Opinion
No. 6839.
January 9, 1950.
APPEAL FROM THE CIRCUIT COURT, JASPER COUNTY, WOODSON OLDHAM, J.
Lue C. Lozier, Jefferson City, Ralph M. Eubanks, Jefferson City, Ray Bond, Joplin, for appellant.
Roy Coyne, Joplin, Leo H. Johnson, Neosho, for respondents.
This is a condemnation proceeding. The jury awarded the respondents $5,000 as damages from which the state has appealed.
The situs of the controversy is on Highway 166, a short distance west of Sarcoxie and about one-fourth mile east of the junction of Highway 166 and Highway 38, leading to Monett. Respondents owned a tract of ground on the north side of the highway, 132 feet east and west and 660 feet north and south. On this tract of ground was a practically new building 36 feet wide and 76 feet long, the 76 feet facing the highway, thirty feet from the north right of way. The state seeks to condemn a strip across the south end of this tract of ground which would place the right of way line 32 inches from the southeast corner of the building and 44 inches from the southwest corner. The south end of the building has a great number of windows and one extra large and one small door and in the north end of the building is another extra large and also a small door, so that a truck could drive in at the south side and make its exit on the north. This building was erected for the purpose of displaying and selling farm machinery, new and old, merchandise, and also automobiles and tires. Its owners also planned to construct a filling station with pumps and tanks on the 30 feet of land between the south side of the building and the north side of the right of way of U.S. Highway 166.
As is usual in cases of this character, the testimony as to damages to the remaining part of the land not appropriated was conflicting. Some witnesses placed the damage as high as $9,000 or $10,000, unless the building could be moved back, and the cost of such moving was estimated to be from $8,250 to $8,580. The building was of permanent construction, concrete and stone, with walls a foot thick, steel reinforced and a thick concrete floor. On the east side of the building was a strip of land 15 feet wide, used as a driveway from the north end to the south end and on the west side of the building from north to south was a strip of land approximately 40 feet wide. There was evidence on the part of the State that the widening of the highway right of way and improvements incident thereto would increase the value of the remaining property. One witness testified that its prior value was $8,000 to $9,000 and that after the appropriation of the land and the moving of the north right of way line to within approximately three feet of the building, the remaining land would be worth approximately $8,500 to $9,000.
Another witness testified that the appropriation of the land by the State would affect the value of the remaining property very little, if any. By stipulation, the jury was permitted to inspect the property.
There are two points raised on the appeal. The appellant objects to the giving of Instruction No. 1. That instruction was:
"The Court instructs the jury that the plaintiff, the State of Missouri, has by law the right to locate its highway over the defendants' property, and to take the defendants property without their consent and against their will.
"The jury are further instructed that under the constitution of the State of Missouri private property cannot be taken for public use without just compensation being paid to the owner or owners thereof; and in this cause what constitutes just compensation to which the defendants are entitled is a question to be decided by your verdict.
"In passing upon this question if the jury find from the evidence that defendants' property in question is damaged, then the jury should allow the defendants:
"1. For the fair, reasonable, market value of the strip of land actually taken.
"2. And in addition thereto, you will award such damages, if any, to the remainder of defendants' land and the improvements thereof situate as you may find are caused by the taking of defendants' said strip of land described in evidence and appropriated by plaintiff in this suit, less any special benefits, if any.
"And you will allow the defendants one lump sum which will in your opinion reasonably compensate them for both of the elements of damages above set out." (Italics ours.)
The objection to this instruction is, as contended by appellant, that it assumes that there is a net damage suffered by respondents. It is argued that the court in the last paragraph of the instruction assumed that the damages caused to the remainder by the appropriation of part of the land was not absorbed by special benefits resulting from such appropriation by the State.
The law is well settled that in condemnation proceedings of this character, it is error for the court to give an instruction declaring or assuming that there is a net damage above the value of the land taken plus the damage to the remainder, after the special benefits, if any, accruing to the remainder have been taken into account, where the evidence on that question is conflicting. State ex rel. State Highway Commission v. Riggs, 226 Mo.App. 1053, 47 S.W.2d 178; State ex. rel. State Highway Commission v. Thayer et al., Mo.App., 62 S.W.2d 938; State ex rel. State Highway Commission v. Haid, 332 Mo. 606, 59 S.W.2d 1057. State ex rel. State Highway Commission v. Pittsburg Mortgage Inv. Co., Mo.App., 86 S.W.2d 944.
The question here is whether this instruction violates that rule of law. It is true that in this case a greater number of witnesses testified that the respondents' damage to the remaining land was greater than the special benefits, but there is testimony in the record by a minority of witnesses that the special benefits exceeded the damage to the remaining property, and though this testimony comes from the mouths of only one or two, still it is substantial evidence that the courts cannot disregard. State ex rel. State Highway Commission v. Baumhoff, 230 Mo.App. 1030, 93 S.W.2d 104.
Furthermore, the improvement of a highway is presumptively beneficial to adjacent land. State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338; City of St. Louis v. Hamley Realty Co., 329 Mo. 1172, 48 S.W.2d 938.
Some evidence shows that the remainder of the land was decreased in value because of the taking of the 25 feet. The new right of way extended to within less than three feet of part of the front side of respondents' building, but there is also evidence in the record that the moving of the right of way closer to the building benefited the defendants more than it damaged them, which made it a question for the jury as to whether there was a net damage. The instruction in two numbered paragraphs (1) referred to the land actually taken and (2) to the remaining land and the improvements thereon, "less any special benefits, if any."
Appellant, in its reply brief, seems to concede this instruction would have been unobjectionable if it had stopped there, but it did not do so. It continued: "And you will allow the defendants one lump sum which will in your opinion reasonably compensate them for both of the elements of damages above set out."
It virtually tells the jury, without any qualifying words requiring them to so find, that the damage to the remainder exceeds the special benefits, if any, and that there is a net damage when all the evidence is considered.
This same question was before this court in State ex rel. State Highway Commission v. Thayer et al., supra. There an instruction was given which used these words [Mo.App., 62 S.W.2d 938]: "* * that in determining the damages to which defendants, James Thayer and Clara Thayer, his wife, are entitled for the taking and appropriation by plaintiff of four and sixty-six one hundredths acres of their farm, * * *," and it was held that this language not only assumed that the defendants were entitled to damages but, without qualifying words as "if any" was also likely to convey the impression to the jury that the defendants were entitled to net damages in considering the value of the entire tract before and after the taking.
We believe the instruction in the present case is more susceptible to criticism than the one condemned in State ex rel State Highway Commission v. Thayer, supra. For these reasons, we must hold that the giving of this instruction was error on the part of respondents. Our conclusions are also supported by the cases first above cited.
We think the instruction has another defect. In condemnation proceedings of this character, the measure of damages is the difference between the value of the entire tract before the appropriation of part of it and the value of the remainder after the appropriation. State ex rel. Kansas City Power Light Co. v. Gauld, Mo.App., 222 S.W.2d 940; Siemers v. St. Louis Electric Terminal R. Co., 348 Mo. 682, 155 S.W.2d 130; Mississippi County v. Byrd, 319 Mo. 697, 4 S.W.2d 810.
This amount is arrived at by and after giving the appropriating party credit for, or to set-off, such special benefits, if any, as the remainder may receive as a result of the appropriation. To illustrate, suppose the value of the entire tract before appropriation was $2,000. The value of the land actually taken was $1,500. The special benefits accruing to the remainder made it worth $750. Under the above rule, the net damage would be $1,250. This is arrived at by considering the special benefits in relation to the part taken and the part remaining. Special benefits may be set off against the damages to the remainder as well as the value of the part taken. State ex rel. State Highway Commission v. Day, 226 Mo.App. 884, 47 S.W.2d 147; State ex rel. State Highway Commission v. Scheer, Mo.App., 84 S.W.2d 641; State ex rel. State Highway Commission v. Baumhoff et al., supra; State ex rel. State Highway Commission v. Huddleston, Mo.App., 52 S.W.2d 33.
But under the instruction as given here, the special benefits were to be credited to the remainder only (if it could be) and the landowner could get the entire value of the land taken and realize a profit of $250 on the part remaining.
The court should have instructed the jury that the special benefits, if any should be considered and set-off against both, instead of the part remaining, only.
We have carefully read and considered the cases cited by respondents laying down the rule that all the instructions must be read together, and if when so read, they are harmonious and not confusing, there is no error. But that is not the case here. In appellant's instructions Nos. 9 and 10, the jury was informed that special benefits could be deducted from the total value of the land taken and the damage to the property remaining. Instruction No. 1 confined this deduction to the property remaining. There is an irreconcilable conflict between Instruction No. 1 and Instructions 9 and 10.
Appellant objects to Instruction No. 4, which we quote: "The Court instructs the jury that if you find and believe from the greater weight of the evidence that the property of defendants in question was acquired by them for the specific purposes shown in evidence, and if you further find and believe that the remainder of said property, including the building 36' x 76', as described in evidence, cannot be reasonably used by defendants for such purposes after the appropriation of the strip of land in question by the plaintiff, and if you so find further that the relocation of said building on the remainder of said property will permit its use by defendants for the purposes for which acquired, then you may take into consideration in estimating the damages due defendants, if any, on the remainder of the tract the costs of such relocation."
There was evidence that if the building could be and was moved back from the right of way as extended, it would be practically as valuable for the purpose for which it was built, as it would have been before the appropriation. There was also evidence as to what it would cost to move the building back to a place equally as advantageous as its former location. While the jury would not be justified in assessing damages for relocating the building, we think that is one of the elements they might consider in determining what, if any, net damage there was to the remainder of the property by the appropriation of the strip of land on the south side. State ex rel. State Highway Commission v. Haid, supra; Spalding v. Robertson, 357 Mo. 37, 206 S.W.2d 517; Liles v. Associated Transports, Mo.Sup., 220 S.W.2d 36; Siemers v. St. Louis Electric Terminal Ry. Co. supra; State ex rel. Highway Commission v. Williams, 227 Mo.App. 196, 51 S.W.2d 538. The giving of this instruction was not error. Error was committed in giving Instruction No. 1 and for that reason, the judgment of the trial court should be reversed, and the cause remanded. It is so ordered.
BLAIR and McDOWELL, JJ., concur.