State ex rel. State Highway Commission v. Casey

490 S.W.2d 373, 1973 Mo. App. LEXIS 1342
CourtMissouri Court of Appeals
DecidedJanuary 9, 1973
DocketNo. 34103
StatusPublished
Cited by1 cases

This text of 490 S.W.2d 373 (State ex rel. State Highway Commission v. Casey) 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. State Highway Commission v. Casey, 490 S.W.2d 373, 1973 Mo. App. LEXIS 1342 (Mo. Ct. App. 1973).

Opinion

ROBERT LEE CAMPBELL, Special Judge.

In this condemnation case, the Commissioners’ award was in the sum of $12,250.-00; both plaintiff and defendants filed exceptions to the Commissioners’ award. The jury awarded defendants $20,000.00, and plaintiff appeals. We affirm.

Plaintiff condemned two strips of defendants’ land consisting of approximately 20 acres for relocation and improvement of Routes A (8), U and O. The effect of the relocation was to divide the southern portion of defendants’ land into four separate and distinct parcels rather than two such parcels. In addition, construction of the new roadways necessitated cuts and fills and resulted in limitation of access. Further facts will be set forth in the opinion where necessary.

Plaintiff raises three points on appeal, each of which consists of one full page in plaintiff’s brief under points and authorities. In essence, plaintiff complains that the trial court committed prejudicial error in allowing defendants’ witness, Tom Casey, to testify to sale prices paid for four other parcels of property in the vicinity of defendants’ property between 1960 and 1968 for the reason that such sales were not comparables; in refusing to permit plaintiff to cross-examine Tom Casey with respect to the purchase price paid by defendants in 1962 for the land in question; and in permitting the introduction into evidence of noncompensable items of damages, such as the circuity of travel, limitation of access, and loss of access because of grade fills, and that the introduction of such evidence was not cured by the trial court’s giving of plaintiff’s withdrawal instruction No. 6.

Tom Casey was a lifetime resident of Potosí, Missouri, who owned an interest in the Casey property which lies between and abuts both the City limits of Potosí and the 383-acre tract of land owned by defendants from which the two strips were condemned by plaintiff as above set forth. Tom Casey, testified to four sales of the Casey property between 1960 and 1968. He testified that in 1960 his family conveyed ten acres of cleared land that abutted the City limits of Potosi, and that in this conveyance, his family gave two acres and sold the other eight acres for $8,000.-00. This acreage was less than one-fourth mile from the defendants’ property. He further testified that, in 1962, his family conveyed thirteen acres of cleared land located in close proximity to defendants’ property for the sum of either $12,500.00 or $17,500.00 (Twelve thousand five hundred is typed in the transcript, and the “Twelve” has been stricken and the word “Seventeen” written in above in ink. Close reading of the transcript on both di[375]*375rect and cross-examination fails to establish which figure is correct). He further testified that in 1964, his family conveyed eleven acres approximately one-fourth mile from defendants’ property, and that in the conveyance his family gave one acre and sold the other ten acres for $10,000.00. He further testified that, in 1968, his family conveyed 36 acres of their cleared land for a shopping center for the sum of $50,000.-00, but that twelve of the 36 acres were considered to be nonusable because it had a tendency to flood.

Plaintiff contends that none of said sales were comparable sales and should not have been permitted to be introduced into evidence because all of the sales involved cleared land, three of the sales were within the City limits of Potosí, the fourth sale abutted the City limits of Poto-sí, and each of said properties had available all public utilities, fire and police protection furnished by the City of Potosí, and that each sale involved an acreage area considerably smaller than defendants’ property containing approximately 380 acres. On cross-examination, the witness testified that the sales were comparable, that at the time of the sales none of them had accessibility to water, sewerage, gas or electricity. He testified that the utilities were not available at the property lines and that utility lines had to be run to the properties involved. He further testified the defendants’ property had the same problems that existed at the places of the other sales and that it was merely a matter of running utility lines to defendants’ property.

The sales of acreage in such close proximity to defendants’ property could certainly be considered as comparable sales. The introduction into evidence of such sales was within the exercise of reasonable discretion of the trial judge, and the trial judge clearly did not abuse his discretion in permitting the introduction of such evidence. State ex rel. State Highway Commission v. Yager, Mo.App., 395 S.W.2d 518; State ex rel. State Highway Commission v. Galeener, Mo., 402 S.W.2d 336.

With respect to plaintiff’s contention that the trial court erred in not permitting the introduction into evidence of defendants’ purchase price in 1962 of the land in question, some explanation is necessary. On cross-examination of Tom Casey, plaintiff’s attorney inquired as to whether or not the witness had determined what the property in question was sold for to the defendants in 1962. After objection, by defendants’ attorney, the jury was excused, and one of the defendants, Edward T. Eversole, testified that the land in question was purchased as a part of a package deal from his Aunt’s estate; that he received a quitclaim deed to the property in question and to twelve or fourteen other parcels of real estate as well as some bank stock. He further testified that his Aunt owned only a five-sixths undivided interest' in the land in question and that he owned about one two-hundred-fortieths interest in the land, and that it was necessary for him to secure various and sundry other quitclaim deeds to purchase other undivided interests. The complicated transactions are succinctly set forth in defendants’ brief as follows: “We submit that the circumstances of purchase from the trustees, to-wit: a ‘package deal’ containing several tracts of land plus personal property, and the title problems of less than a fee, destroy the relevancy and probative value of the 1962 sales price.”

Although we have grave doubts as to the admissibility of this evidence, we need not make a determination of that issue. Defendants objected to the question on cross-examination of witness, Tom Casey, among other reasons, for the reason that “this would call for hearsay from Tom Casey.” Plaintiff did not attempt to introduce this evidence by any other method than the one question asked of witness Tom Casey on cross-examination. The question clearly [376]*376called for hearsay evidence, and the trial court correctly sustained defendants’ objection to such question. State ex rel. State Highway Commission v. Kimmell, Mo., 435 S.W.2d 354.

Plaintiff’s third Point on appeal, and especially the argument in connection therewith, is somewhat confusing. In addition to the complaint with respect to introduction into evidence of noncompensable items of damages which was not cured by' the trial court’s giving of plaintiff’s withdrawal instruction No. 6, plaintiff’s Point III does conclude with a statement that “2. The Verdict Is Excessive Because It Is Not Supported by Any Other Credible or Competent Evidence.” Defendants’ evidence consisted of the testimony of four witnesses who testified to net damages of $25,250.00, $30,000.00, $30,000.00 and $40,-000.00.

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Bluebook (online)
490 S.W.2d 373, 1973 Mo. App. LEXIS 1342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-state-highway-commission-v-casey-moctapp-1973.