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

845 S.W.2d 703, 1993 Mo. App. LEXIS 97, 1993 WL 11630
CourtMissouri Court of Appeals
DecidedJanuary 26, 1993
DocketNo. 61462
StatusPublished
Cited by5 cases

This text of 845 S.W.2d 703 (State ex rel. Missouri Highway & Transportation Commission v. Wallach) 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. Wallach, 845 S.W.2d 703, 1993 Mo. App. LEXIS 97, 1993 WL 11630 (Mo. Ct. App. 1993).

Opinions

SMITH, Judge.

The Highway Commission appeals from the jury verdict and resultant judgment of $100,000 against it in this condemnation action. We reverse and remand.

The property in question is on the south side of St. Charles Rock Road at the intersection with Lucas and Hunt Road in St. Louis County. The Commission was improving the Rock Road and took less than one-tenth of an acre of the landowners’ property fronting the road. The remainder of the parcel is approximately 4.8 acres. The land is utilized by the landowners for a scrap collection and recycling operation. This activity consists of receiving scrap, ferrous and non-ferrous, on the property and preparing it for resale mostly to smelters for recycling. The recycling is not done on the premises. The improvements by the Highway Commission have reduced the access to the property which previously included virtually the entire length of the property fronting the Rock Road. Landowners still have several points of access to the property. Curbing and change of grade are responsible for some of the reduction of access.

Substantial evidence was adduced that the property is paved with cobblestones over a large area. There was testimony that cobblestones are particularly valuable as a surface for the type of business conducted by landowners because of their durability and composition. There was substantial evidence that locations for the type of operation conducted on the property were rare or nonexistent in St. Louis County and the Metropolitan area because of zoning restrictions or because of lack of suitability for the purpose. Landowners’ expert and one of the landowners testified that the highest and best use of the property was for the purpose presently being utilized by the landowners. The Commission’s expert testified the highest and best use was for industrial which would include the use presently being made of the property. No one testified that the land was unsuitable for any use other than that currently utilized.

Over objection landowners produced extensive evidence of the effect upon their business operation of the highway improvement and the taking of the land. This included testimony of the effect of the reduction of access and the effect of the curbing on the movement of vehicles on the premises. Landowners, again over objection, elicited considerable and repetitive testimony of the effect of the reduction in area upon the operation of their business. Landowners did not attempt to utilize this evidence to establish an amount of business loss of profits but claimed the evidence was offered to establish the “highest and best use” for the property. The Commission in addition to objecting to the testimony offered four withdrawal instructions advising the jury it was not to consider respectively circuity of travel, inconvenience of travel, reduction of ability to turn into the property because of the curbing, and the loss of business by the landowners in arriving at the determination of damages. The trial court refused each of the four instructions.

On appeal the Commission premises error on the trial court’s allowing evidence of the diversion of traffic, circuity and inconvenience of travel and placement of concrete islands on the basis that all of these factors are not compensable in condemnation cases. It premises error also on the trial court’s admission of evidence regarding loss of customers and business “because such evidence is inadmissible due to its speculative and conjectural nature, and the business with its potential profits has not been taken by the condemnation ac[705]*705tion.” As a separate claim the Commission also premises error on the refusal of the trial court to give the requested withdrawal instructions. Additional points on appeal challenge the utilization of the income approach to evaluating the property, the qualifications of landowners expert, and one other evidentiary ruling.

On its point dealing with the difficulties or inconvenience in travel, the Commission relies on State ex rel. State Highway Commission v. Meier, 388 S.W.2d 855 (Mo. banc 1965) and State ex rel. State Highway Commission v. Brockfeld, 388 S.W.2d 862 (Mo. banc 1965). Both of those cases involved land adjacent to limited access highways in which the landowners sought to introduce evidence of the decrease in value of their property from the diversion of traffic because of the limited access. In both cases the Supreme Court held that the evidence was not admissible and that damages could not be recovered for such diversion of traffic. Judge Finch dissented in both cases. Shortly after Meier and Brockfeld the Supreme Court decided State ex rel. State Highway Commission v. Galeener, 402 S.W.2d 336 (Mo.1966). There the court, while restating that noise and speed and similar inconveniences are not elements of damage sustained by a landowner for which he may be compensated, did hold that such inconveniences may with other factors affect future use and therefore market value. [5-7]. In State ex rel. State Highway Commission v. Nickerson, 578 S.W.2d 916 (Mo. banc 1979) then Senior Judge Finch in writing for the court distinguished Meier and Brockfeld on the basis that they held only that diversion of traffic is not a special item of damage which the landowner may show and for which damages are to be awarded, l.c. 919. The court held in Nick-erson that in a partial taking the landowner is entitled to receive as compensation the difference between the fair market value of the entire tract immediately before the date of the taking and the fair market value of the property remaining immediately after the taking, l.c. 917. To the extent that traffic or other factors influence that fair market value they may be considered by the expert witnesses in arriving at their determination of fair market value after the taking, and by the jury in determining damages. That approach has been followed. See, State ex rel. Missouri Highway and Transportation Commission v. Horine, 776 S.W.2d 6 (Mo. banc 1989) [9-12]; State ex rel. Missouri Highway and Transportation Commission v. Mosley, 697 S.W.2d 247 (Mo.App.1985) [2, 3]; State ex rel. Missouri Highway and Transportation Commission v. Jim Lynch Toyota, Inc., 830 S.W.2d 481 (Mo.App.1992) [3, 4], It would appear logical that where such factors as change of traffic, noise, or similar items have changed the value of property by making it less usable or unusable for its highest and best use that those factors should be considered in determining the extent of the landowner’s damages. The jury in a partial taking case is entitled to hear evidence of matters which determine the marketability of the remaining property including loss of some access, circuity of travel and inconvenience in utilizing access to the property.

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845 S.W.2d 703, 1993 Mo. App. LEXIS 97, 1993 WL 11630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-missouri-highway-transportation-commission-v-wallach-moctapp-1993.