State ex rel. State Highway Commission v. McMurtry

292 S.W.2d 947, 1956 Mo. App. LEXIS 138

• Court: Missouri Court of Appeals
• Decided: July 14, 1956
• Docket: No. 7453
• Status: Published

Opinions

McDOWELL, Presiding Judge.

This is an action in condemnation brought in the Circuit Court of Howell County, Missouri, to acquire an easement across defendants’ 280 acre farm for the purpose of constructing supplementary state highway O iii Howell County. Commissioners appointed by the court reported damages in the sum of $300. Exceptions were filed by defendants which were tried before a jury and a verdict returned for $275. Defendants appealed.

The easement acquired contained 5.28 acres of new right-of-way, 1.84 acres of old right-of-way and 2.90 acres for drainage purposes.

The evidence offered showed that defendants’ land was served by a good. WPA road running east and west along the north boundary line of the farm and intersecting a public' road at Lanton which leads to West Plains; that this farm was also served by a road west of defendants’ buildings leading north to West Plains'. ' Defendants testified that these roads were all-weather -roads; that the WPA road passed to the south of defendants’ house leaving from four to six acres of land on the north side; that the barn was on the south side of the road connected with about 100 acres of bottom land, improved, and just to the west of the barn was a deep well; that the balance of the 280 acres lay south of the bottom field. The evidence showed that defendants’, farm .was about a quarter and a half wide along which the road passed..

’ The easement condemned was a right-of-way 80 feet wide. It entered the farm' near the northeast' corner and followed the old road until it reached the point about 200 yards east of the dwelling where the road angled to the south of the barn leaving a strip about two acres wide where the barn was located and cutting the barn off from the .bottom field and left the well on the' south side of the new improvement.

The old road contained a wire fence on both sides and the evidence shows that defendants were forced to spend $441.20 for new fencing material, wire, gates and labor, together with what they could salvage from the old fences to fence the new right-of-way ; that the new right-of-way. destroyed an old house used for the storage of grain, which, defendant.testified, was of the value of from $200 to $300, and it also destroyed a pond which defendant stated, was of the value of $25.

The evidence showed that 2.90 acres of the farm was taken for drainage purposes over four different parcels, of land; one parcel 50' long by 100' wide north of the right-of-way; one 40’x 160' south of the. right-of-way; one 265'x 360' south of said right-of-way; that two of these parcels extended 'down into defendants’ bottom field.

Defendant Dan McMurtry testified the, farm was worth $10,000, immediately prior-to condemnation and $8,000 immediately, thereafter;, that the bottom land was worth $50 .per, acre.

The evidence showed that in the construction of the road an underpass was made where the creek passed through the highway and in times of rain,* water filled’ this pass preventing defendants’ 'live stock from passing through it; that defendants’ children attended school at Lanton and used this road. Defendant testified that he seldom traveled the new road running to the west. As to the new improved drainage ditches constructed by plaintiff in this im-'-provement, defendant testified that the wa- ■ ters were gathered together and the old drainage was changed so as to, force the water to go. on to the bridge and into de-. fendants’ bottom land which cut ditches and injured the same.

Plaintiff’s evidence was to the effect that the new improvement did not injure or damage defendants. Some of the witnesses stated that the new road would increase the value of the farm $1,000.

Plaintiff offered testimony that defendant, Dan McMurtry, offered to give the right-of-way. However, defendants’ witnesses testified that the offer to give the right-of-way was made only if the new road was placed on the old right-of-way.

Plaintiff insisted on showing that defend-, ant went to-Jefferson City to see the Highway Department-and to the County Court to get the new road constructed. It was plaintiff’s contention -that defendants were estopped to claim damages because of their efforts to secure this road. It was admitted that the land in question was owned by the defendants by the entirety.

We will refer to appellants as defendants and to respondent as plaintiff.

Defendants’ first allegation of error complains that the court erred in excluding from the regular jury Miss Zora Bess.

The evidence .was that Miss Bess informed the.court that she liad some feeling as to the defendants’. rights in this case and asked the court to, be excused from, the, jury.. The court. instructed her that she should..disregard any feeling in the case and as to any other cases she might know about and. render verdict solely on the evidence and under the instructions.. The witness gave this testimony : ,

“A. Judge, it had nothing to do with any other cases or anything, it was the thought of taking some land of somebody they owe some money. It is the matter of taking land that somebody owns. I would rather not serve because you asked if we had any feeling whatsoever.

“Q. That would be something to be passed on by you if you serve? A. Yes, sir, but I prefer not to serve on it and more than that it is a very busy time in the office for me and I' would like to be excused on that.”

The court stated that the juror had made some statement about her haying feelings in the matter and excused her. ■We .find that the trial judge is vested with broad discretion in determining the qualifications, of veniremen to sit as jurors and .that his ruling should not be disturbed unless cleárly and manifestly against the evidence. Moore v. Middlewest Freightways, Inc., Mo.Sup., 266 S.W.2d 578, 585. We hold there is no merit in this contention. ' .

Defendants next complain of error in- the court’s' refusal to discharge from the panel juror, Cliff Bryan, who was challenged for cause. It was contended that the qualifications of -this juror -showed him to be a cousin of Judge Bryan, a member of the County Court.

On voir dire' examination'the juror stated he had never heard of the case being tried; that he was not an employee- of the Highway Department1 and had' never be'en a party to a condemnation action. There ■was no showing that the juror was ácquaint-éd with the fact that the county court was to pay the damages, i-f any, awarded to defendants. Under the law'We thinlc there is no merit'in this contention. Moore v. Middlewest Freightways, Inc., supra.

. Defendants complain of error by the court in. ref using to, discharge from the jury Orville Kearley who was .challenged for cause.

This contention is based upon the facts that the juror lived in the vicinity of the new road and had a relative who lived on the highway. In his voir dire examination the witness stated’ that he had talked to witnesses who presumed to know the facts as to'this action and had heard the suit discussed quite a bit. He stated, he had not formed .or expressed an opinion and had no opinion at thé timé. When asked if he could try the case' fairly' and impartially for both 'the State arid defendarits, he stated he could. This witness, in’ answer to questions about whether or' not he could 'try. the case .fairly and impartially, answered, “L think so..”

We might- not agree with the trial court as to his action in leaving this juror .on the panel but, under the general rule followed in this State that the trial court is vested with broad discretionary, powers in passing upon the qualifications .of jurors, we are unable to agree that reversible error was committed. Some of the .opinions of our courts. have gone further and stated that where the verdict¹ of the jury is unanimous, ■objections to the qualifications of the juror after verdict should not be considered error but, under the qualifications here as shown ■by,-the evidence, we cannot hold .that the trial court abused his discretion: in-Refusing the challenge for cause.' ■

Under allegation of error No. IV, defendants complairi that the court erred in refusing to strike certain testimony' offered by plaintiff to show that, Dan McMurtry, a defendant, urged the building of the highway on an entirely different route and that he offered to relinquish the right-of-way if such road was" constructed on an entirely different route through-the farm of defendants. 'And it was error to admit such evidence in the absence of evidence that Mc-Murtry, at such time,-knew the road-was going- over the present route, such .evidence being • inadmissible for any purpose; that the evidence: was incompetent for a further reason that such farm was owned by an estate of entirety and" there was no showing that the actions m’f Dan McMurtry were done with the knowledge and consent of his wife.

We agree with defendants’ contemtion that a husband cannot bind his wife without her knowledge or consent to release her rights in land when owned by an estate by the entirety. Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395.

An examination of the record shows that Dan McMurtry, a defendant, testified, on cross-examination- and without objection, that he did not obj ect to .the .new road but objected to where-.it was located; that he did- not take it upo'n himself to secure this road.- .He testified he.wenf with a group, tíf people to Jefferson City to aid in the securing of a road but not one that would go through his farm as this road was located. He said when he went to Jefferson City he didn’t know, where the road was to he located and he, at no time, agreed to give the right-of-way for the road in its present location; that he told the highway department he' would give the right-of-way if they would stay on the north side of his barn and on his. north property line. He said he didn’t sign any relinquishments. He testified that when he went to Jefferson City there was no petition for the right-of-way signed by him and there was nothing said about him giving the right-of-way. All of this testimony was offered without objection. The first objection made was to this question:

“Q. Did you ever appear before the County Court to initiate a proceeding to obtain a road out there?”

The court asked plaintiff’s attorney if it was his purpose to show that defendants agreed to give the right-of-way, and, if so, the objection would be overruled. Plaintiff’s attorney stated it was his purpose to show that defendants agreed to give the right-of-way. Defendants’ attorney then objected to this evidence and asked the court if he would direct the jury to disregard such testimony if plaintiff failed to show that defendant and his wife offered to give the right-of-way and the court agreed that if plaintiff did not so show he would strike out this testimony and instruct the jury to disregard it.

The testimony of the defendants and of the plaintiff’s witnesses was to the effect that defendant, McMurtry, never, at any time, agreed to give the right-of-way for the purpose of constructing the road in its present location.

George Ball testified in behalf of plaintiff that he didn’t think anybody knew exactly where the road was to run but that it was to run on or about the old road location and that was the petition for the road to that effect. He was asked if all of them agreed to give the right-of-way. Defendants objected to this question and the objection was sustained by the court and the answer ordered stricken. Defendants’ attorney then objected because the testimony was highly prejudicial. The objection was overruled. Defendants’ attorney then made this objection":

“The defendant again requests that the jury be discharged for the reason they question this man giving his right-of-way and it is highly prejudicial to the rights of this defendant and deprives them of a fair and impartial trial and object for the reason the Court failed to disregard it or reprimand Counsel for the Highway Department.” No ruling was made.

We are unable to sustain this contention, first, because most of the objections made by defendants’ attorney to evidence offered to show McMurtry’s relations in securing the road location were by the court sustained. It further appears from the evidence that defendant, McMurtry, testified, without objection, to all of the facts of which defendants now complain. The motion to strike offered by defendants was to testimony which the court had ruled inadmissible and the court stated that there was nothing to strike. There was no affirmative testimony in the record that McMurtry ever offered to give the right-of-way for the road in its present location.

The law is that, a contradictory position of the defendant can be shown as an admission of the party to the suit against his interest. It is not admissible to establish the existence of special benefits, but that the jury might draw from such fact a conclusion that the defendant considered his lands would be materially benefited. State ex rel. State Highway Commission of Missouri v. Shain, 340 Mo. 802, 102 S.W.2d 666, 668; State ex rel. State Highway Commission v. Hoffmann, Mo.App., 132 S.W.2d 27.

There was no inconsistency shown in the case at bar. The evidence offered by plain» tiff in attempt to make such a showing was no doubt damaging to the rights of defendants, but, under the record in this case, we are unable to convict the trial court of error. We think this matter could have been properly reached by instructions.

Under allegation of error No. V, complaint is made as to the court’s refusál to give instruction No. 9. This instruction reads:

“The Court instructs the jury that the real estate in evidence is held by estate of entirety by Mr. and Mrs. McMurtry. You are therefore instructed that any statement made by Dan McMurtrey as to relinquishing right of way of such property is withdrawn from the consideration of the jury.”

There is no merit in this contention for the reason that there is no testimony in the record that Dan McMurtry made any statement of relinquishing the right-of-way -to the property involved so there was nothing to withdraw. The instruction is a mere abstract proposition of law and was properly Tefused.

Under allegation of error No. VI, it is •contended that error was committed by the ■court’s refusal of testimony of Dan Mc-Murtry to the effect that the construction of the highway and of the drainage ditches •caused his bottom lands to overflow and the land to be cut up; that this was a proper ■element of damage for the consideration of •the jury.

The evidence shows that in the construction of the improvement two different drain.age ditches were constructed extending from the highway south into the improved 'bottom land of defendants. The defendant "testified:

“Q. About these easements of these •ditches down through your place, state to the jury whether or not they have cut ditch•es down on the land there ? A. Yes, sir.

“Q. During these two or three rains we had ⅛ the last three or four months state to the jury whether or not that cut up any of your bottom land?” (This was objected to as not relative, to the issue and by the court sustained.)

“By Mr. Green: We offer to prove by this witness as part of his damages to his place the way the highway is constructed by their easements it has caused ditches and overflow to run across his bottom land as part of the damages in this case, by the construction of the highway as an element of damages.”

It is contended by plaintiff that prior to the offering of the damages caused by the. drainage defendant had testified that the reasonable value of his land prior to the taking was $10,000 and that the reasonable value of the land after taking was $8,000; that he testified that the elements of damage were fencing, a pond, a barn, gates, a bridge and cattle pass; that he then offered to show by the witness damages caused by the construction of ditches to the bottom land and objection was made that the testimony was not relevant, which objection was sustained. Plaintiff says this error, if any, was harmless for the reason that the estimate of damages to defendants’ farm had been placed before the jury as the difference between $8,000 and $10,000 and that the issue in the case is a question of damages. It is contended that since defendants had already stated the amount of damages to be $2,000 that his testimony as to the damages for drainage caused by cutting up his farm would be double damages.

The measure of damages is the difference in the reasonable market value to the entire tract before and after the appropriation of the part actually taken for improvement. From a practical standpoint this is merely to say that the damages sus-' tained are to be regarded as a unit; although made up of integral parts — the value of the land taken, and the injury to the remainder; but before damages may be recovered upon the theory of injury to the remainder, they must be direct and certain, at the time of the appropriation, since if they are but remote or speculative, they are too uncertain to be taken into account in estimating the depreciation in the value of the land. Art. I, § 26, V.A.M.S.Const. of Missouri; City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, 153; Kamo Electric Cooperative, Inc. v. Baker, Mo.Sup., 287 S.W.2d 858, 861; Kansas City Power & Light Co. v. Gauld, 360 Mo. 795, 230 S.W.2d 850.

Plaintiff’s contention that when defendant, McMurtry, testified that his property was of the-value of $12,000 prior to the appropriation and $10,000 after the appropriation defendants were then deprived of the right to show the- elements of damages making up such depreciation' is wrong. Any elements of damage which result directly and are certain to be suffered because of the appropriation - are admissible,

We cannót,-however;'sustain, the contention of defendants because when they made their offering to prove this testimony, they did not secure a ruling of the. court. Before we can convict the court of .error for. not permitting proof as to elements of damage the court must -be apprised of. what the nature of the proof is. For that .reason,, we rule against defendants on this allegation of error. ; :: :

Allegation of error No. VII complains of the action of the trial court in permitting plaintiff, over the objections and exceptions of defendants, to question defendant Mc-Murtry as to his travel on the road of the new highway to -the west of the land in controversy in going to his work. ,It is contended that such evidence does not establish special benefits.but was merely a showing of a common benefit to everyone who traveled the highway. ... ’

Plaintiff, in its brief,' states: “* * * This line -of examination and testimony was for the purpose of showing to the jury that by the new construction of this highway, there was conferred <a: special benefit upon' the defendant’s property. This was to further show the jury that the defendant was employed in town, and the superior means' of; ingress and egress, as compared to the old road, was a special benefit to the defendant and. his -farm, due -to the fact that because of his employment, and to a prospective purchaser, a better highway presumptively confers a special benefit or increase in the market value of the property.”

■ This court held in State ex rel. State Highway Commission v. McCann, Mo.App., 248 S.W.2d 17, 22:

“We think the law is well settled that ‘special benefits’, are such as are peculiar to a particular tract of land, enhances the value of such property in á manner peculiar to it, and’not common to and enjoyed by1 other tracts in the same neighborhood, no -part of which is taken. ■ Special benefits must be reflected in an increase of the market value of the land. State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338; State ex rel. State Highway Commission v. Lindley, 232 Mo.App. 831, 113 S.W.2d 132; City of Springfield v. Ellis, Mo.App., 97 S.W.2d 154; State ex rel. State Highway Commission v. Farmer’s Estate, Mo.App., 68 S.W.2d 721; State ex rel. State Highway Commission v. Haid, 332 Mo. 606, 59 S.W.2d 1057.

“A ‘general benefit’, as applied to a person whose property is being condemned for a highway, is one common (though it" may be in a greater of lesser degree) to all other landowners in the vicinity of such road, including those whose land is not taken as well as those whose land is partly taken. A landowner from whom some' land' is taken is chargeable with the' value of special benefits but’-not the value of general benefits. To charge-a tract of land with the value of general benefits is to require its owner to pay for a benefit common to others who are themsel-ves exempt from such payments.” (See cases cited.) . ,

On page 23 of 248 S.W.2d of the opinion it is- stated:

1 “But it is also -the law that a benefit accruing to1 all lands similarly situated and bordering'on a highway may, nevertheless,be special as to each of them, provided, they are not also benefits accruing to lands in the community which do not border on the highway, and, consequently, no part of which is taken.” (See authorities cited.)

Art. I, § 26 of the Constitution of Missouri, 1945, V.A.M.S., provides that private property shall not be taken or damages for public use without compensation but the compensation going to the landholder, whose property has been taken, may be paid in cash or by special benefits or by both.

• It is held in State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338, 340, that the construction of an improved highway by reason solely of its physical proximity to tracts of land confer upon such land a special benefit. This is so because of the facilities and advantages caused by the highway,

So, following this law, we hold that it was competent to show the nature of the improved road and the facilities and advantages afforded defendants’ land caused by the construction of such improvement. We think that .defendants would be per•mitted to show that under exceptional circumstances, as here, no special benefits were conferred but we think there was no merit .to defendants’ contention as stated.

Under allegation of error No. VIII, it is contended that instruction No. 1 given by the court is erroneous because such instruction assumes that there were special benefits and invades the province of the jury.

We do not agree with this contention. Instruction No. 1 merely tells the jury that the burden of proof is upon plaintiff to show by the greater weight of the evidence special benefits, as described in other instructions, conferred upon defendants’ land by the improvement and that-the burden is upon defendants to prove by the greater weight of the evidence that they sustain damages in the taking of- the land in excess of any.special benefits the jury might find from all of the evidence which accrued to the defendants’ land for the construction of the road. This instruction properly states the law, and, when read with other instructions given, could not in any way prejudice the rights of defendants.

Error No. IX contends that the court erred in giving plaintiff’s instruction No. 3, which reads:

“The Court instructs, you that in determining whether there is any damage to the defendant’s land, you shall not take into consideration such inconveniences and disadvantages, if any, to the defendant as are the consequences of the lawful and proper use of .the state highway in question in so far as the same are common to other landowners in the neighborhood, no portion of whose lands is taken for said state highway. Nor shall you consider any inconveniences, disadvantages, qr damages which do not cause a decrease in the market value of the defendant’s land.”

We agree with defendants that this instruction is not based upon any evidence in the case.

Plaintiff cites State ex rel. State Highway Commission v. Watkins, Mo.App., 51 S.W.2d 543, a case in which this exact instruction, was giv.en. But in this case the record'showed that in the trial a concrete road had been constructed and the defendant, over plaintiff’s objection, testified that since the paving of the highway, the noise from the traffic thereon had greatly increased and- that sometimes it kept him awake at night. The testimony was that this road was not a farmer’s road but a road for use of busses and trucks and the court held that the instruction was proper under the evidence;

In the case at bar there was no evidence to justify-the giving of this instruction.- It is merely an abstract statement of law which confused the jury and constitutes reversible error.

Allegation of error No. X complains. that the verdict of the jury was the result of bias and prejudice. We think there was sufficient testimony in the case -to justify the verdict of the jury. This alleged error is without merit.

The cause is reversed and remanded for a new trial for the errors pointed out in the opinion.

RUARK, J., concurs.

1 . Wipfler v. Basler, Mo., 260 S.W.2d 982, 985 (4); Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 102(11); Lomax v. Sawtell, Mo.App., 286 S.W.2d 40, 42-43(4).