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

838 S.W.2d 144, 1992 Mo. App. LEXIS 1385, 1992 WL 202530
CourtMissouri Court of Appeals
DecidedAugust 25, 1992
DocketNo. WD 45311
StatusPublished
Cited by10 cases

This text of 838 S.W.2d 144 (State ex rel. Missouri Highway & Transportation Commission v. Cowger) 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
State ex rel. Missouri Highway & Transportation Commission v. Cowger, 838 S.W.2d 144, 1992 Mo. App. LEXIS 1385, 1992 WL 202530 (Mo. Ct. App. 1992).

Opinion

LOWENSTEIN, Chief Judge.

Appellants Frank and Cathryn Saville received a unanimous jury verdict giving them, as landowners, the amount of $17,-500 for the value of their property as condemned by the Missouri Highway and Transportation Commission (Commission). The Savilles appeal the verdict, arguing three points: 1) the admission of evidence regarding the condemnor’s future use of the condemned land violated the “Maximum Injury Rule”, 2) even if not in violation of the “Maximum Injury Rule”, this evidence was still improperly admitted and, 3) the court, in admitting the evidence, violated the landowners’ fundamental Constitutional and Due Process rights to just compensation because landowners were not given adequate notice of the property being taken.

The facts of the case are as follows. The Commission commenced this action to condemn a portion of the Saville’s land on which their home was located, to widen Missouri Route 7 from two to four lanes. The land taken from the 1.88 acre tract was 0.29 acre of right of way, 0.07 acre of temporary easement, and 0.05 acre of permanent easement, leaving the Savilles 1.47 acres.

The Commission awarded the landowners $27,700. Both sides filed exceptions.

The Appellants called two witnesses. The testimony began with Frank Saville stating that the former right-of-way line was about sixty feet from the front of his house and that the strip acquired by the Commission was 40 feet deep. Saville then stated on direct examination that the Highway Department now owned all the property to within 20 feet of his house and that it could be used by them for any purpose they saw fit. He then indicated that he thought his property was worth between [146]*146$90,000.00 and $100,000.00 immediately before condemnation.

Appellants’ second witness was Noble Johnson, an appraiser. Johnson, as an expert, testified that in his opinion the highest and best use of the property before and after the taking was residential use. He indicated that he studied the plans and in his opinion, the property was worth $92,-000.00 before condemnation. The plan sheets were later introduced into evidence without objection. Mr. Johnson then said that the remaining land had a value of $13,200.00, making the loss due to condemnation $78,000.00.

The Commission’s evidence came from two witnesses, Linda Ell and Ralph White. Ell, a registered engineer for the Commission, supervised the design of the Route 7 project. Ell testified that the existing two-way lanes would be resurfaced and become the two east-bound lanes for Route 7 with a median and a new, two lane, westbound pavement constructed North of the existing two-way lanes. She indicated that 0.05 acre of the property was needed for a permanent easement for a water line, 0.07 acre for a temporary easement to construct a new water service line, and 0.29 acres for right-of-way. Ell testified on cross-examination to possible future uses of the area in response to Appellants’ questions. She also stated upon cross-examination that it was not possible to move the road closer to the home due to insufficient space in that area under federal design requirements. She testified that this plan was designed with a 60 foot median and that any future expansion would be made into the median area in accord with Respondent’s practice all over Missouri. On redirect-examination, Ell testified that the distances between the front of the house to the edge of the existing traveled traffic lane would be the same in both the before and after conditions because the pavement would be used in place for the ease bound lanes and the new west bound lanes were to be constructed North of the existing pavement.

White, the Highway Department’s chief appraiser, testified that the landowners should receive $10,250.00 in damages from the taking. On cross-examination, White testified any change in the location of the highway in the future would involve the acquisition of additional right-of-way and another appraisal of the property.

The jury verdict was $17,500.00. Because they claim the trial court improperly admitted evidence, the burden is on Appellants to establish prejudice by admission of the objected evidence. Span v. Jackson, Walker Coal & Mining Co., 16 S.W.2d 190, 322 Mo. 158 (1929). In addition, they must contend the the erroneous admission of evidence constitutes reversible error, and must demonstrate absence of sufficient competent evidence to support the judgment. Gould v. Starr, 558 S.W.2d 755 (Mo.App.1977).

I. MAXIMUM INJURY RULE

The Savilles argue that the con-demnor was allowed to testify about things which were intended to diminish the landowners’ damages. They argue that the condemnor, over objections, was permitted to put on evidence that the landowners’ property would look essentially the same after the taking as it had before and that the condemnor would not be using the right-of-way across the landowners’ property to the fullest extent permitted. They claim that such testimony convinced the jury to award less money to them and constitutes a violation of the maximum injury rule. The maximum injury rule requires the jury to act upon the presumption that the condemnor will make the “most injurious use of its rights.” Shell Pipe Line Corp. v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917 (1932). Appellants suggest that any evidence admitted which restricts or limits the extent of the taking is clearly improper, inadmissible, and reversible error. In reality, however, the maximum injury rule is used only in the absence of detailed construction plans which limit the condemnor. 4A Nichols, The Law of Eminent Domain, 14.15 (rev. 3d ed. 1981) pp. 14-327-24--329. In such a case, the jury has the right to base its verdict on the most injurious use to which the property could lawfully be applied. However, the condem-[147]*147nor has the right to file and incorporate its construction plans into its petition, and the jury is allowed to assess the damages based on these plans. St. Louis K. & N. W. Ry. Co. v. Clark, 121 Mo. 169, 25 S.W. 906, 907-908 (1894). In the case at bar, the design plans were entered into evidence without objection, and show the nature and extent of the land taken and the location of the highway improvement to the remaining property and were filed with the condemnation petition. The maximum injury rule does not apply to this case.

II. ADMISSIBILITY OF EVIDENCE

The Appellants allege the court prejudicially erred in allowing Commission testimony concerning its future use of the land in question. However, the law states that a condemnor has the right to offer evidence as to its plans for the condemned land, even where the petition does not set out the manner of its use. St. Louis K. & N.W. Ry. Co. v. Clark, 25 S.W. 906, 907; State Highway Commission v. Dunard, 485 S.W.2d 657, 660 (Mo.App.1972). The Commission’s attorney was doing exactly this in his closing argument to the jury.

The first instance of error occurred during the Commission’s direct-examination of Ell. Ell was asked to describe how the project affected the subject property.

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Bluebook (online)
838 S.W.2d 144, 1992 Mo. App. LEXIS 1385, 1992 WL 202530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-missouri-highway-transportation-commission-v-cowger-moctapp-1992.