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

687 S.W.2d 662, 1985 Mo. App. LEXIS 3092
CourtMissouri Court of Appeals
DecidedMarch 12, 1985
DocketNo. 47492
StatusPublished
Cited by10 cases

This text of 687 S.W.2d 662 (State ex rel. Missouri Highway & Transportation Commission v. Roth) 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. Roth, 687 S.W.2d 662, 1985 Mo. App. LEXIS 3092 (Mo. Ct. App. 1985).

Opinion

KAROHL, Judge.

This is a 1976 highway condemnation case involving 83.6 acres1 of industrial zoned property owned by defendant-respondent Donald E. Roth and others [Roth], in St. Louis County. The commissioners awarded defendants $4,220,000. Both sides filed exceptions. The 1983 circuit court jury trial resulted in a verdict and judgment for Roth in the sum of $3,250,-000. Plaintiff-condemnor moved timely for a new trial and now appeals the amount of the judgment.

Roth purchased the property in 1968. It is a tract containing 83.6 acres. The land taken for the highway right-of-way was 24.5 acres. Part of the remaining acreage is landlocked by the taking (44.3 acres) and part is left with irregular boundaries which detracts from its value.

At the time of the agreed date of taking, October 13, 1976, the land had been surveyed, platted and zoned for industrial development. Roth had completed engineering studies and drawings. Survey stakings were performed. Over one million cubic yards of earth had been moved. Storm sewers and railways had been realigned; street grading and subgrading were completed. Trunk sewers were located on the property and the metropolitan sewer district had approved plans for extensions of laterals from the main sewer trunks to individual subdivision lots. Forty-six lots had been planned, but streets and access to the main thoroughfare had not been constructed. The property was accessible to utilities. Roth’s expert witnesses viewed the land as being neither a completed subdivision nor a piece of unimproved property, but “somewhere in between,” closer to being developed. The State Highway Commission’s experts characterized the land as “raw land” upon which no improvements had been made.

Property owner Roth testified that he was in the real estate development business and purchased the eighty-four acre tract in 1968. He described the property in 1968 as very rough and hilly with a lot of big trees. Portions of the land were undermined. Prior to acquiring the land, Roth had studies done on the property by a professor of Washington University, a compaction engineer and soil engineer. Appraisals were conducted by two different appraising firms. Roth purchased the land for $390,000, which included a $100,000 finder’s fee. Surveys were performed, engineers hired, preliminary through final plans drawn, and aerial photographs taken. The property was staked, creeks were drained and drainage channels realigned. The property was zoned industrial and the preliminary plats for development were approved by the cities of Bel-Ridge and St. John, where the property was located. Roth’s company rented equipment to clear and grade the land. Roth employed and paid construction companies and other professionals to help with the work. Roth contracted, to sell two of the forty-six proposed lots for $1.67 per square foot with a condition that a street be put in. The street was never constructed and the two lots were subsequently returned to Roth. Other lots were leased to brick contractors in 1969.

As the owner of the property and experienced real estate developer, Roth gave an opinion as to the fair market value of the property prior to the taking of $5,458,838, using $1.50 per square foot of land area. His opinion of the value after the taking was $93,738, leaving total damages of $5,375,100, at the time of the taking in 1976.

Jessie F. Colvin, a site development engineer; Eugene E. Brucher, a consulting engineer and foundation expert; Ronald Behle, a builder and real estate broker; and Ronnie D. Bales, registered surveyor, each testified as to their work which they performed in the development of Roth’s property.

Roth called three expert witnesses to testify to the value of the property taken. [665]*665They each used comparable land sales to support their opinions as to the damages. The first witness testified that damages for the taking were $4,169,800 [$1.32 per square foot]. His opinion was based on twelve comparable sales transactions involving lots which were all zoned for industrial use. They ranged in size from 11,700 to 112,000 square feet and were located within several miles of defendants’ tract of land. Each lot was on a street, had sewers, was accessible to utilities, graded, and had no buildings. These lots were sold between 1972 and 1978 for amounts ranging from 73$ to $2.00 per square foot of land area.

Roth’s second expert testified that damages for the taking were $4,372,300 [$1.25 per square foot]. His opinion was based on four tracts of land, similarly located, which he described as “raw land” ranging in size from twenty-four to eighty-seven acres. The tracts were unplatted, ungraded and undeveloped, and sold for 31$ to 41$ per square foot of land area, between 1968 and 1973. These properties were subsequently developed and zoned industrial. He also considered smaller parcels within these tracts, ranging in size from 35,283 square feet to 3.1 acres, that were sold after they had been developed. The improvements on these smaller tracts included grading, streets, sewers, and accessibility to utilities. These sales were made between 1968 and 1978 and the lots sold for amounts ranging from $1.30 to $2.12 per square foot of land area.

The third expert testified that the damages for the taking were $4,360,820 [$1.39 per square foot]. His opinion was based on seven comparable sales involving tracts of land, in the same locality, industrially zoned, and with similar amenities. The years involved were 1970 to 1978 and these tracts were purchased for amounts ranging from $1.63 to $3.00 per square foot of land area.

The three experts based their opinions of damages for the taking on the same 24.5 acre tract. They differed as to the value of the resulting landlocked and remaining tracts which explains the expert’s net figures for damages. Their opinions were not based solely on square foot values.

Plaintiff objected to evidence of the sale prices of comparables utilized by Roth’s experts’ (except for the four tracts purchased as “raw land” and mentioned by the second expert) arguing those sales were irrelevant and immaterial because of the great disparity in size and amenities when compared to defendants’ property. In plaintiff’s view they were not probative because they were incomparable. Every objection in this regard was overruled.

Plaintiff called two expert witnesses to testify as to comparable land sales and to give their opinions of defendants’ damages for the taking. The first witness assessed damages for the taking at $344,085. This opinion was based on five sales transactions involving industrial zoned undeveloped tracts of land, similarly located, ranging in size from 29.25 to 133 acres. These sales occurred between 1970 and 1974 and the tracts were sold for amounts ranging from $5,623 to $15,000 per acre. Plaintiff’s second witness testified that damages for the taking were $367,150. His opinion was based on six sales transactions only one of which was developed. The tracts were in the same locality and ranged in size from 24 to 133.72 acres. These purchases occurred between 1970 and 1974 and sold for $5,600 to $34,855 per acre. The purchase for $34,855 per acre was for an improved tract.

The Commission’s sole point on appeal is as follows:

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Bluebook (online)
687 S.W.2d 662, 1985 Mo. App. LEXIS 3092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-missouri-highway-transportation-commission-v-roth-moctapp-1985.