James Glenn and Arthur M. O'Keefe for respondents. (1) The trial court did not err in refusing to submit to the jury appellant's Instruction B. State ex rel. Chariton River Drain. Dist. v. Montgomery, 275 S.W.2d 283; State ex rel. State Highway Comm. v. Farmer's Estate, 68 S.W.2d 721. (2) The trial court did not err in giving respondents' Instruction D-4 even though it may contain an abstract proposition of law.
We have appellate jurisdiction because the record affirmatively shows that the amount in dispute is more than $15,000 in excess of the $10,500 or $11,000 to which the commission's evidence indicates that the landowner is entitled. Constitution, Art. V, § 3, V.A.M.S., State ex rel. Chariton River Drainage District v. Montgomery, Mo.Sup., 275 S.W.2d 283. Prior to these highway condemnation proceedings and in the year 1953 the City of St. Louis, desiring to acquire land to be used as a part of Lambert-St. Louis Municipal Airport, brought proceedings to condemn 45 acres of Olive M. Gutweiler's 56-acre tract, — the north 45 acres abutting on and lying nearest Natural Bridge Road. This 45-acre tract, however, had not been taken and appropriated by the city prior to the time of the taking of the 11-acre tract.
An appellate court will not ordinarily disturb a judgment for damages based on conflicting evidence in a condemnation proceeding where the amount awarded is supported by substantial evidence and is within the limits of the proof. State ex rel. Chariton River Drainage District v. Montgomery, Mo., 275 S.W.2d 283, 287 [5]; City of St. Louis v. Pandjiris Weldment Co., Mo., 270 S.W.2d 17, 20 [5]; Union Electric Company of Missouri v. Miller, Mo.App., 354 S.W.2d 341, 344 [6]. The defendant filed a motion to dismiss the plaintiff's appeal for failure to comply with S.Ct. Rule 83.05(a), (2), and (c), V.A.M.R., in that "the appellant's statement of facts is argumentative, incomplete and unfair."
The record affirmatively shows that the judgment of the trial court is more than $7,500 in excess of an amount to which the city contended the landowner is entitled. Constitution, Art. V, § 3, V.A.M.S. State ex rel. Chariton River Drainage District v. Montgomery, Mo.Sup., 275 S.W.2d 283. Appellant contends that the court erred in giving Instructions 1 and 2; in refusing Instruction A; in its allowance of interest; in the admission of evidence; in its actions with respect to certain statements and arguments of counsel before the jury, and that the verdict is excessive.
It is not necessary to detail the evidence or again enumerate and contrast the various estimates of value, the evidence of the parties was in direct conflict and in these circumstances this court may not interfere with the jury's primary function of awarding just compensation. Empire District Electric Co. v. Johnston, supra; State ex rel. Chariton River Dr. Dist. v. Montgomery, Mo., 275 S.W.2d 283, 287; School District of Clayton v. Kelsey, 355 Mo. 478, 486, 196 S.W.2d 860, 864. The judgment is affirmed.
This court has appellate jurisdiction of the cause. Const. Art. V, § 3, V.A.M.S.; State ex rel. Chariton River Drainage Dist. v. Montgomery, Mo.Sup., 275 S.W.2d 283. This proceeding was instituted by plaintiff to acquire property in the construction of a four-lane, limited-access highway, now designated as "State Highway Route U.S. 71, Jackson County," from Route 150 northwardly to Hickman Mills.
(1) The trial court properly ruled on the admission and exclusion of evidence. Prairie Pipe Line Co. v. Shipp, 305 Mo. 663, 267 S.W. 647; Missouri Pub. Serv. Co. v. Hunt, 274 S.W.2d 27; State ex rel. Chariton River Drainage Dist. v. Montgomery, 275 S.W.2d 283; Southern Missouri A.R. Co. v. Woodard, 193 Mo. 656, 92 S.W. 470; State ex rel. State Highway Comm. v. Goodson, 281 S.W.2d 858; Krone v. Snapout Forms Co., 360 Mo. 821, 230 S.W.2d 865. (2) The trial court was correct in admitting evidence on value of limitation of access. Gorman v. Chicago, B. Q.R. Co., 255 Mo. 483, 164 S.W. 509; State ex rel. State Highway Comm. v. James, 356 Mo. 1161, 205 S.W.2d 534; Rude v. St. Louis, 93 Mo. 408, 6 S.W. 257; Wilson v. Kansas City, 162 S.W.2d 802; Rourke v. Holmes St. Ry. Co., 221 Mo. 46, 119 S.W. 1094; Art. IV, Sec. 29, Missouri Constitution of 1945.
Therefore, this court has appellate jurisdiction. Mo.Const. 1945, Art. V, § 3, V.A.M.S.; State ex rel. Chariton River Drainage Dist. v. Montgomery, Mo., 275 S.W.2d 283, 284 [1]. The instant condemnation petition, filed September 29, 1950, named one Dierl as the defendant-owner of the property involved.
Const. Art. V, § 3, V.A.M.S. See and compare State ex rel. State Highway Commission v. Schade, Mo. Sup., 265 S.W.2d 383; and contrast State ex rel. Chariton River Drainage Dist. v. Montgomery, Mo.Sup., 275 S.W.2d 283. No other ground for this court's appellate jurisdiction appears from the record.
07 S.W.2d 85 (where the opinion evidence of condemnee showed damages of $8,300 to $12,000, that of condemnor showed damages of $180 to $500, and the judgment for $4,000 was affirmed), and Union Electric Company v. Simpson, Mo.App., 371 S.W.2d 673 (where the opinion evidence of condemnees showed damages of $5,000 to $7,500, that of condemnor was not recorded in the opinion, and the judgment for $2,000 was affirmed), which said cases are characterized in defendants' brief as "contrary to [their] contention" and "possibly persuasive" but nevertheless "not [to] be followed" because they are (so counsel assert) "in error" and, being pronouncements of a sister court of appeals, are "not binding" on us. State ex rel. State Highway Com'n. v. Eilers, Mo., 406 S.W.2d 567; State ex rel. State Highway Com'n. v. Hamel, Mo., 404 S.W.2d 736; State ex rel. State Highway Com'n. v. Koberna, Mo., 396 S.W.2d 654; Public Water Supply Dist. No. 2 of Jackson County v. Alex Bascom Co., Mo., 370 S.W.2d 281; State ex rel. Chariton River Drainage Dist. v. Montgomery, Mo., 275 S.W.2d 283; State ex rel. State Highway Com'n. v. Hart, Mo. App., 417 S.W.2d 193; Missouri Public Service Co. v. Hunt, Mo.App., 274 S.W.2d 27; Empire Dist. Elec. Co. v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78. Instant defendants' position is patently irreconcilable with other judicial holdings not cited in the briefs.