Summary
In City of St. Louis v. Sheahan, 327 Mo. 305, 36 S.W.2d 951, 954, the court recognized and quoted the rule stated in Nichols on Eminent Domain, Vol. 2, Second Edition at page 1189: "`If the jury is to be aided by evidence in regard to property similarly situated, it must be by facts and not by opinions.'"
Summary of this case from Missouri Public Service Company v. HuntOpinion
March 25, 1931.
1. CONDEMNATION: Excessive Damages: Passion and Prejudice. In an action by the city to condemn a right of way for a water-pipe line, one hundred feet wide and one thousand feet long, through a tract of thirty acres, where the commissioners assessed the damages at a larger amount than did the jury upon a trial of exceptions filed by the city, it will not be held that the damages assessed by the jury were so excessive as to indicate passion and prejudice on their part, where there is much evidence tending to show larger damages and the award received the approval of the trial court.
2. ____: Damages: Weight of Evidence: Approval by Trial Court. Where the trial court passed upon the weight of the evidence relating to the amount of damages in a condemnation case and approved the award of the jury, this court is not at liberty to disturb the court's findings in that respect, unless it is shown that the trial court's discretion in that respect was abused.
3. ____: Excessive Damages: Passion and Prejudice: Estimate of Commissioners. The fact that three of the witnesses, who testified for the property owners at the trial of the condemnor's exceptions to the award of the commission, which had assessed the damages at a larger sum than that awarded by the jury, were commissioners, is not proof that the damages assessed by the jury were excessive as to show the jury were influenced by passion and prejudice, where there is nothing in the record tending to show that they were biased in favor of the condemnor or tempted to render a large award in favor of the property owners. In the absence of such showing, the proper conclusion is that the commissioners gave the matter a more thorough investigation than did the other witnesses, and were therefore better competent to estimate the damages.
4. ____: Commissioners as Witnesses. Commissioners who have assessed damages in a condemnation proceeding are competent witnesses in a trial of exceptions to their award of damages before a jury, but the fact that they were commissioners should not be brought to the jury's attention; but the fact that they were commissioners and their testimony incompetent is not indirectly made known to the jury by their testimony that they went together to estimate the damages and agreed upon the amount, to which no objection is made, and counsel for appellant ask them the only question from which it might be inferred that they were commissioners.
5. ____: Evidence: Value of Land: Opinion. The testimony of a witness, who has testified that the value of the thirty-acre tract through which the city has extended a water-pipe line is $3500 per acre, that the value of the land across the road is $3500 per acre, is not hurtful, even if immaterial and a mere opinion; but it is not a mere opinion, but is competent, if he says he knows its value.
6. ____: ____: ____: Knowledge from Sales. Knowledge of the value of other property than that being condemned, by what it sold for, is competent evidence.
7. CONDEMNATION: Evidence: Value of Land: Sales in Neighborhood. Evidence of voluntary sales of land in the neighborhood of that being condemned is competent evidence on the issue of the amount of damages.
8. ____: ____: ____: Remote Sales. Evidence of the sales of lands in the neighborhood years before the trial at prices far less than the admitted value of the lands through which the easement is being condemned, with no showing of an enhancement in value between the date of the sales and the date the defendant bought his property, cannot damage the condemnor.
9. ____: ____: Abandoned Petition. It is not error to permit the defendant in the condemnation proceeding to offer in evidence the abandoned petition of the condemnor which contained allegations, not appearing in the amended petition, regarding the character of the excavation and the depth to which the water pipes were to be laid, as an admission affecting the amount of damages.
Appeal from St. Louis County Circuit Court. — Hon. G.A. Wurdeman, Judge.
AFFIRMED.
Julius T. Muench and Richard S. Bull for appellant.
(1) The award of $14,250 damages for the taking of an underground pipe-line right-of-way through less than two acres of idle, unimproved and unproductive country land, where there is no substantial showing of present and material damage to the balance of a thirty-acre tract, is clearly wrong, and is so grossly excessive as to indicate the influence of passion or prejudice, and such award should be set aside on that ground alone. Jones v. Ry. Co., 287 Mo. 78; Kennedy v. Transit Co., 103 Mo. App. 1; 20 C.J. 1119, sec. 488; 2 Nichols, Eminent Domain (2 Ed.) 1191. (2) It is prejudicial error, in a jury trial in condemnation, to admit evidence which advises the jury of the amount awarded by the commissioners, and it is as improper for this to be done indirectly as directly. School Dist. v. Phoenix, 297 Mo. 332; Kansas City Ry. Co. v. Second St. Imp. Co., 256 Mo. 386; Railway v. Pfau, 212 Mo. 398; Railway v. Roberts, 187 Mo. 309; 2 Nichols, Eminent Domain (2 Ed.), sec. 431, pp. 1136-1138. (3) It is error to permit a witness to state his opinion of the value of neighboring land. 2 Nichols, Eminent Domain (2 Ed.), sec. 453, p. 1189; Beale v. Boston, 166 Mass. 53, 43 N.E. 1031; Haven v. Essex County Commrs., 155 Mass. 467, 29 N.E. 1085; Kansas City Ry. v. Vickroy (Kan.), 26 P. 699. (4) Evidence of sales of other land, not shown to be of a similar nature or located nearby, and remote in time, should not be admitted. School District v. Phoenix, 297 Mo. 332; Hewitt v. Price, 204 Mo. 31; St. Louis, etc., Ry. Co. v. MacAdaras, 257 Mo. 448. (5) The introduction in evidence of part of an abandoned pleading, which is incompetent and which can serve no purpose but to confuse and prejudice the jury, even though it be claimed to be an admission against interest, is reversible error. The second amended petition, and not the original petition, determined the issues in this case. Brierre v. Cereal Co., 102 Mo. App. 622; 38 Cyc. 1482-1483; 22 C.J. 299, sec. 331.
Holland, Lashly Donnell and Ralph C. Lashly for respondents.
(1) The verdict of $14,250 was supported by the weight of the evidence, and the evidence would have justified a verdict even substantially larger than the one that was rendered. (a) The measure of damages in condemnation, when a part only of the land is taken, is the difference between the fair market value of the entire tract before and after the appropriation. Prairie Pipe Line Co. v. Shipp, 267 S.W. 647, 305 Mo. 663; Mo. Constitution, Art. II, Sec. 21. (b) The judgment of a trial court in a condemnation proceeding based upon a verdict of a jury, which was supported by testimony, will not be disturbed on appeal. 20 C.J. 1116, sec. 448; Gary v. Averill, 12 S.W.2d 747; Prairie Pipe Line Co. v. Shipp, 267 S.W. 647, 305 Mo. 663; Shelby County Railroad v. Dimmitt, 235 Mo. 489; City Water Co. v. Hunter, 6 S.W.2d 567; In re Condemnation of Property for Park, 263 S.W. 98; Rich Hill Drainage Dist. v. McCormick, 260 S.W. 79; Springfield v. Owen, 262 Mo. 92. (2) The award of the commissioners was not brought before the jury by respondents, in any form. The commissioners are competent witnesses at the trial, and though the jury in this case were never informed that the commissioners were testifying, it is nevertheless not error if the jury are told that the commissioners are testifying before them. Cape Girardeau v. Hunze, 284 S.W. 471, 314 Mo. 438, 47 A.L.R. 25; St. Louis v. Abeln, 170 Mo. 326, 70 S.W. 710. (3) There was nothing prejudicial in the admission of any testimony pertaining to the value of neighboring land. Slotze v. Manitowoc Terminal Co., 75 N.W. 987, 100 Wis. 208; Morrison v. Watson, 101 N.C. 332; R.S. 1919, sec. 1513. (4) The testimony of witness Baumhoff as to sales in the vicinity was competent as showing his qualifications, and was not prejudicial to appellant. R.S. 1919, sec. 1513. (5) The reading of a portion of the original petition to the jury was proper, because same was admissible as an admission against interest. Andrus v. Business Men's Acc. Ass'n, 223 S.W. 70, 283 Mo. 442; Burton v. Phillips, 7 S.W.2d 714; Parsons v. Harvey, 221 S.W. 22, 281 Mo. 413; Merriwether v. Publishers: George Knapp Co., 224 Mo. 617.
This proceeding, begun in May, 1925, in the St. Louis Circuit Court, was to condemn a right of way one hundred feet wide for water-pipe line through a tract of land in St. Louis County belonging to respondents, Dr. Edwin L. Sheahan and his wife Deborah M. Sheahan.
They owned a tract consisting of thirty acres and the right-of-way condemned goes through this tract a distance of a thousand feet. Commissioners appointed by the court assessed defendant's damages at $17,255.80. The city filed exceptions. The court ordered a trial by jury, which rendered a verdict for the defendants for $14,250. From the judgment the city appealed in due form.
I. The first assignment of error made by appellant here is that the award of $14,250 damage was so excessive as to indicate the influence of passion or prejudice on the part Excessive Damages: of the jury. Passion and Prejudice.
The defendants introduced a number of witnesses who qualified as experts in valuing real estate.
Dr. Sheahan testified that his damage was twenty-nine thousand dollars. He estimated the thirty acres of land as worth thirty-five hundred dollars an acre. The amount taken in the hundred-foot strip was 1.93 acres. It cut off 1.86 acres from the main body of the tract, making that piece practically worthless. The damage to the entire tract was because the easement for the pipe line interfered with his sewerage and drainage and made it difficult to lay the tract off in lots in a satisfactory manner.
Mrs. Mehl, a real estate agent, testified about sales she had made in the vicinity, apparently on land in like situation: one tract of two acres for $7,000; one two-acre tract for $7,500; a one-acre tract for $11,000, and a three-acre tract for $10,000, and a three-and-a-half-acre tract for $12,000.
Mrs. Heinsohn testified that she sold a six-acre tract about two blocks from the Price Road upon which the Sheahan land fronts for three thousand dollars an acre.
Witness Sertier testified that he sold a four-acre tract about a quarter of a mile north of the Sheahan property for four thousand dollars an acre.
Emil Dosenbach testified that he had made careful examination of the property and estimated Sheahan's damages at $17,300.
Mr. Jacobsmeyer testified to a similar examination and estimated the damage at $17,369.
Mr. Morgan testified to such examination and placed the damage at $17,396.
Mr. Keith testified that the Sheahan tract in November 1925, was worth $2500 an acre, and Sheahan's damage he estimated at eighteen thousand dollars.
Frederick Pitzman, civil engineer, testified that the strip of Sheahan's property taken off was rendered useless and that another triangular piece would be nearly useless from a subdivision standpoint, and that the remainder of the land was damaged from a sewer standpoint because to drain it would necessitate going under the right-of-way, and an engineer in doing so would encounter a very serious problem.
Mr. Remeley testified that without figuring improvements the Sheahan property was worth about fifty thousand dollars, and averaged the property at three thousand dollars an acre.
The city introduced evidence tending to show the pipe line did not have the damaging effect testified to by defendant's witnesses.
Mr. Wood testified that the Sheahan tract was worth about one thousand dollars an acre, and that the damage was about three thousand dollars caused by the right-of-way.
Mr. Shields testified that the tract was worth $36,000, and estimated the damage caused by the easement at $2,724.44.
Mr. Elbring testified for the city that the value of the Sheahan tract in November, 1925, was $1350 an acre. He estimated that the damage caused by the easement was two thousand dollars, and the value of the strip taken off by the right-of-way one thousand dollars.
It was shown on examination of Dr. Sheahan that he gave $18,500 for the thirty acres five years before, though he testified that values had greatly advanced since his purchase. It was further shown by the city that other tracts on the road upon which the tract fronted were bought at an average of sixteen hundred dollars an acre, and one tract for a thousand dollars an acre.
We are unable to see from this evidence that the award of the jury indicates passion and prejudice. The trial court passed upon the weight of evidence, and we are not at liberty to disturb the court's finding in that respect unless it is shown that the trial court's discretion in that respect was abused, which does not appear.
A point is made that the alleged error is emphasized because three of the defendants' witnesses, Dosenbach, Jacobsmeyer and Morgan, who substantially agreed on the amount of the damages, were the commissioners appointed by the court in the first place to assess the damages. Nothing in the record tends to show that those witnesses were biased in favor of the city or had temptation to render a large judgment in favor of the property owners. They probably gave the matter a more thorough investigation than the other witnesses and were therefore better competent to estimate the damages.
II. The appellant does not claim that those commissioners were not competent witnesses, but does claim that the jury should not have been apprised that they were the commissioners who assessed the damages originally, and complains that the Commissioners court permitted tactics employed by defendants' as Witnesses. counsel in indirectly getting before the jury the fact that those three witnesses were the commissioners. The specific complaint is that it was brought out in the testimony of each of them that they were together when they examined the property for the purpose of estimating the damage, and substantially agreed on the amount of damage; that the jury would therefore infer that they had appraised the damage as commissioners.
When Mr. Dosenbach was on the stand the defendants' counsel asked and he answered the following question:
"Q. With whom, if anyone, did you go on the land? A. The last time I went by myself.
"Q. And prior thereto did you go in company with others? A. Yes, sir. I was there with Mr. Morgan and Mr. Jacobsmeyer.
"Q. You were there with Mr. Morgan and Mr. Jacobsmeyer? A. Yes sir."
There was no objection to this testimony. The witness then testified at length as to his knowledge of property in the city. Finally when the witness was asked his opinion of the damage the plaintiff made this objection in the absence of the jury:
"MR. BULL: Your Honor. I will object to any testimony by this witness as to the valuation of this property or the damage sustained on account of the fact that the record shows he had been one of the commissioners in this case, and that any opinion advanced by him would be but a statement indirectly of the findings of the commissioners in the case."
Jacobsmeyer was asked if he examined the property and determined the amount of damage suffered by Dr. and Mrs. Sheahan. The defendant objected to that question in this form:
"MR. BULL: I make the same objection that I made to Mr. Dosenbach's testimony."
The witness then testified and was cross-examined at length. On re-cross-examination in answer to questions asked by Mr. Bull, for the city, the witness stated that his conclusions were the same as Mr. Dosenbach's. Counsel for defendants then had the witness state that he went with Dosenbach and Morgan to make examination of the property. There was no objection to that evidence except that one question was leading. Plaintiff's counsel then in re-cross-examination asked the witness if the city of St. Louis had anything to do with his going with Jacobsmeyer and Morgan to examine the property. The witness answered, "No more than Dr. Sheahan."
Morgan was asked if he had made an examination of the property and determined the damages. The city objected to the testimony of the witness as it did to the testimony of Dosenbach and Jacobsmeyer and for the same reason.
In cross-examination of that witness Mr. Bull, for the city, brought out that the witness had reached the same conclusions as Mr. Dosenbach and Mr. Jacobsmeyer.
Commissioners who have assessed damage in a condemnation proceeding are competent witnesses as to that matter on a subsequent jury trial. [City of Cape Girardeau v. Hunze, 314 Mo. l.c. 459.] But the fact that the witnesses were commissioners should not be brought to the jury's attention. The only objection offered by the city to the testimony of Dosenbach goes to the competency of his opinion as a witness; that his estimate would indirectly place before the jury the findings of the commissioners. The substantial agreement of the three would not necessarily convey that information to the jury, for witnesses often agree in a matter of that kind. That same objection and no other was urged to the evidence of each one of the commissioners.
The appellant in this court complains of evidence that they acted together, as tending to show their character as commissioners. No objection to that evidence was made by the plaintiff. On the contrary Mr. Bull had Jacobsmeyer say that he had agreed with Mr. Dosenbach as to the damage and showed by Morgan that the three agreed with each other. The city's counsel went even further and asked the witness if the city had anything to do with his going out there with Jacobsmeyer. If the jury from all this inferred that these three witnesses were commissioners the plaintiff has no room to complain.
III. Error is assigned to the alleged admission of testimony of witnesses giving their opinions of the value of land in the vicinity. When Dr. Sheahan was on the stand he Value of Land: was asked if he knew the value of the property Opinion: across the road from him. The question was Knowledge. objected to, objection overruled, and the witness answered: "The value is $3500 per acre." If that is error it is hard to see how the plaintiff was injured by it. Dr. Sheahan had already testified that he valued his own property at $3500 an acre. His estimate of the value of the property across the road would add nothing to what he had already said. Besides, the question and answer fail to show that he expressed merely an opinion of the land across the road. He was asked if he knew the value. He answered, "Yes, I know its value." The court then allowed him to answer and give the value. It was not an opinion, but knowledge. He was not asked how he knew it. If on cross-examination it had been shown that it was not knowledge but a mere opinion he was testifying to, then there might have been some basis for the complaint of error. Knowledge of the value of other property by what it sold for is competent evidence. [St. Louis, K. N.W. Ry. Co. v. Clark, 121 Mo. 185; Met. Street Ry. Co. v. Walsh, 197 Mo. l.c. 403.] And such evidence was introduced without objection.
Mr. Remley, a witness for defendant, was asked what ground in the vicinity of the defendant's land was worth. That question was objected to. The objection was overruled and the question repeated and answered as follows:
"By MR. LASHLEY: Q. Yes, sir, what is the value of the property in the neighborhood on the Price Road, in the neighborhood of Dr. Sheahan's property? A. Judging from the sale of my property that I sold, I sold seven acres without figuring the improvements for about $50,000. That is $7,000 per acre."
While the question might be said to have asked for an opinion, the answer did not give an opinion at all, but simply showed a fact as to what property was sold for in the neighborhood, mentioning one specific instance. Appellant cites Nichols on Eminent Domain on this subject, vol. 2 (2 Ed.), page 1189, where it is said:
"If the jury is to be aided by evidence in regard to property similarly situated, it must be by facts and not by opinions."
This is further elucidated in the same volume on pages 1182-1183, and on page 1196 it is noted that in most jurisdictions evidence as to voluntary sales in the neighborhood is held admissible in determining the value of property affected. That is the rule in Missouri.
Appellant assigns error to the admission of testimony of one Baumhoff, who told of purchases and sales of property in the neighborhood in 1899, 1909 and 1920. The objection urged was that it was too remote as to time. The evidence of Dr. Baumhoff as to previous sales were for prices much less than the admitted value of Dr. Sheahan's property and no evidence was offered to show enhancement in value of the property from the date of those sales until after Dr. Sheahan had bought his property five years prior to the condemnation proceeding. The plaintiff could hardly be damaged by this evidence.
IV. An error, plaintiff claims, occurred when the defendants offered a part of the original petition, an abandoned Abandoned pleading, filed in the case, and it was admitted over Petition: the objection of the defendant. The case was tried Evidence. upon an amended petition.
The part contained in the original petition alleges that the underground conduits and waterways, "are to be placed so that the top of the same shall be a minimum of approximately three feet under the surface of the ground," which does not appear in the amended petition upon which the case was tried. It was competent as an admission of the city regarding the character of excavation and the depth to which the conduits were to be placed as affecting the damage to the defendant's property. It showed the purpose and effect of the condemnation proceeding as the city entertained it at the time. The city could have neutralized that admission by showing, if true, that its present purpose and the proceeding would not have such effect. [Andrus v. Accident Association, 283 Mo. l.c. 455, and cases cited.] But no explanation of the kind was offered.
The judgment is affirmed. All concur.