Opinion
No. 27948.
May 15, 1951.
APPEAL FROM THE CIRCUIT COURT FOR ST. CHARLES COUNTY, B. RICHARDS CREECH, J.
"Not to be reported in State Reports."
Charles M. Spence, Harold I. Elbert, William Waye, Jr., St. Charles, Thompson, Mitchell, Thompson Douglas, St. Louis, of counsel, for appellant.
H. K. Stumberg, B. H. Dyer, St. Charles, for respondents.
This is a suit to condemn a right of way for an oil pipe line across a farm in St. Charles County. The commissioners assessed the landowners' damages at $2,000. At the trial in circuit court of exceptions to the report of the commissioners the jury awarded the landowners $5,500 damages. The condemnor appealed from the judgment entered upon the verdict.
This is the evidence germane to the issues raised on this appeal: the easement acquired consists of a right of way 80 feet wide and 1,633 feet long running diagonally across a 90.54 acre farm located on the north side of State Highway 94 a distance of 6 3/4 to 7 miles southwest of the City of St. Charles. The petition for condemnation was drawn so that the corporation could lay only one 22 inch pipe, which had to be buried at least 36 inches below the surface of the ground; its rights of ingress were restricted to the two ends of the right of way; the corporation had no right to fence; and the landowners had the right to cultivate and use the strip except during the laying, removing, repairing or inspecting of the pipe line.
The landowners, Alvin H. Bruns and his sister Elma J. Bruns, conduct a general farming operation, producing grain, corn, wheat, oats, hay, hogs, cattle, poultry and eggs. A 6-room brick house, barn, various outbuildings and stock lots occupy 3 acres. The farm is rolling land, fronting some 2,250 feet on the blacktop highway which runs approximately east and west at that point.
The pipe line right of way enters the property at a point on the highway 308 feet east of the west property line of the farm, and runs in a generally northeast direction 120 rods, crossing 5 fences. From the west property line east 800 feet the land along the highway "lays pretty level" with a slight rise from the highway north 300 feet, where it crests and runs level for another 250 feet north, then slopes downward.
Over the objection of the condemnor, Alvin Bruns was permitted to testify that the land fronting on the highway "is well adapted for building lots." He further testified that the land east of the house was worth just as much for building sites as that on the west; that his land compared favorably with other lands that have been subdivided and sold off in small lots; that although he had not subdivided any of his property and offered it for sale, there has been "a demand for small acres of land, half an acre, an acre, or an acre and a half, along that road in the territory * * * for the building of homes since 1941"; that there is such a demand now; that "there is several asked, come to the home and asked for building site for several years"; that he was damaged $5,580 on the west 800 foot frontage along Highway 94; that prior to the pipe line that frontage was worth $10 per front foot for building site purposes, but after the pipe line "it will fall back into farmland; sell it as farmland."
Witness George Dierker testified that the west 800 foot frontage of the Bruns farm before the pipe line went through was "high-type farmland in a high state of cultivation * * * desirable for acreage"; that "land up and down the highway, both ways from this land, this particular piece of land, was being sold for building lots, and this particular farm is ideally situated for that type of development." He further testified that the fair market value of the west 800 foot frontage in question, prior to its appropriation, was $800 per acre.
Witness Kurt Achelpohl testified that the "highest and best use" to which the west 800 foot frontage of the Bruns farm was adaptable and suitable was that of "selling in small acreage"; that it would be adaptable to the same sort of subdivision in lots of one-half acre or one acre in size, with approximately 100 foot frontage, as other tracts in the immediate vicinity along the highway which had been sold in that manner; that there was a market for lots of that nature at that place on the date of the appropriation; that the market price of such lots at that time was $1,000 per acre; that the fact that the area is crossed by a pipe line would affect its marketability, and decrease its value, depending upon the point at which the line crossed; that some of the lots would be rendered worthless for building sites.
The trading center nearest the Bruns farm is called "Harvester". Harvester is located approximately 6 miles southwest of St. Charles on Highway 94. It consists of a general store, tavern and garage. One-fourth mile west of Harvester a Lutheran Church is located. The Bruns home is 3/8 mile west of the church. The Francis Howell High School is located 1 mile west of the Bruns home. Highway 61, which crosses the Missouri River over the Daniel Boone Bridge, intersects Highway 94, 5 or 6 miles west of the Bruns home. Highway 94 is the most direct connection between the St. Charles and Daniel Boone Bridges over the Missouri River.
Evidence of activity in the vicinity in the sale of small acreage for building sites indicated that Howell High School was built in 1942; that in the 8 miles between St. Charles and "on beyond the high school" there "have been a good many building lots, small acreages, sold along 94 that entire distance"; that Earl Hoffman, whose land lies across the highway from the Bruns farm, sold 4 half-acre lots in 1948 and 1949 (this case was tried in November, 1949); that these lots sold at $450, $475, $500 and $625, respectively, and have been improved by the building of residences thereon. Hoffman testified that the Bruns land is about the same as Hoffman's land "as to the elevation, frontage, drainage and other conditions." Theodore Schneider sold 2 lots. A tract of 1.25 acres was sold near the high school for $1,100 and a home was built on it; another was sold half way between the high school and the Bruns farm. Upon the latter lot, 100 x 500 feet, a dwelling house has been built. Schneider testified that his ground is of the same general character as Bruns. One lot was sold from the Bruenger farm. One Hollenbach built a house near the highway, and on the St. Peter's Road which runs north from the high school, 2 new homes have been built since 1942. Schneider also sold 4 other lots on St. Peter's Road 400 to 500 feet off Highway 94. There are 4 houses between the high school and the Bruns farm. The evidence indicated that 7 new homes have been built on small lots and 1 farm house constructed along the highway east of the Bruns home beginning 1/8 mile east and at intervals on both sides of the highway for 3/8 mile. George Dierker testified that there are 13 houses between the Lutheran Church and the Bruns home, 2 of which are farm houses, and 11 of which have been built in recent years — 6 built in 1948 and 1949; that the Bruns land from the house east to the east line of the farm was equally available for building sites; that defendants had 2,000 feet of frontage on the highway for that purpose or a potential of $20,000 for 100 foot building sites along the highway, excluding the homesite, which is worth $5,000, according to the witness. He stated that the "potential" no longer exists where the pipe line is placed. The witness did not think it would take "too much" grading of the 800 foot frontage to use it as homesites; that "it would lend itself to staking out just about as it is." Earl Hoffman testified that immediately before its appropriation the 800 foot frontage "was adaptable to subdivision into smaller tracts of an acre or half acre" and that prior to that time "it could have been all sold; there was outlets for it; * * * there was demand; still demand out there * * * for building sites along highway 94 there." The witness stated that the frontage where the pipe line went across is not now adaptable for building site purposes.
Vernon Meers, who lives on the highway near the Bruns, testified that all the property in that vicinity along Highway 94 is available for homesites and that "all of it could be sold for that if the owners would be willing to sell it"; that "there has been a pretty good demand for it, and I think if it were advertised it could be sold shortly * * * if they keep on building like they have, it wouldn't take too long (to sell some 70,000 feet of frontage along the highway); it shouldn't take over four, five years." (Parentheses ours, taken from questions asked by counsel.) He testified that although his father had not sold any of his farm off as small acreage "there has been several — there has been people over there wanting to buy some frontage."
The fair market value of tracts 100 feet wide and 450 to 500 feet in depth along the highway in that vicinity, depending upon the topography of the land, would run from $700 to $1,200, according to George Dierker. Witness Achelpohl testified that there is a demand in that vicinity for small tracts with 100 foot frontage on the highway and he placed their market value at $1,000 per acre as of the date of the appropriation and just prior thereto.
On the question of the damage to the farm as a whole, the testimony offered by defendants was as follows:
Value Before Value After Witness Appropriation Appropriation
Alvin H. Bruns $22,500 ($250 per acre) $13,377 George Dierker $22,500 ($250 per acre) $16,534 Kurt Achelpohl $275 per acre $200-210 per acre Theodore Lammert $350 per acre $200 per acre Vernon Meers $250 per acre $200 per acre
The first assignment of error is the refusal of the court to give the following instruction offered by condemnor: "The jury are instructed that they must not consider in estimating either the value of the land taken or the damages, if any, to the remainder thereof a mere possibility that said property at some time in the future may become available as subdivision property."
Condemnor contends that the evidence must show that the land is adaptable for subdivision and that its use for building sites is reasonably foreseable in the near future; that there must be a fairly ready market. Cases are cited which hold that there must be a "reasonable possibility", Olson v. United States, 292 U.S. 246, 54 S. Ct. 704, 78 L.Ed. 1236, or a "reasonable probability" of the use, United States v. 711.57 Acres of Land, D.C., 51 F.Supp. 30; that the availability of the property for the most profitable use "does not refer to a future possibility but to a present capacity for a use which may be anticipated with reasonable certainty and made the basis of an intelligent estimate of value", Illinois Power Light Co. v. Parks, 322 Ill. 313, 153 N.E. 483, 487; that "mere possibility of development" is insufficient to recover damages on the basis of adaptability for use as building lots, Board of Hudson River Regulating District v. John A. Willard Realty Lumber Co., 144 Misc. 478, 258 N.Y.S. 876, 878; that insubstantial, remote, speculative and conjectural possibilities that the land may be sold for lots are not sufficient, People v. McReynolds, 31 Cal.App.2d 219, 87 P.2d 734; State v. Hoblitt, 87 Mont. 403, 288 P. 181. Condemnor claims that the evidence as to availability or suitability of part of the land for sale as acreage is speculative, remote and conjectural; that the offered instruction was designed to take that evidence from the consideration of the jury.
The assignment is ruled against the appellant. While we find no fault with the general principles of law announced in the cases cited they do not compel the giving of this instruction. Our review of the evidence convinces us that there was substantial, competent evidence that the land was adaptable for subdivision purposes; that many bona fide sales of similar land in that vicinity recently had occurred; that there was a "fairly ready" market for such land; that there was a reasonable probability of its sale and that its use for the purpose was not an imaginary, remote and speculative future possibility. The jury properly could have concluded from this evidence that the value of the land as potential homesites "entered into and affected its market value."
The proposed instruction was cautionary. The giving of cautionary instructions is not a matter of right but is discretionary with the court. Conner v. Aalco Moving Storage Co., Mo.App., 218 S.W.2d 830. Considering the other instructions given by both parties it cannot be said that the jury was not fairly and correctly instructed upon the issue of value of the land. By Instruction No. 3 the jury was authorized to take into consideration in fixing the value of the land "such uses as may be reasonably expected in the near future" (italics ours) and "bona fide sales of property in the immediate vicinity and similarly located" made at or about the time of the appropriation. Instruction E, given by the court at the request of the condemnor, instructed the jury "that in determining the uses and purposes for which defendants' land was suitable or adaptable, the jury are not confined solely to the use, if any, made of said land at the time it was taken by plaintiff, but may also consider such uses, if any, for which it was reasonably adaptable at that time, considering its location and surroundings." With these guides the jury was sufficiently instructed. There was no abuse of discretion in refusing the cautionary instruction.
Appellant contends that it was error to give that part of defendants' Instruction No. 1, as follows: "The `just compensation' to which said defendants Alvin H. Bruns and Elma J. Bruns are entitled by law is the difference in the fair market value of said defendants' whole tract of land immediately before and immediately after the appropriation of the right of way or easement taken by the plaintiff the Shell Pipe Line Corporation, in view of the uses to which the property was susceptible of being put." (Italics ours.)
It is urged that by the italicized portion of the instruction the jury was permitted to speculate as to future uses of the property which might make the defendants' land more valuable (as acreage) but which at the time of trial did not affect its market value.
The point raised is closely akin to the first assignment of error. As we have seen, there was sufficient evidence from which the jury could conclude that the property presently was adapted to use and salable as acreage sites. It was altogether proper for the jury to consider "the uses to which the property was susceptible of being put" under the evidence in this case.
Appellant on the record is in no position to attack this instruction on this ground. Appellant's Instruction E, supra, allowed the jury to consider not only the use of the land for farming purposes, but also any uses "for which it was reasonably adaptable at that time, considering its location and surroundings." What use could have been referred to by the quoted portion of Instruction E or of the portion of Instruction No. 1 under attack other than use for acreage homesites, under this evidence? There is no substantial difference between "suitable and adaptable" uses, as used in appellant's instruction, and "uses to which the property was susceptible of being put" as employed in defendants' instruction. Although appellant complains of the use of the word "susceptible" at page 25 of its brief, it employs the same term in the same sense at page 21, in this language: "The lack of these modern facilities clearly demonstrates that this area is not available, suitable or susceptible for subdivision purposes." The assignment is without merit.
Condemnor asserts that reversible error occurred when the trial court allowed defendants' expert witnesses to value separately, as acreage, that part of the farm through which the pipe line passed instead of confining the proof of damages to the difference in the market value of the property as a whole, before and after appropriation. There is no doubt that the value of such detached portion of the farm was allowed to be separately appraised by the witnesses, over the strenuous objection of the condemnor. Witness Dierker valued the west 800 feet fronting on the highway, prior to the appropriation, at $800 an acre whereas he valued the farm as a whole at only $250 an acre. Witness Achelpohl valued the west 800 feet (in fact he valued the entire 2,000 foot frontage) at $1,000 an acre and the whole of the farm at only $275 an acre.
The cases upon which appellant relies, Lough v. Minneapolis St. L. R. Co., 116 Iowa 31, 89 N.W. 77, and Welton v. Iowa State Highway Commission, 211 Iowa 625, 233 N.W. 876, plainly hold that it is error to divide the whole into parts and value it in detached pieces as the basis for the evaluation of the entire tract in condemnation suits, but we have found no Missouri case prohibiting the practice. On the contrary, all of the expressions of the courts of this state found on this subject approve the proof of damages to separate parcels or portions of the whole property where there is evidence of the depreciation of the whole property and where the jury clearly is instructed that the measure of damages is the fair market value of the entire tract before and after the appropriation when considered as a whole, and the extent to which that value has been diminished in view of the use to which the portion condemned should thereafter be applied. St. Louis, O. H. C. R. Co. v. Fowler, 113 Mo. 458, 20 S.W. 1069; State ex rel. State Highway Commission v. Young, 324 Mo. 277, 23 S.W.2d 130; State ex rel. State Highway Commission v. Graham, Mo.App., 74 S.W.2d 493.
The Fowler case, supra, was a condemnation suit for railroad right of way over a 24 acre tract. The railroad cut off 3 or 4 acres in the northeast corner. A witness for the landowners testified that the whole tract was worth $1,800 to $2,000 per acre, and that the 3 or 4 acre tract was damaged 50% of the above stated value. He testified that the balance of the tract was damaged about 25%. The admission of this evidence was assigned as error, but was approved in this language, 20 S.W. loc. cit. 1072: "The objection interposed to this question was and is that it allowed the defendants to make imaginary subdivisions of the tract, and then show that the portions set off by these imaginary lines were damaged. There is no merit whatever in the objection. It is very true, as we have held, that the damages to be allowed by the jury are not confined to the small parcels or government subdivisions over which the railroad may pass. The landowner is entitled to the damages for the injury to his whole tract, not simply to the parcels touched by the road. But, in order to enable the jury to reach this result, it is perfectly competent and proper to show what parcels are injured, and to what extent they are injured. The witness being of the opinion that the land next to the railroad would be injured, he had the right to express this opinion, and to point out on the map in evidence to what distance from the railroad it would be injured. From all these details the jurors can make up their verdict as to the damage to the whole. Such evidence is far more satisfactory than that drawn from the witness by one general question, which undertakes to cover the whole issue to be decided by the jury." (Italics ours.)
In the Young case, supra, the Supreme Court considered the action of the trial court in allowing the witnesses to restrict their testimony as to damages to those accruing to an 89 acre tract across which the highway ran, when the entire farm consisted of 698 acres. Parts of the larger tract were rented to various tenants, each of whom farmed a separate tract, but the whole 698 acres were included in one ownership. Adverting to the rule that "where a tract of land consists of several parcels all connected and forming one body and owned and used together for a common or general purposes and as one property, the jury, in estimating the damages sustained by the owner by reason of the condemnation, should consider the injury to the whole, and not simply the injury to the parcels touched by the appropriation", and stressing that the evidence "must in its essence relate ultimately to the whole" the court reversed the judgment, but carefully pointed out that "it was not improper to develop in evidence any injury sustained * * * by any parcel, if it was considered in relation to the rest of the farm and would by reason of its nature affect the value of the farm as a whole." 23 S.W.2d loc. cit. 132. The court further said, 23 S.W.2d loc. cit. 133: "We do not mean to say evidence showing the monetary damage to a particular parcel of a whole tract would not be admissible in any circumstances. The evidence might be connected up with other evidence so as to become competent, * * *."
In the Graham case, supra, a right of way for highway purposes was condemned through a 93 acre farm at the outskirts of Fredericktown. The witnesses based their estimates of damages on the value of the land taken, the separation caused by the highway, the irregularity of the shapes of the remaining tracts, the necessity of fences, the inconvenience of crossing the highway with stock, crops and machinery, and the loss of water to one tract, but the trial court excluded "evidence relating to the availability and values of portions of the farm for acreage building sites." This court held that the trial court erred in excluding this evidence, saying that in determining damages "the value of the property is to be considered for any use to which it is reasonably adapted." 74 S.W.2d loc. cit. 495; State ex rel. State Highway Commission v. Southern Securities Co., Mo.App., 60 S.W.2d 632. We further said, 74 S.W.2d loc. cit. 495: "The court also erred, we think, in refusing to permit plaintiff to cross-examine defendant's witnesses relative to * * * the values of the several separate tracts into which the farm is divided. The construction of the highway left the farm in four separate and distinct tracts * * *. We can see no reason why plaintiff was not entitled to cross-examine the witnesses relative to the values of these separate tracts. Such cross-examination was competent to test the witnesses. (citing authorities). Moreover, we think the values of these separate tracts as such, having in view the uses to which they may be reasonably adapted, are competent evidentiary facts going to show the damages resulting to the farm as a whole from the construction of the highway, which is the ultimate fact for the determination of the jury." (Our emphasis.)
In the case at bar, notwithstanding the admission of evidence as to the value and damage to certain parts of the farm, the case was not tried in such fashion as to give the jury the impression that the landowners were entitled to double damages, or compensation for the various parts or parcels as independent items of damages. On the contrary the case was put to the jury on the basis that the landowners were entitled to damages for depreciation of the market value of the farm as a whole. In the opening statement for landowners counsel stated the true rule (difference in the market value of the farm immediately prior to the taking and the market value of the farm immediately after, with a pipe line though it). In the presentation of the landowners' evidence five witnesses, including defendant Bruns, gave the jury their opinion as to the value of the farm as a whole, before and after. Likewise, the condemnor's witnesses told the jury their opinions of the value of the whole farm before and after. The jury was carefully instructed that their search was for the amount which represented the difference between the value of the whole farm before and after the appropriation. Instruction No. 1 refers to "* * * whole tract of land * * *," and Instruction No. 2 refers twice to the "* * * farm as a whole * * *." Under these circumstances the evidence that the frontage was worth $800 or $1,000 an acre for building sites before, and was valuable only as farm land after, the appropriation could not have misled the jury or induced any juror to misconceive the true rule of damages. It must have been apparent to all that the evidence of the value of the parts was relevant only in determining the value of the whole, and that it was as proper to receive the evidence of depreciation of the value of the 800 foot frontage as building lots as it was to receive evidence of other damages suffered by defendants, such as the inconvenience in crossing the washed-out ditches, the timber cut, fences loosened, crops damaged, the liming and fertilizer necessary to get the right of way back into cultivation, the labor spent in filling up holes in the pasture, "damage to the title" et al., all of which separate items of damage were elicited by counsel for the condemnor on recross-examination. These items of damage were not to be assessed separately and independently but, taken along with the testimony as to the difference in the market value of the whole tract before and after appropriation, were of assistance in arriving at the jury's final determination of the depreciation of the market value of the farm as a whole. They related "to the condition of the property which would naturally impress a person of ordinary prudence in negotiating for the purchase of the same" within the rule laid down by this court in City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149.
Finally, condemnor assails defendants' Instruction No. 2 wherein it allows the jury, in determining the damage to the farm as a whole to consider, among other things, "the shape of the different tracts into which said farm is divided by said pipe line." It is true, as condemnor contends, that a pipe line does not divide a farm into separate tracts, unless a fence is erected, and that condemnor here gave up its right to fence. It is also true that such an instruction, while appropriate in a highway condemnation. State ex rel. State Highway Commission of Missouri v. Haid, 332 Mo. 606, 59 S.W.2d 1057, is inept and confusing in a pipe line case. It should not have been given. While it was error, we do not regard it as harmful in the sense that it entered into and became a part of the verdict so as to affect the substantial rights of the condemnor.
Finding no reversible error, the Commissioner recommends that the judgment of the trial court be affirmed.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the trial court is, accordingly, affirmed.
ANDERSON, P. J. and McCULLEN and BENNICK, JJ., concur.