State ex rel. State Highway Commission v. Volz Concrete Materials Co.

330 S.W.2d 870, 1960 Mo. LEXIS 869
CourtSupreme Court of Missouri
DecidedJanuary 11, 1960
DocketNo. 47234
StatusPublished
Cited by6 cases

This text of 330 S.W.2d 870 (State ex rel. State Highway Commission v. Volz Concrete Materials Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri 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. Volz Concrete Materials Co., 330 S.W.2d 870, 1960 Mo. LEXIS 869 (Mo. 1960).

Opinion

COIL, Commissioner.

In this condemnation case the State Highway Commission has appealed from a judgment entered on a jury verdict for $38,000 in favor of respondent, Volz Concrete Materials Company, a corporation. Appellant adduced substantial evidence tending to show that there had been a net increase in the value of respondent’s property. Consequently, the amount in dispute exceeds $7,500.

Respondent was in the cement products business in St. Louis County and, prior to the highway construction here involved, its plant was adjacent to and on the north side of Page Avenue some distance west of Walton Road. Page, then a 20-foot concrete road, was also known as Route D and ran generally east and west. Entrance to Page from respondent’s premises was at grade level and was accomplished by a right or left turn. Route D as reconstructed (herein sometimes called “new Page”) beginning at a point on old Page near the west line of respondent’s property, curved southeast away from old Page, and at a place about even with the east line of (but south of) respondent’s property new Page crossed railroad tracks by means of an overpass and extended on southeast-wardly and then eastwardly to Walton Road. West of Walton for some distance old Page was made an outer service roadway whose eastern terminus connected with new Page at Walton and whose western terminus connected with new Page at a point eighty or ninety feet east of respondent’s west property line. The surface of new Page was considerably higher than old Page as the overpass was high enough to permit railroad cars and other vehicles to travel thereunder. New Page was also connected with old Page by a ramp which led from the south side of new Page at a point just east of the overpass and continued downwardly and to the right circling under the overpass and extending north to old Page.

Respondent’s plant entrance was near its east property line and its office building-near its west property line. The property condemned consisted of a strip of land ten feet wide adjacent to old Page and beginning at respondent’s west property line and extending eastwardly for 357.37 feet; a construction easement in a strip of land immediately north of the land just described extending the same 357.37 feet in length and for varying widths of from five to fifteen feet; and a triangular tract fronting about 45 feet on the south side of old Page (across from the plant) and extending on each its east and west sides about 80 feet There was reserved to respondent the use of a railroad spur which crossed that tract. The ground had been used by respondent not only for access to its plant by railroad but also to store and load aggregate materials sold by respondent.

After the construction, respondent’s access to travel west on new Page was up a [873]*87312 per cent grade service road (old Page) and onto new Page at a point just east of respondent’s office building. Respondent’s access to travel east on new Page was to drive south out of the plant entrance, under the overpass, turn left and trayel up the ramp leading into the south side of new Page, or turn left at the plant entrance onto old Page and proceed east to the place where new Page crossed Walton Road.

Respondent’s evidence generally tended to show that the taking and the new construction had in effect put respondent’s plant “down in a hole” with respect to new Page, had reduced or eliminated the parking space formerly in front of the office, had caused some damage because of former drainage facilities having been eliminated, had caused double handling of materials, that the steep grade of the service road to the west made it difficult or impossible for trucks carrying ready-mixed concrete to climb the hill when the road was covered with snow or ice, and that, irrespective of weather, the concrete would spill as the trucks went up the steep incline, and that the methods of access to new Page to the east were also unsatisfactory.

One of respondent’s experts testified that the value of the property before the taking was $612,000 and after was $545,000, and of the $67,000 difference, $60,537 was for damage to the remainder. Respondent’s other expert’s testimony, while not identical, was for our purposes the same. One of appellant’s experts placed the value of the property, excluding machinery, before taking at $296,000 and after at $304,500, an increase of $8,500. Appellant’s other expert found a net increase in value of $15,000.

Appellant contends the trial court erred in giving three instructions and in the admission of evidence.

Respondent’s instruction 1 was:

“The Court instructs the Jury that in determining whether there have been damages to the Volz Concrete Materials Company you will consider the taking of the land for the highway, including the triangular area lying south of the old highway and now situated under or near the overpass on which the defendant, Volz Concrete Materials Company, formerly unloaded their materials from railroad cars on the west side of said railroad spur track; the damages, if any, of making more difficult the access to the Volz Concrete Materials Company’s whole property; the inconvenience, if any, it leaves said company in getting in and out of said property, and any impediments in the ingress and egress thereto, if any, and any drainage damage, caused by said taking of defendant’s land, if any; and any deprivation of private parking areas, caused by the taking of defendant’s land, if any; any damage occasioned by the double handling of defendant’s products occasioned by the taking of defendant’s land, if any; any damages, if any, by reason of the use of the temporary easement on defendant’s property, and the condition in which the property of defendant is left as a whole, by such damage if any.

“And in considering all such items of damage as disclosed by all the evidence, if any, you should consider how much, if any, the defendant’s property has depreciated in value, as a whole, including the plant thereon.”

Appellant contends the foregoing instruction constitutes a comment on the evidence, compounds the elements that the jury is to consider, states them argumentatively, authorizes the allowance of double damages, and gives the jury a roving commission.

While we agree that the instruction in one respect at least goes into more evidentiary detail than would have been necessary or desirable, nevertheless, it appears that in applying the usual rule that it is proper to advise a jury what elements it may consider in estimating the amount of damages, we have approved instructions in condemnation cases which go into consid[874]*874erable detail in describing specific matters which may be considered. While the case of State ex rel. State Highway Commission v. Day, 226 Mo.App. 884, 47 S.W.2d 147, ISO, relied on by appellant, gives some support to its contention that the instant instruction is argumentative in form, still, the present instruction is more like the one (in so far as concerns the present question) approved by this court in State ex rel. State Highway Commission of Missouri v. Haid, 332 Mo. 606, 59 S.W.2d 1057, 1060 [12-14], than that considered in the Day ■case, supra. See also State ex rel. State Highway Commission of Missouri v. Caruthers, Mo.App., 51 S.W.2d 126, 131 [7], which distinguished the prior ruling in the Day case, supra.

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Bluebook (online)
330 S.W.2d 870, 1960 Mo. LEXIS 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-state-highway-commission-v-volz-concrete-materials-co-mo-1960.