vere v. Kansas City, 107 Mo. 83, 17 S.W. 695 (Mo.1891), for the proposition that a plaintiff “must show that the property itself, or some right or easement connected therewith, is directly affected, and that it is specially affected.” Siemers, 125 S.W.2d at 868.

The Siemers ’ court held that:

We think the authorities sustain the proposition that continued, though temporary, deprivation of access to the building, resulting in loss of rents or use, ... is an element of damage properly for consideration [because] the right to the use of one’s property abutting on a street is an easement which cannot be taken away or impaired without just compensation.

Id. (citations omitted).

In Dulany v. Missouri Pacific R.R. Co., the court held that summary judgment was improper, for an inverse condemnation action against the highway department who put guard rails across the landowner’s access to the highway, as a genuine fact existed as to whether “reasonable access” to the highway was denied to the landowner. 766 S.W.2d 645, 648 (Mo.App.1988). Also, in State ex rel. State Highway Comm’n v. Kemper, 542 S.W.2d 798, 801 (Mo.App.1976), the court ruled that one who has been deprived of “reasonable means” to access to the general system of streets has suffered injury and is entitled to damages. In Dulany and Kem-per, the actions of the highway department served to “eliminate” or “deprive” the landowners’ private/direct access to the highway. 766 S.W.2d at 648, 542 S.W.2d at 802. As such, the eases were distinguished from the line of cases in which the Supreme Court had ruled that the landowners were not entitled to damages “for circuitry of access.” See Dulany, 766 S.W.2d at 648.

The City claims that D & H has improperly characterized this case as one of barricade and impairment of access, when, in fact, the facts support a case of temporary diversion of traffic which resulted in loss of potential business and profits.

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Related

Heigert v. Londell Manor, Inc.
834 S.W.2d 858 (Missouri Court of Appeals, 1992)
Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
State Ex Rel. State Highway Commission v. Kemper
542 S.W.2d 798 (Missouri Court of Appeals, 1976)
State Ex Rel. State Highway Commission v. Meier
388 S.W.2d 855 (Supreme Court of Missouri, 1965)
State Ex Rel. State Highway Commission v. Brockfeld
388 S.W.2d 862 (Supreme Court of Missouri, 1965)
Missouri Real Estate & Insurance Agency v. St. Louis County
959 S.W.2d 847 (Missouri Court of Appeals, 1997)
Filger v. State Highway Commission of Missouri
355 S.W.2d 425 (Missouri Court of Appeals, 1962)
Kansas City v. Berkshire Lumber Company
393 S.W.2d 470 (Supreme Court of Missouri, 1965)
Ark. State Highway Comm. v. Bingham
333 S.W.2d 728 (Supreme Court of Arkansas, 1960)
Siemers v. St. Louis Electric Terminal Railway Co.
125 S.W.2d 865 (Supreme Court of Missouri, 1939)
Dulany v. Missouri Pacific Railroad
766 S.W.2d 645 (Missouri Court of Appeals, 1988)
Van DeVere v. Kansas City
107 Mo. 83 (Supreme Court of Missouri, 1891)

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977 S.W.2d 515, 1998 Mo. App. LEXIS 1804, 1998 WL 726646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/d-h-prescription-drug-co-v-city-of-columbia-moctapp-1998.