Nelson v. State ex rel. Missouri Highway & Transportation Commission

734 S.W.2d 521, 1987 Mo. App. LEXIS 4102
CourtMissouri Court of Appeals
DecidedMay 19, 1987
DocketNo. 50989
StatusPublished
Cited by4 cases

This text of 734 S.W.2d 521 (Nelson v. State ex rel. Missouri Highway & Transportation Commission) 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
Nelson v. State ex rel. Missouri Highway & Transportation Commission, 734 S.W.2d 521, 1987 Mo. App. LEXIS 4102 (Mo. Ct. App. 1987).

Opinion

GARY M. GAERTNER, Presiding Judge.

This is an appeal from a jury verdict in favor of Ann Nelson, respondent, which awarded her $30,000.00 in an action for inverse condemnation. Appellant, the Missouri Highway Commission (MHC), raises three issues on appeal. First, it contends that respondent failed to make a submissi-ble case; next, it argues that the trial court erred in regard to the damage instruction; and finally, it alleges prejudicial error in the trial court’s failure to admit certain evidence. We affirm.

The facts of this case are briefly recounted as follows. Respondent purchased a house in St. Charles County in 1981. Sand-fort Creek abuts the property and the house sits on a bank 21 feet above the creek bed. In 1979, appellant made highway improvements by adding third lanes and median to 1-70 between the Zumbehl and Cave Springs Interchanges in St. Charles County, which created 2.66 acres of impervious area within the watershed and drainage area of respondent’s home. Between July, 1981 and August, 1982, MHC removed about 57,000 cubic yards of dirt from a hill-shaped area (“borrow area”) located within the watershed area in order to construct the interchange at Zum-behl Road. No water retention basin was provided at that time.

Since 1981, water from the creek has risen over the bank and entered respondent’s property on several occasions, the soil has eroded into the creek, and a fence and trees which were positioned in the rear portion of the property have fallen as the soil along the bank has collapsed.

The gravamen of respondent’s action in inverse condemnation is that MHC’s highway improvements between 1979 and 1982 caused the natural capacity of Sandfort Creek to be exceeded which, consequently, caused the damage to her property. Appellant counters that its field studies demonstrate that its highway improvements did not cause the capacity of the creek to be exceeded. It argues that any damage was the result of heavy rain conditions in the area.

Appellant’s first point on appeal questions the submissibility of respondent’s case. In our review of the submissibility issue, we consider the evidence in the light most favorable to respondent, give respondent the benefit of all reasonable inferences flowing therefrom, and disregard appellant’s evidence which fails to support respondent’s case. Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 274 (Mo. banc 1984).

Respondent bore the burden of proving that MHC’s highway improvements drained off surface waters in such a manner as to exceed the natural capacity of Sandfort Creek. We note that mere acceleration and increase of the flow of the natural drainway is insufficient to claim actionable damages. Borgmann v. Florissant Development Co., 515 S.W.2d 189, 194-195 (Mo.App., E.D.1974).

Respondent’s expert witness, civil engineer and land surveyor Rayford Pickett, testified that MHC’s highway improvements had caused the natural capacity of Sandfort Creek to be exceeded. He stated that the erosion damage to respondent’s property would continue. It was his conclusion that no other construction development upstream from respondent’s property had caused or contributed to the damage because those other developments were built after the passage of regulations which required storm water retention basins.

[523]*523Respondent testified that she witnessed the erosion of the land and trees in the back portion of her property beginning in 1982 and that water had come over the bank and entered her backyard in 1983. At the time she purchased the property in 1981, she was able to walk along the outside of the fenced portion of her yard. At the time of trial, this was no longer possible because that portion of the property had caved in or eroded.

Several of respondent’s neighbors also testified. Non-expert witnesses, such as neighbors, may testify as to their opinions and experience with a situation if they are especially acquainted with a situation which is impossible to fully reproduce. Kennedy v. Union Electric Co., 358 Mo. 504, 216 S.W.2d 756, 760-61 (1948). In substance, their testimony was that excessive water in the creek did not occur until after 1981 when MHC finished construction of the additional lanes and dug out the borrow area. Several witnesses testified to having seen water overflow the bank of the creek and reach respondent’s backyard on numerous occasions. Further testimony was adduced to indicate that the water was fast-flowing and did not indicate any damming of the channel downstream.

MHC’s expert witness, Edward Dabler, a civil engineer and land surveyor, testified that his calculations determined that MHC’s project could not have exceeded the capacity of the natural drainway of Sand-fort Creek. He disagreed with respondent’s expert that other upstream developments had water retention facilities. Further, Dabler testified that respondent’s property had been of insufficient depth and was filled at the time of development. He concluded that the present subsided area was ground fill going back to its prior condition and that this dirt crowded the natural drainway and impeded the natural flow. Dabler could not explain respondent’s testimony or that of her neighbor that water had accumulated in respondent’s backyard, but opined that it might have occurred as a result of an unnatural damming of the channel downstream.

MHC’s other expert witness, Raymond Linebach, a geologist employed by MHC for 15 years, testified that respondent’s damage resulted from a rotational landslide brought about by a combination of factors including exceedingly moist soil, improperly built fill, and an overly steep slope. In particular, Linebach testified that the soil was unable to dry out because of increased rain fall in the area which increased the weight of the soil and lessened its stability.

The jury was presented with conflicting theories on the cause of the damage to respondent’s property. Their determination that MHC’s acts resulted in the natural capacity of the drainway to be exceeded and that this caused the damage to respondent’s land was not against the sufficiency of the evidence. This point is denied.

In its second point, MHC argues that the trial court erred in submitting respondent’s damage instruction which was based solely on the diminution in market value of the property. Appellant claims that the court incorrectly refused its damage instruction which allowed the jury to award the cost to repair any damage.

When damage to real estate is permanent and the injuries are of major proportion, the proper measure of such damage is the difference between the market value of the property immediately before and after the injuries occur. Cirese v. Spitcaufsky, 265 S.W.2d 753, 758 (Mo.App., W.D.1954). In contrast, where the injury to real property is only slight and amenable to restoration, then the measure of damages may be the cost of restoration so long as the expense is moderate and less than the diminution in the value of the property. Smith v. Norman, 586 S.W.2d 84, 85 (Mo.App., E.D.1979); Dimick v. Noonan, 242 S.W.2d 599

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734 S.W.2d 521, 1987 Mo. App. LEXIS 4102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-state-ex-rel-missouri-highway-transportation-commission-moctapp-1987.