Summary
In City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, nine years elapsed and The Great Depression intervened between the purchase and the taking, and similar evidence was there held to be admissible.
Summary of this case from Land Clearance Authority v. DoerenhoeferOpinion
Opinion filed February 2, 1943. Appellant's motion for rehearing overruled February 19, 1943. Petition for Writ of Certiorari denied by Supreme Court April 5, 1943.
1. — Eminent Domain — Compensation — Consequential Damages. In a condemnation proceeding where only a part of the whole property of the owner is taken, the owner is not in all events restricted to compensation for the part actually taken but is entitled also to recover for whatever consequential damages may proximately result to the remainder of the land by reason of the taking of a part.
2. — Eminent Domain — Measure of Damages. In a proceeding to condemn a part of a tract of land, the entire tract is to be considered as a whole, and the measure of damages is the difference in the reasonable market value of the entire tract before and after the appropriation of the part actually taken.
3. — Eminent Domain — Damages — Injury to Remainder of Land by Taking of a Part. In a condemnation proceedings, before damages may be recovered upon the theory of injury to the remainder of land by reason of the taking of a part, such damages must be direct and certain at the time of the appropriation, since if they are but remote or speculative they are too uncertain to be taken into account in estimating the depreciation in the value of the land.
4. — Eminent Domain — Damages — Consequential Damages to Remainder of Land by Taking of a Part. In a condemnation proceeding, consequential damages to the remainder of the land by reason of the taking of a part are not limited to physical injury to the remainder of the property.
5. — Eminent Domain — Damages — Evidence. In a condemnation proceeding, in estimating the amount of consequential damages sustained, that is, the amount of the depreciation in the value of the owner's land because of the taking of a part, the owner is entitled to have the jury informed as to all those facts relating to the condition of the property which would naturally impress a person of ordinary prudence in negotiating for the purchase of the same; the use to which the property has been devoted and its capability or special adaptation for such use are primary elements to be taken into account; and anything which is directly injurious to such capability or special adaptation for a particular use, and thereby affects the market value of the property, may be shown as a legitimate factor in bringing about the total damage sustained.
6. — Eminent Domain — Damages. In a condemnation proceeding damages may be recovered only for injury sustained as of the date of the appropriation.
7. — Eminent Domain — Damages. In a condemnation proceeding, if the proof shows that the immediate result of the appropriation of a part of the defendant's property is to hinder expansion so as to depreciate the market value of the property as of the date of the appropriation, such hindrance to expansion relates to a then existing fact and may be shown as one of the elements to be considered in determining the amount of compensation to be awarded.
8. — Eminent Domain — Damages. In a proceeding by a city to condemn a triangular portion of a lot of ground that had been reserved by the owner as the site of a contemplated addition to its factory building, the evidence sufficed to show that the hindrance to expansion resulting from the appropriation of the part taken was a matter directly and proximately affecting the value of the whole property as of the date of the appropriation, and such fact was therefore not only a proper element of damage to be shown by the property owner, but was competent to be shown in terms of limited production, which was the most accurate manner in which the extent of such damage was capable of ascertainment.
9. — Eminent Domain — Damages — Loss of Profits. In a condemnation proceeding loss of profits or injury to business is too speculative and remote to be considered as a basis for ascertaining the damages sustained.
10. — Eminent Domain — Damages — Evidence. In a condemnation proceeding by a city for street improvement, the character of the use for which the improvement was designed was a proper factor to be considered upon the question of the damage done to the portion of the owner's property not taken by the appropriation.
11. — Eminent Domain — Damages — Evidence. In a condemnation proceeding, where the purpose of the improvement was to effect a separation of the grades of a street and a railroad track, a photograph taken two days before the trial on the top of the defendant's factory, disclosing conditions existing immediately adjacent to the defendant's property with respect to the construction of the improvement, was admissible for the purpose of informing the jury as to the conditions surrounding the defendant's property.
12. — Eminent Domain — Damages — Evidence. Generally speaking, all evidence of value is admissible in a condemnation suit which an ordinarily prudent person would take into account in reaching his conclusion respecting the fair market value of the property under consideration.
13. — Eminent Domain — Damages — Evidence. In a condemnation proceeding, the price paid for property is admissible as some evidence of its value at the time of its appropriation, except where the purchase was so remote in point of time as to afford no fair criterion of value at the date of the valuation, or where it appears that special considerations may have induced the original purchase at a price other than its true value.
14. — Eminent Domain — Damages — Evidence. In a proceeding for the condemnation of a part of the defendant's party, evidence of the original purchase price of the property, of the construction cost of the building erected thereon, and of benefit assessments previously paid on the theory that the value of the land had been increased by the construction of prior improvements, was admissible for whatever it was worth in estimating the value of the property at the time of the appropriation.
15. — Eminent Domain — Damages — Evidence. In a proceeding for the condemnation of a part of the defendant's property, the fact that witnesses, in appraising the total damages, were inclined to approach the question from the standpoint of the value of the land actually taken plus the resulting damage to the part not taken, which is merely another way of determining the value of the whole before and after the appropriation, did not suffice to sustain the charge that there was a duplication of the damages by the addition of specific items otherwise included in the general estimate of the loss.
16. — Eminent Domain — Damages — Evidence. In a condemnation proceeding where the chief element of damage to the part of the property of the defendant corporation not taken was the resulting hindrance to expansion because of the impossibility of carrying out the defendant's building plans with the tract condemned taken away, it was competent for defendant to show not only the cost of any adjacent land upon which a future additional building might be erected, but also the infeasibility of operating its plant under the conditions which the erection of a new building at that location would impose.
17. — Eminent Domain — Damages — Evidence. In a condemnation proceeding it was the duty of the defendant corporation, when injured by the appropriation of a part of its land, to minimize the damage to the remainder if it could, and the circumstances that it could not expeditiously do so was therefore a proper matter to be shown in evidence upon the question of the total damage for which it was entitled to receive just compensation.
18. — Eminent Domain — Damages. In a condemnation proceeding the test of the damages suffered is not the sum for which the owner might have been willing to sell the land appropriated, but, instead, its actual value on the market.
19. — Eminent Domain — Damages — Evidence. Where, in a proceeding to condemn a part of the property of a corporation, its president, as a witness in its behalf, was asked what, in his judgment, was the loss defendant would suffer by reason of the taking of said portion of its property, to which plaintiff's counsel objected on the ground that the witness was not qualified to testify as an expert on real estate values, and such objection was overruled, but there was no objection to or motion to strike out that portion of the president's answer referring to his unwillingness to sell the condemned land at a price mentioned, and the question was withdrawn when plaintiff's counsel sought to interpose a further objection thereto, no reversible error was committed.
20. — Eminent Domain — Damages — Opinion Evidence. Where in a condemnation proceeding the defendant corporation contended that the condemnation of a portion of its unimproved land adjacent to its factory hindered expansion because of the impossibility of carrying out building plans, it was not error to permit the architect who had drawn the plans for the building that had been erected on the defendant's property to testify as to the damage sustained.
21. — Eminent Domain — Damages — Opinion Evidence. The assessment of damages in a condemnation case is necessarily and inevitably the result of opinion; the considerations which govern the admissibility of opinion evidence are, for practicable purposes, identical with those that actuate ordinarily prudent persons in looking for advice in connection with the conduct of their own personal business affairs; consequently, if a witness, whatever his occupation or profession, is one whose opinion would be sought after and given weight by ordinarily prudent persons seeking information upon the question of the value of or the damage done to the property, he is competent to give his opinion in evidence, so far as the matter of his qualification is concerned.
22. — Eminent Domain — Damages — Opinion Evidence. In a condemnation proceeding, if a witness has information which entitles him to form an intelligent opinion with respect to the total damages sustained, then he is a competent person to express that opinion to the jury so as to aid it in the performance of its special function of determining the just compensation to be awarded in the case.
23. — Eminent Domain — Damages — Evidence. In a proceeding to condemn a part of the defendant's property it was not error to permit a witness to consider the availability or adaptability of the condemned property for a particular use in reaching his conclusion as to the damage done by the appropriation.
24. — Eminent Domain — Trial — Instructions. In a proceeding to condemn a part of the defendant's property, an instruction requested by the plaintiff whereby it was sought to have the jury instructed that any "future" injury to the defendant's business resulting from the restriction which the appropriation had imposed on the defendant's capacity to expand was not an element of damages was properly refused for want of relevancy to the actual issue in the case, where the defendant had not sought damages to his "future" business, but only for injury resulting from hindrance to expansion, which was then a present, existing fact, and which brought about a depreciation in the value of the property as of the time of the appropriation; and if the instruction should be regarded as merely undertaking to withdraw the question of hindrance to expansion, it was none the less properly refused.
25. — Eminent Domain — Trial — Instructions. In a proceeding to condemn a portion of the defendant's property, it was not error to refuse an instruction requested by the plaintiff regarding the determination of the market value of the portion of the property taken, where the subject-matter of the refused instruction was fully covered by an instruction given by the court of its own motion.
26. — Eminent Domain — Trial — Instructions. In a proceeding to condemn a portion of the defendant's property, an instruction requested by the plaintiff regarding the determination of the market value of the portion of the property taken was properly refused, regardless of its correct pronouncements of the law, for the reason that typed underneath it, and accompanying it, was a highly argumentative statement of plaintiff's counsel as to why the instruction should be given.
27. — Eminent Domain — Trial — Instructions. In a proceeding to condemn a portion of the defendant's property, an instruction on the measure of damages which authorized the jury to take into consideration, among other things, "all the conditions as shown in evidence," was not objectionable on the ground that it thereby gave the jury a roving commission to base their verdict upon inadmissible testimony, where plaintiff's contentions regarding the admissibility of evidence were not sustainable.
28. — Eminent Domain — Damages. In a proceeding to condemn a portion of the defendant's property, the evidence sufficed to support an award in the sum of $7000.00.
29. — Appeal and Error — Vexatious Appeal. In a condemnation proceeding, held, that the record afforded no basis for holding that the appeal was taken merely for vexation and delay, but presented fairly debatable questions of law on which the appellant was entitled to seek the decision of the Court of Appeals, and that the respondent's motion for an award of damages as for vexatious appeal should therefore be denied.
Appeal from the Circuit Court of the City of St. Louis. — Hon. William S. Connor, Judge.
AFFIRMED.
Joseph F. Holland, James B. Steiner and Oliver T. Johnson for appellant.
(1) Any testimony, whether it be plats or plans, with the words, "future building" inscribed thereon, statements of witnesses or construction which might be construed to show intention, or any other evidence tending to show intention or plans on the part of the respondent to construct an additional wing or future building, is not admissible in evidence, and therefore the trial court erred in receiving all such evidence. All such evidence is speculative, hypothetical and remote from the issues involved. Only existing property can be taken or damaged under the Constitution of the State. St. Louis v. St. Louis, I.M. S. Ry. Co., 206 Mo. 694, 182 S.W. 750; Lewis on Eminent Domain, Section 727; New York Central R.R. Co. v. Maloney, 234 N.Y. 208, 137 N.E. 305, 308; Constitution of Missouri 1875, Art. II, sec. 21. (2) Any testimony as to production of manufactured products or loss of production, based upon present or future buildings, profits and loss, or business in any form, contemplated or assumed and intended to be used as basis for damages to or for the property of the respondent herein, is inadmissible in evidence. None of such testimony forms or constitutes proper or legal elements of damages in eminent domain. St. Louis v. St. Louis, I.M. So. Ry. Co., 266 Mo. 694, 701, 704, 182 S.W. 750; Lewis on Eminent Domain, sec. 727; New York Central R.R. Co. v. Maloney, 234 N.Y. 208, 137 N.E. 305, 308; Railroad v. Knapp-Stout Co., 160 Mo. 396; Pause v. Atlanta, 98 Ga. 92, 105; Accomac Realty Co. v. St. Louis, 152 S.W.2d 100, 102; Sauer v. Mayor of City of New York, 44 A.D. 305, 60 N.Y.S. 648, 650. (3) (a) After the witnesses valued the property before and after the part is taken from said property, they cannot then add to said damages special taxes theretofore assessed. The date of valuation, namely, November 22, 1937, embraced all increment theretofore received. City Charter (1914), Article XXI, Sec. 5. (b) It is axiomatic that the damages once ascertained in the opinion of the witness cannot be increased by adding $2,000.00 more as damages for the property taken and damaged. (4) (a) The trial court erroneously admitted in evidence the cost of respondent's land and building, which building was constructed about 1929 and 1930, and the land was acquired by the respondent in 1928 instead of the date of valuation, namely, November 22, 1937, as fixed by the City Charter. City Charter, Article XXI, sec. 5. (b) Statutes fixing dates of violation have been held valid by appellate courts. California Southern R.R. v. Kimball, 61 Cal. 90; Los Angeles v. Pomroy, 124 Cal. 597, 57 P. 585, 602; Oregon Short Line Utah Northern Ry. Co. v. Mitchell, 7 Utah, 205, 27 P. 693. (c) The measure of damages in eminent domain is market value, and not the cost price of the property in question. Lewis on Eminent Domain (3rd ed.), sec. 706. To the market value cannot be added the special assessments which were assessed and collected previous to the date of valuation, namely, November 22, 1937. (d) It was error for the trial court to admit in evidence a valuation which was value to the owner. Lewis on Eminent Domain, sec. 706. (e) When part of a parcel of property is taken, as in this case, the measure of damages is the difference in market value before and after the appropriation. City Water Co. v. Hunter, 319 Mo. 1240, 6 S.W.2d 565, 567, and cases therein cited; Maxwell v. Iowa State Highway Commission, 223 Iowa 159, 271 N.W. 883; Alabama Power Company v. Berry, 222 Ala. 20, 130 So. 541, 544; Malvern Ouachita River R.R. v. Smith, 181 Ark. 626, 26 S.W.2d 1107. (f) It is axiomatic that the respondent cannot appraise the damages for the present property taken and then add to those damages additional damages, such as cost of extra heavy columns, larger footings and brackets on the same present property. This method of appraisement is, in part, adding damages twice. (5) (a) The trial court erroneously permitted the witness, an architect, to value the property in question and give the damages thereto without being qualified. In other words, said witness was not competent. (b) Even though said witness was not competent to testify to the values and damages, he was erroneously permitted to testify that the property in question was adapted to a shoe manufacturing plant. Boom Company v. Patterson, 98 U.S. 403, 408, 25 Law Ed. 206; Yonts v. Public Service Co., 179 Ark. 695, 17 S.W.2d 886; Joint Highway District v. Ocean Shore Railroad Company, 128 Cal.App. 743, 18 P.2d 413. (6) The cause of action in this cause was and is for the taking of private property, and not for the damaging of private property by reason of change of grade, but the trial court erroneously admitted evidence on change of grade. 1 Houts' Missouri Pleading Practice, sec. 2; Henry County v. Citizens' Bank of Windsor, 208 Mo. 209, 225-6, 106 S.W. 622. There cannot be a change of grade suit unless there is pleaded in the petition the order of the Board of Public Service fixing the new or change of grade. City Charter (1914), Article XIII, sec. 5, subdivision (e). (7) (a) The trial court erred in refusing to give Instruction A offered by plaintiff for the reason that said instruction asked the jury not to find damages to any future injury to business; that all evidence, if any, to such future injury to business should be disregarded. St. Louis v. St. Louis, I.M. So. Ry. Co., 266 Mo. 694, 182 S.W. 750; Lewis on Eminent Domain, sec. 727; Accomac Realty Company v. St. Louis, 152 S.W.2d 100, 102 (1941); Sauer v. Mayor of New York, 44 A.D. 305, 60 N.Y.S. 648, 650. (b) The trial court erred in refusing to give plaintiff's Instruction B. which told the jury not to consider evidence, if any, on the value of the strip to be taken (994 square feet) to the owner. St. Louis, K. W. Ry. Co. v. Knapp-Stout Co., 160 Mo. 396, 408, 409; St. Louis v. Smith, 235 Mo. 471, 479, 30 S.W.2d 729, 732; Lewis on Eminent Domain, sec. 706, p. 1228 et seq. (c) The trial court erred in giving defendant's instruction No. 2, in that the last two lines thereof, namely, "together with all the conditions as shown in evidence in this case," is a roving commission to the jury to find a verdict based upon "all the conditions as shown in the evidence." This part of said instruction was a license to the jury to find their verdict upon testimony which was not admissible in evidence. Said instruction, in effect, unduly emphasized "conditions," to which the plaintiff strenuously objected during the trial. Owens v. McCleary, 313 Mo. 213, 281 S.W. 682, 685. (d) The trial court erred in giving defendant's instruction No. 6, in that it permitted recovery of damages on the theory that the defendant, Paramount Shoe Manufacturing Company, may, or intends, or planned to construct an additional wing or intended building to their existing building. This instruction is erroneous for the reasons given under Point I above. St. Louis v. St. Louis, I.M. So. Ry. Co., 266 Mo. 694, 182 S.W. 750; Lewis on Eminent Domain, sec 727; Railroad v. Knapp-Stout Co., 160 Mo. 396, 412; New York Central Railroad Co. v. Maloney, 234 N.Y. 208, 137 N.E. 305, 308; Accomac Realty Co. v. St. Louis, 152 S.W.2d 100 (1941). (8) The court admitted in evidence testimony as to the cost of land adjacent to the parcel in question, which area was 7,400 square feet, all with a total cost of $34,000.00. This evidence was not admissible, in that it was speculative and remote from the issues in this cause. Said area was not taken and was not in this cause, and all of said evidence was highly prejudicial. Lewis on Eminent Domain, sec. 727; St. Louis v. St. Louis, I.M. So. Ry. Co., 266 Mo. 694, 182 S.W. 750. (9) There is no substantial legal evidence in this cause to support a verdict of $7,000.00. All of the respondent's evidence as to damages from $27,500.00 up, is improper, erroneous and illegal, according to all of appellant's authorities, hereinabove given.
A.B. Frey and Frey Korngold for respondent.
I. Appellant's Points (1) to (4), inclusive, and Point (5) (b) and certain objections raised in its argument, but not included in its Points, must all be disregarded because the same were not properly preserved for review under the following rules. (1) If an appellant fails to object to a question (or evidence) before the same is answered, or admitted, error may not be predicated thereon on appeal. Whittington v. Westport Hotel Operating Co., 326 Mo. 117, 33 S.W.2d 963, 966; State ex rel. v. Haid, 325 Mo. 532, 29 S.W.2d 714, 716; Dobson v. Otis Elevator Co., 324 Mo. 1147, 26 S.W.2d 942, pt. 8, 945; Kaimann v. Spivak, 17 S.W.2d 599, pt. 5, 602; State ex rel. State Highway Com. v. Bengal, 124 S.W.2d 687, pt. 7, 689. (2) If the answer of the witness is responsive to the question, and no previous objection has been made to the question, an objection then made and even a motion to strike out the answer comes too late. Boulecault v. Oriel Glass Co. (In Banc), 283 Mo. 237, 247, and cases cited therein. (3) Where no proper objection was made before an answer of a witness is given, a motion to strike out the testimony must be made to preserve the point for appeal even in those cases where the court will waive Rule 1. Harrison v. St. Louis S.F. Ry. Co., 339 Mo. 821, 99 S.W.2d 841; Garvey v. Piel et al., 43 S.W.2d 774, pt. 1; Consolidated School Dist. v. West Mo. Power Co., 329 Mo. 690, 46 S.W.2d 175, pt. 7, 179; Wilkerson v. Mo. Pac. R.R. Co., 69 S.W.2d 299; Findley v. Johnson, 142 S.W. 261; Carter v. Zollinger, 231 Mo. App. 1153, 85 S.W.2d 189, pt. 1, 191. (4) If incompetent testimony is admitted, without objection, admission of subsequent testimony of the same kind, over objection, will not be held erroneous. Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413, pt. 7, 416; Keyes v. C.B. Q.R.R. Co., 326 Mo. 236, 31 S.W.2d 50, 61-62; City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853, 855. (5) Where incompetent testimony is admitted without objection, the subsequent admission of the same kind of testimony by the same or other witnesses is cumulative, and will not be held to be erroneous. Lewis v. St. Louis Independent Packing Co. et al. (Mo.), 3 S.W.2d 244, pt. 12, 250; Bishop v. Musick Plating Works, 3 S.W.2d 256, pt. 7, 260. (6) No error can be predicated on the admission of incompetent evidence if the same is substantiated by the testimony of appellant's witnesses. Whittington v. Westport Hotel Operating Co., 33 S.W.2d 963, pt. 6, 967. (a) The admission of costs of improvements in a condemnation case, where the improvements are of a character to depreciate very little, does not constitute reversible error. State ex rel. State Highway Com. v. Southern Securities Co., 60 S.W.2d 632, (7) Where, after a question is answered, an objection is made, and the question is withdrawn, no error may be predicated thereon, particularly if no motion is made to strike out such evidence. Van Cleve v. Railroad, 124 Mo. App. 224, 101 S.W. 631. (8) Where evidence is offered that is competent for certain purposes, but incompetent for other purposes, a general objection will not avail. The complaining party must ask that its use be limited to the competent purpose, and must offer an instruction to that effect. Failing so to do, the point is not properly preserved for appeal. City of St. Louis v. Worthington (Mo.), 52 S.W.2d 1003, pt. 5, 1009, and numerous authorities cited. (9) Comments of the trial court on rulings on evidence will not be considered on appeal unless proper objections are specifically made thereto, and exceptions saved. State ex rel. State Highway Commission v. Bengal, 124 S.W.2d 687, 690. II. It is fundamental "that private property shall not be taken or damaged for public use without just compensation." Constitution of Missouri, Art. II, sec. 21. The words "just compensation" as used in the Constitution "mean exactly the same as they mean when used in every-day business transactions between man and man." St. Louis, M. S.E.R.R. Co. v. Continental Brick Co. (in banc), 198 Mo. 698, 96 S.W. 1011. Any rule that may be announced must itself be measured by the rule given in the Constitution, and any rule that so limits the damage in such a case as that the result will be in facts less than just compensation for the injury suffered falls short of the Constitutional measure. City of St. Louis v. Brown, 155 Mo. 545, 562-3, 56 S.W. 298; 2 Lewis on Eminent Domain, sec. 686, p. 1126. III. (1) The measure of damages in partial taking condemnation case is the difference in the fair market value of the whole property immediately before and after the appropriation of the part taken. Texas Empire Pipe Line Co. v. Stewart (in banc), 331 Mo. 525, 55 S.W.2d 283, 285; State ex rel. State Highway Commission of Mo. v. Craighead (Mo. App.), 65 S.W.2d 145, 148. (2) To determine such damages the jury should consider the market value of the part taken and the consequential damages to the remainder. Hannibal Bridge Co. v. Schaubacker, 57 Mo. 582, 585; City of St. Louis v. Brown, 155 Mo. 545, 562; City of St. Louis v. St. L.I.M. S. Ry. Co., 272 Mo. 80, 197 S.W. 107; City Water Co. v. Hunter, 319 Mo. 1240, 6 S.W.2d 565; State ex rel. v. Craighead, supra; 2 Lewis on Eminent Domain, sec. 694, p. 1202; Orgel on Valuation in Eminent Domain, sec. 64, p. 217. IV. Where there is a partial taking of unimproved property forming an integral part of a tract improved with a specially constructed factory, evidence is clearly admissible to show all those matters that would influence a prospective buyer. Nichols on Eminent Domain, sec. 237, pp. 723-24. The following elements have been held proper for consideration in Missouri: (1) The uses, both general and special, to which the entire property is being devoted at the time of the condemnation of a part thereof. American Tel. Tel. Co. v. St. Louis, I.M. S. Ry. Co., 202 Mo. 656, 688, 101 S.W. 576; St. Louis, M. S.R.R. Co. v. Continental Brick Co. (in banc), 198 Mo. 698, 96 S.W. 1011; City of St. Louis v. L., I.M. S. Ry. Co., 272 Mo. 80, 197 S.W. 107; 2 Lewis on Eminent Domain, sec. 706. This may be shown in terms of production. St. Louis, M. S.R.R. Co. v. Continental Brick Co., supra; City of St. Louis v. St. L., I.M. S. Ry. Co., supra. (2) The various uses to which the unimproved property is particularly adaptable. St. Louis, M. S.R.R. Co. v. Continental Brick Co., supra; State ex rel. Highway Commission v. Cox, 336 Mo. 271, 77 S.W.2d 116, 119; State ex rel. Highway Commission v. Graham, 74 S.W.2d 493, 495; Webster v. K.C. S. Ry. Co., 116 Mo. 114, 118, 22 S.W. 474; Broom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206; 2 Lewis on Eminent Domain, sec. 694, p. 1202, sec. 707, p. 1233. (3) The irregular shape of the entire tract after the appropriation. State ex rel. v. Haid, 332 Mo. 606, 59 S.W.2d 1057, 1060; Nichols on Eminent Domain, sec. 238, pp. 729-730; Kansas City N. F.S. Ry. Co. v. Dawley, 50 Mo. App. 480, 483. (4) The proximity of the unimproved parcel after the appropriation to the new street or roadway. State ex rel. v. Bengal (Mo. App.), 124 S.W.2d 687, pt. 10, 690; State ex rel. v. Haid, supra; Nichols on Eminent Domain, sec. 237, pp. 723-724. (5) The hindrance to expansion or enlargement caused by the appropriation. This may be shown in terms of reduced opportunities for production, which is a more accurate criterion than mere guesswork. St. Louis, M. S.R.R. Co. v. Continental Brick Co., 198 Mo. 698; City of St. Louis v. St. L., I.M. S. Ry. Co., 272 Mo. 80, 197 S.W. 107. V. Witnesses, to be competent to testify as to market value before and after the appropriation, do not necessarily have to be experts. They may be persons acquainted with the property, and having knowledge derived through the general avenues of information to which business men resort. City of St. Louis v. Buselaki (in banc), 87 S.W.2d 853, 855; St. Louis M. S.R.R. Co. v. Continental Brick Co. (In Banc), 198 Mo. 698, 708; Railroad v. Calkins, 90 Mo. 543; Kansas City Ry. Co. v. Norcross, 137 Mo. 662, pt. 3; Knapheide v. Jackson Co., 215 Mo. 516, 520; Orgel on Valuation in Eminent Domain, sec. 130, pp. 439-445. Improper elements, if any, in an expert's testimony tend merely to discredit the value of his testimony. City of St. Louis v. Buselaki, 87 S.W.2d 853. The trial court has a large discretion in passing on the qualifications of an alleged expert. Arnold v. Alton R.R. Co. (Mo.), 154 S.W.2d 58, 62. VI. (1) Instructions should be based on the evidence. 1 Raymond on Mo. Instructions, sec. 92; Arkla Lumber Mfg. Co. v. Quellmalz Lbr. Co. (Mo.), 252 S.W. 961, pts. 12-14, 968. (2) Instructions should state the issues in plain language so as to be understood by average men. 1 Raymond on "Missouri Instructions to Juries," sec. 68, p. 57. (3) Instructions should not be ambiguous or misleading. Raymond ( supra); 64 C.J., Trial, sec. 599, p. 669. (4) Instructions should not be argumentative. 14 R.C.L., Instructions, sec. 24, p. 757. (5) The refusal of an instruction is not error if the subject matter is covered by another instruction that is given. Funke v. Railroad, 35 S.W.2d 977, 982; Lux v. Milwaukee Mechanics Ins. Co., 30 S.W.2d 1090, pt. 7, 1092. (6) It is proper to instruct the jury to consider "all the conditions as shown by the evidence." Metropolitan Street Ry. Co. v. Walsh, 197 Mo. 393, Instruction 4, 398-9; State ex rel. v. Haid (In Banc), 59 S.W.2d 1057, 1060. (7) It is proper to instruct the jury to consider "hindrance to expansion." St. Louis, M. S.R.R. Co. v. Continental Brick Co., 198 Mo. 698, 710. VII. It is the duty of a property owner to avoid the consequences of damages. Evidence of the valuation of adjoining ground where offered, as herein, to show that it would not be practical to purchase same, is admissible to show damages could not be avoided by purchasing such property because of its high cost. City of St. Louis v. St. Louis, I.M. S. Ry. Co. (Mo.), 272 Mo. 80, 197 S.W. 107; Springfield S.W. Ry. Co. v. Schweitzer, 173 Mo. App. 650, 657, 158 S.W. 1058; Hannibal v. Schaubacker, 57 Mo. 582; City of St. Louis v. Brown, 155 Mo. 545; State ex rel. v. Haid, 59 S.W.2d 1057; 17 C.J., Damages, sec. 97, p. 767. VIII. It is clearly the province of the jury to determine the quantum of damages in condemnation cases. City v. Hunter (Mo.), 6 S.W.2d 565; City of St. Louis v. Smith, 30 S.W.2d 729, 734. The trial judge must determine the fairness of the verdict. Great weight must be accorded his approval thereof. City of St. Louis v. Buslaki, 80 S.W.2d 853; City of St. Louis v. Sheahan, 36 S.W.2d 951-52; City of St. Louis v. Franklin Bank, 100 S.W.2d 924, 927; City of St. Louis v. Franklin Bank, 107 S.W.2d 3, 5. IX. Cases should not be reversed except for errors materially and prejudicially affecting substantial rights of appellant. Sec. 973, Vol. 3, M.R.S.A.; Sec. 1228, Vol. 6, M.R.S.A.; Shuepbach v. Laclede Gas Co., 232 Mo. 603, 611; City of St. Louis v. Senter Commission Co., 102 S.W.2d 103, 110; South Side Bank v. Ozias, 155 S.W.2d 519, 527. (There was no such error in this case.)
This is a proceeding in condemnation which was instituted by the City of St. Louis pursuant to an ordinance providing for the condemnation of private property for the establishment, opening, and widening of Chippewa Street between Gravois Avenue and Meramec Street in said city, all to be done in connection with a proposal for the separation of the grades of Chippewa Street and the tracks of the Missouri Pacific Railroad Company. Among the property owners affected by the condemnation was respondent, Paramount Shoe Manufacturing Company; and this appeal is by the city from the final judgment in the case awarding respondent the sum of $7,000 as its damages sustained by reason of the taking of a portion of its land in the making of the improvement.
It appears that in 1928, respondent, at a cost of $8,776.33, bought a tract of land fronting 125 feet on the south side of Chippewa Street, with a depth southwardly of 195 feet 10 inches. Both Chippewa Street and Gravois Avenue were unimproved at the time; and respondent's idea in locating its plant in that vicinity was to be in an industrial section of the city where a supply of skilled shoe workers might be the more readily available, and where there would be ample room for any future expansion of its buildings and plant facilities. Concluding, however, that the amount of land originally purchased would not be sufficient for all its purposes, respondent, a short time later, purchased an additional adjoining 35 feet for $2,448.29, making the total cost of its land $11,224.62. Subsequently, upon the institution of a condemnation suit to widen Chippewa Street, respondent voluntarily gave the city a strip 20 feet deep from off the entire front of its land, thus reducing the depth of its land to 175 feet 10 inches, which was as it stood on November 22, 1937, the date of the valuation in the case at bar.
It also appears that after the purchase of its land, but before the condemnation now in question, respondent was compelled to pay benefit assessments aggregating $1,874.47 in connection with the widening of both Chippewa Street and Gravois Avenue, which assessments, when added to the purchase price of the land, represent a total expenditure by respondent of $13,099.09.
In the improvement of its premises, respondent left a clearance of 30 feet along the entire east side of its land as a space to be utilized for receiving and shipping out merchandise, and then upon the remainder of the land constructed an inverted L-shaped building, the vertical or front wing of which fronted on Chippewa Street for a width of 50 feet 1¾ inches immediately to the west of the 30 foot space which had been left for clearance. The building extended southwardly for a depth of 171 feet 1 3/8 inches, or almost to the southern extremity of the lot, while the horizontal or rear wing of the building extended to within 9 feet 11½ inches of the western boundary of the lot, thereby taking up, for all practical purposes, the entire width of the rear 50 feet of the land.
The cost of the building was $108,000, and as a consequence of the manner of its construction, there was left, in what may be referred to as the northwest portion of the lot, a vacant section fronting 79 feet 10¼ inches on Chippewa Street, and extending southwardly for 121 feet 1 5/8 inches to the front of the rear wing of the building. This space was purposely reserved by respondent as the site of a future building or addition similar in construction to the building erected on the east and south sides of the lot, and designed, when completed, to join on to the existing building and form a U-shaped building covering the major portion of the premises.
The original plans and specifications specifically provided for the construction of such future addition; and when the L-shaped building was erected according to such plans and specifications, all of the supports on both the west side of the front wing and the north side of the rear wing were reinforced at considerable extra expense to respondent so as to carry the additional load which would result from the attachment of the future building. Furthermore, in keeping with this intention, the machinery, when installed, was so located, under the supervision of an expert from the United Shoe Machinery Company, that it would readily coordinate with corresponding machinery to be similarly located in the new addition, and thereby result in doubling the productive capacity of the plant.
While such new building had not been erected by the time of the trial below, respondent's failure to have erected it was in no sense due to any abandonment of its plan for the future expansion of its plant facilities, but on the contrary was attributable, first, to the business depression, and then to the threat of global war, all of which had served as a deterrent to such an undertaking until better conditions should be assured.
By this proceeding the city is seeking to condemn and cut off a triangular tract at the extreme northwest corner of respondent's land, fronting 70 feet 11½ inches on Chippewa Street, and extending southwardly to a depth of 28 feet along the western line of the property. The portion taken contains 994 square feet; and as the space which respondent had reserved for its future expansion is now bounded, it has a horizontal frontage of only 8 feet 10¾ inches, with the remainder of its frontage on a sharp diagonal line representing the hypotenuse of the triangular tract taken. Such a lay of the land, according to respondent's evidence, serves as a vital hindrance to the expansion of its plant facilities in the manner originally planned and contemplated, and thereby materially reduces the fair market value of the entire property.
As a matter of fact, such consequential damage allegedly resulting from the limitation put upon the plant's future expansion was the chief factor taken into consideration by respondent's witnesses in fixing the damages occasioned by the taking, which were variously estimated by respondent's witnesses as being from $27,000 to $30,500. The land actually taken was not only unimproved, but represented only 3½ per cent of the total area of the premises, so that its value necessarily represented but a minor part of the total injury sustained according to respondent's theory of the case. The city's witnesses, on the other hand, estimated the difference in the value of the property before and after the taking at far less amounts, ranging from $398 to $1,080. The jury, for its part, adopted a middle course, and, as already pointed out, awarded respondent $7,000, which, while far below the estimates of respondent's witnesses, was nevertheless far above the estimates of the city's witnesses.
The great burden of the city's complaint has to do with the question of whether it was proper to admit in evidence all the testimony and exhibits introduced by respondent which related in one way or another to the issue of hindrance to the expansion of respondent's plant facilities as a factor to be considered in determining the ultimate question of what would constitute just compensation for the taking of a portion of the property for public use. Actually the question resolves itself into one of whether resulting hindrance to the expansion of the plant was in truth a proper factor to be considered upon the issue of consequential damage to the part of the premises not taken, since if it was, and if it was to be shown in terms of restricted production, then all of respondent's evidence specifically directed to that issue was competent, and any complaint to its admission should necessarily be disallowed.
In a case such as this, where only a part of the whole property is taken, the owner is not in all events restricted to compensation for the part actually taken (which frequently may constitute the least amount of the entire injury done), but he is also entitled to recover for whatever consequential damages may proximately result to the remainder of his land by reason of the taking of a part. The entire tract of land is to be considered as a whole; and the measure of damages, as the parties are agreed, is the difference in the reasonable market value of the entire tract before and after the appropriation of the part actually taken for the improvement. From a practical standpoint this is merely to say that the damages sustained are to be regarded as a unit, although made up of integral parts — the value of the land taken, and the injury to the remainder; but before damages may be recovered upon the theory of injury to the remainder, they must be direct and certain at the time of the appropriation, since if they are but remote or speculative, they are too uncertain to be taken into account in estimating the depreciation in the value of the land.
In the case at bar the city argues that there was no damage sustained to the portion of respondent's property not actually taken in the proceeding, and that the only damage respondent has suffered is for and on account of the taking of the small triangular tract for the immediate purposes of the improvement. Consequential damages are of course not limited to physical injury to the remainder of the property, and the question, therefore, is whether the evidence of hindrance to expansion was direct and certain, and related to a then existing fact materially resulting in a depreciation in the value of the whole property as of the date of the appropriation.
In estimating the amount of consequential damages sustained, or, in other words, the amount of the depreciation in the value of the land, the owner is entitled to have the jury informed as to all those facts relating to the condition of the property which would naturally impress a person of ordinary prudence in negotiating for the purchase of the same. The use to which the property has been devoted, and its capability or special adaptation for such use, are of course primary elements to be taken into account; and anything which is directly injurious to such capability or special adaptation for a particular use, and thereby affects the market value of the property, is therefore competent to be shown as a legitimate factor in bringing about the total damage sustained for which it is contemplated that the owner shall receive just compensation.
In the case of a business establishment, where the property (such as respondent's) is particularly suited for the special use to which it has been put, it is entirely logical that in planning the establishment, ground should have been reserved for future expansion and enlargement; and it is reasonable to assume, as respondent's evidence discloses, that the capability of the premises for such future expansion and enlargement would constitute one of the essential elements which one in that business would take into consideration in arriving at the fair market value of the property. This is not to say that compensation may be awarded upon the theory of injury to future buildings which do not exist, for of course it is true that damages may only be recovered for injury sustained as of the date of the appropriation. If the proof shows, however, that the immediate result of the appropriation is to hinder expansion so as to depreciate the market value of the property as of the date of the appropriation, it relates, in such circumstances, to a then existing fact, and is proper to be shown as one of the elements to be considered in determining the amount of compensation to be awarded. [St. Louis, M. S.R. Co. v. Continental Brick Co., 198 Mo. 698, 96 S.W. 1011.]
In this instance, respondent's intention to expand its plant was at all times a fixed and present one, first evidenced by its acquisition of additional land within two weeks after its purchase of the site of its plant, and again emphasized at the time of its erection of the L-shaped building, which was purposely built according to plans and specifications which contemplated the installation of additional supports on to which the future building might be joined. Moreover, as pointed out, the machinery was located in the L-shaped building with a specific view to its coordination with similar machinery in the new building, the failure to have erected which was due, not to any lack of need for it, or to the abandonment of any such intention, but solely to general business and financial disturbances over which respondent had no control.
There was abundant evidence to show that the hindrance to expansion resulting from the appropriation of the triangular tract was a matter directly and proximately affecting the value of the whole property as of the date of the appropriation; and such fact was therefore not only a proper element of damage to be shown by respondent, but it was competent to be shown in terms of limited production, which was the most accurate manner in which the extent of such damage was capable of ascertainment. It is to be kept in mind that the question was not one of recovery for loss of profits or for injury to business as such, all of which, in and of itself, is regarded as too speculative and remote to be considered as a basis for ascertaining the damages in a condemnation proceeding. On the contrary, the question was one of a present existing fact or condition affecting the then present value of the property as decreased by the taking of the particular portion which the city appropriated; and so regarded, respondent's evidence relating to the resulting hindrance to expansion was relevant to the issue, and the court was right in overruling the objections to its admission. [St. Louis, M. S.R. Co. v. Continental Brick Co., supra.]
The point is made that the court committed error in admitting in evidence respondent's Exhibits Nos. 2 and 3, which were photographs taken from the top of respondent's shoe factory looking west and north. Taken two days before the trial, they disclosed the conditions existing immediately adjacent to respondent's property with respect to the construction of the improvement; and their admissibility was urged upon the ground that the use to which the property appropriated was being put entered into the measure of damages in the case in so far as such character or manner of use might affect the value of the whole property after the appropriation. The city, on the other hand, opposed the admissibility of the photographs upon the theory that they did not show respondent's property itself, but did show the viaduct which was under construction as a part of the change of grade in Chippewa Street, and thereby had the possible tendency to confuse the jury upon the question of damage from change of grade, which the city insisted was not an issue in this proceeding.
There was and could well have been no secret about the fact that the very purpose of the improvement was to effect a separation of the grades of Chippewa Street and the intersecting line of the Missouri Pacific Railroad Company, since not only did the improvement ordinance so provide, but the fact of such provision was also recited in the city's petition upon which the case was tried. Granting that the case is purely a condemnation suit and not an action for damages for change of grade, it does not follow that all reference to the change of grade or the construction of the viaduct was foreign to the matters legitimately involved in this proceeding. On the contrary, the character of use for which the improvement was designed was a proper factor to be considered upon the question of the damage done to the portion of respondent's property not taken by the appropriation; and respondent's counsel time and again reiterated that damages, as such, were not being asked for change in grade, and that their only purpose in directing the attention of the witnesses to such circumstances in the case was to determine to what extent the change of grade or nature of the improvement was being taken into account in appraising the loss that respondent had suffered by reason of the condemnation. The court consistently held that all such evidence was admissible for the purpose of informing the jury with respect to the conditions surrounding respondent's property, and error was neither committed in the introduction of the photographs (State ex rel. v. Bengal (Mo. App.), 124 S.W.2d 687), nor in the subsequent allusions to the conditions which the photographs disclosed.
It is contended that the court erroneously admitted in evidence both the cost of respondent's land and building (the land having been acquired, and the building constructed, quite some time before the date of valuation), and also the fact of subsequent benefit assessments which increased the value of the property.
The city has stipulated with respondent that the cost of the building, exclusive of the cost of the ground, was $108,000, a fact, incidentally, which was testified to by respondent's witness Shapiro, the architect who had prepared the plans for the construction of the building; and having so stipulated for the purposes of our determination of the case, it seems rather inconsistent for the city to argue that reversible error was committed by the admission in evidence of the item covered by the stipulation, as well as by the admission of the additional items of original cost and increased value to which complaint is now directed.
However, quite aside from any question of waiver or lack of timely objection below, we can not agree that reversible error was committed by the admission in evidence of the original cost of respondent's land and building, and of the fact that subsequent benefit assessments were paid which had been levied against respondent's property upon the very theory that its value had been increased because of the construction of the prior improvements.
Generally speaking, all evidence of value is admissible in a condemnation suit which an ordinarily prudent person would take into account in reaching his conclusion respecting the fair market value of the property under consideration, in line with which it is generally held that the price paid for property is admissible as some evidence of its value at the time of the appropriation, except where the purchase was so remote in point of time as to afford no fair criterion of value at the date of valuation, or else where it appears (which is not true in this case) that special considerations of some sort may have induced the original purchase at a price other than its true value. [29 C.J.S., Eminent Domain, sec. 273, p. 1267.]
In the case at bar, the evidence of original purchase price, construction cost, and benefit assessments was therefore properly to be considered for whatever it was worth in estimating the value of the property at the time of the appropriation, and the court committed no error in connection with its admission.
Complaint is made that in appraising the damages, respondent's evidence, in part, duplicated the damages by the addition of specific items otherwise included in the general estimate of loss. If the charge were sustained by the record, it would indeed be a material one, since the measure of respendent's damage was the difference in the value of the property before and after the appropriation; and it was essential that such figure, whatever it was, should take into account each and every specific element of damage which went to make up respondent's total loss.
The record discloses, however, that the charge is not well taken, but on the contrary, grows largely out of the fact that in appraising the total damages, the witnesses were inclined to approach the question from the standpoint of the value of the land actually taken, plus the resulting damage to the part not taken, which, as we have already pointed out, is merely another way of determining the difference in value before and after the appropriation, but without any duplication of damages, as the city would infer.
There is the further point that the court admitted certain evidence of the high cost of land immediately adjacent to respondent's land, which evidence, it is claimed, was speculative and foreign to the issues in the case. Complaint is also made to the testimony that if such land should be acquired by respondent, and its additional building erected upon such land, the cost of the operation of the plant under such circumstances would be greater than would be the case if it were possible for such new building to be erected and joined on to the present L-shaped building in accordance with the original plans and intention of respondent.
Inasmuch as the chief element of damage to the part of respondent's property not taken was the resulting hindrance to expansion because of the impossibility of carrying out respondent's building plans with the triangular tract of land taken away at the northwest corner of the premises, it was competent for respondent to show, not only the cost of any adjacent land upon which a future additional building might be erected, but also the infeasibility of operating its plant under the conditions which the erection of a new building at that location would impose. All this was relevant to the issue in the case, for if additional land could be acquired upon which respondent's enlarged plant could be completed and operated as satisfactorily as would have been the case upon the land originally bought for that purpose, then obviously there would have been no injury done to respondent's property through hindrance to expansion, and its total damages could hardly have exceeded the value of the land actually taken by the appropriation.
It has been said that in the case where no available land is owned by him whose lands is taken by the condemnation, the price at which he may buy equally valuable, convenient, and accessible land may be shown by the owner as measuring the amount of depreciation to which the land damaged, but not physically taken, has been subjected. [City of St. Louis v. St. Louis, I.M. S. Ry. Co., 272 Mo. 80, 197 S.W. 107.] In this case, it was undoubtedly respondent's duty, when injured by the appropriation of a part of its land, to minimize the damage to the remainder if it could; and the circumstance that it could not expeditiously do so was therefore a proper matter to be shown in evidence upon the question of the total damage for which it was entitled to receive just compensation.
Complaint is made that the court erred in admitting the testimony of Wolf, the president of respondent company, to the effect that if it were not for the condemnation proceeding, and some prospective purchaser should desire to buy the land appropriated by the city, he-would not sell it for $40,000, or $50,000, because its sale would cause that much loss to the company. The point is that the test of the damage done to respondent was not the sum for which it might have been willing to sell the land appropriated by the city, but instead its actual value on the market.
The above came as part of the answer to a question as to what, in Wolf's judgment, was the loss that respondent would suffer by reason of the taking of the particular portion of its property. Prior to the answer, there had been an unvailing objection based upon Wolf's alleged lack of qualification to testify as an expert on real estate values, but there was no objection interposed to the particular matter now complained of, as by a motion to strike it out. The only step taken by counsel for the city was to inquire if there was still time to interpose a further objection, not to the answer, but to the question, at which point respondent's counsel announced that he would withdraw the question so as to avoid further argument about it. Of course respondent's damages were not to be determined in the light of what may have been its personal unwillingness to sell; but in the absence of a specific attack upon the answer, and with the question to the witness ultimately withdrawn, there is no basis in the record for the city's insistence that reversible error was committed.
The last point in connection with the admission of evidence is that the court erroneously permitted respondent's witness Shapiro to place a valuation upon the property in question and estimate the damages which were sustained by reason of the appropriation. Shapiro, it will be recalled, was the architect who had drawn the plans for the L-shaped building that was erected; and the point is that as an architect by profession, he was not qualified to testify as to real estate values.
The assessment of damages in a condemnation case is necessarily and inevitably the result of opinion; and the considerations which govern the admissibility of opinion evidence are, for practical purposes, identical with those that actuate ordinarily prudent persons in looking for advice in connection with the conduct of their own personal business affairs. It follows, therefore, that if a witness, whatever his occupation or profession, is one whose opinion would be sought after and given weight by ordinarily prudent persons seeking information upon the question of the value of or damage done to the property which is the subject of the inquiry, he is competent to give his opinion in evidence in the case so far as the matter of his qualification is concerned.
What his opinion may be worth will depend upon the experience he has had in the general field of the inquiry and his opportunity of knowing what he is talking about in the special case before the court; and that he may lack personal knowledge of local real estate values will of course be a factor to be taken into account in determining the weight to be given to his testimony. On the other hand, a man thoroughly familiar with real estate values might, at the same time, have had no experience with the practical operation of a business such as the one damaged by the appropriation, with the result that his opinion, for that reason, might be entitled to carry but very little weight with the jury. After all, the question of land value may be one of minor importance in estimating the consequential damage done to a growing and expanding business; and if the witness has information which entitles him to form an intelligent opinion with respect to the total damages sustained, then he is a competent person to express that opinion to the jury so as to aid it in the performance of its special function of determining the just compensation to be awarded in the case. [St. Louis, M. S.R. Co. v. Continental Brick Co., supra.]
In the instance under consideration, respondent's counsel made it clear that he was not undertaking to elicit Shapiro's opinion upon the basis of his knowledge of real estate values, but instead upon the basis of his information upon the question of loss of production value as the same might affect the ultimate question of the difference in the value of the whole property before and after the appropriation. In the case of this, a going business, the general fact of its productivity and adaptation to a special purpose was highly relevant in so far as it related to the question of the extent to which the value of the property would be presently impaired by reason of the hindrance to the most convenient and economical expansion of the business. Viewed in this light, Shapiro's opinion was one that would reasonably impress ordinarily prudent persons seeking intelligent information upon the question of the damage done to the property; and the court was guilty of no abuse of its discretion in ruling that he was qualified to testify.
Complaint is also made of the fact that Shapiro was permitted to testify that respondent's property was particularly adapted for use as a shoe manufacturing establishment. This point has been effectually answered in connection with what has been said regarding the matter of his qualification as a witness. Suffice it to say that the availability or adaptation of the particular property for certain uses is a proper factor to be taken into consideration in determining the question of its value (State ex rel. v. Cox, 336 Mo. 271, 77 S.W.2d 116), and no error was committed in allowing the witness to take that circumstance into account in reaching his conclusions as to the damage done by the appropriation.
Passing to the instructions, the city assigns error to the refusal of its requested Instruction A, which would have told the jury that any "future" injury to respondent's business resulting from the restriction which the appropriation had imposed upon its capacity to expand was not an element of damage to respondent's property, and that all the evidence, if any, of such "future" injury should be disregarded by the jury in arriving at their verdict.
This instruction was properly refused for the want of relevancy to the actual issues in the case. Respondent at no time sought damages for injury to its "future" business, but only for injury resulting from hindrance to expansion, which was then a present, existing fact, and which brought about a depreciation in the value of the property as of the time of the appropriation. Nor, in fact, were damages sought for injury to respondent's "business," unless the term was employed to refer to respondent's existing property, the depreciation in the value of which was the measure of respondent's just compensation.
These defects in the instruction would alone have justified its refusal, but there is even more to the matter than this. We may assume that the instruction was actually sought by the city for the purpose of having the jury charged that in determining respondent's consequential damages, if any, the matter of hindrance to expansion was not a proper element to be considered. The contrary is true, as we have already pointed out, and if the reference in the instruction to "future" injury should be disregarded, and it should be held as having merely undertaken to withdraw from the case the question of hindrance to expansion as the same might affect the then market value of the property, it was none the less properly refused under the authority of St. Louis, M. S.R. Co. v. Continental Brick Co., supra.
The next complaint has to do with the alleged error in the refusal of the city's requested Instruction B, which was designed to tell the jury that the market value of that portion of respondent's property which was actually taken was not to be determined by the value of the land to the city, nor by the city's necessity of acquiring it, nor by its peculiar value to respondent, and that such considerations should in no way be allowed to affect the determination by the jury of the value of the whole property, or of the strip sought to be appropriated by the city in this proceeding.
Such statement of the law was of course correct, and any refusal on the part of the court to have so charged the jury might well have constituted prejudicial error. The court indeed recognized the propriety of such a charge, and while refusing the city's instruction, gave, of its own motion, instruction No. 4, which told the jury that the market value of respondent's property was not to be determined by the value of the strip appropriated to the city, nor by the city's necessity of acquiring it, nor by its value to respondent, but that instead its market value was that sum which respondent could obtain, if it wanted to sell, but was not compelled to sell, from one who wanted to buy, but was not compelled to buy. It is thus to be seen that the matter embraced in the city's requested Instruction B was fully covered by instruction No. 4, the giving of which would therefore have cured any error in the refusal of Instruction B. [Hicks v. Vieths (Mo.), 46 S.W.2d 604; Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38.]
But as a matter of fact, Instruction B, regardless of its correct pronouncement of the law, was nevertheless properly refused for the reason that typed underneath it, and accompanying it, was the following highly argumentative statement of the city's counsel in support of why it should be given:
"(This instruction was specifically approved in the case of St. Louis, K. N.W. Ry. Co. v. Knapp-Stout Co., 160 Mo. 408, the exact instruction being quoted at the bottom of page 408. The holding of said Knapp-Stout Co. case above cited in approving said instruction was expressly approved in St. Louis v. Smith, 325 Mo. 471, l.c. 479, decided June 11, 1930, and a similar instruction in the form of a Declaration of Law approved.)"
No doubt such statement was intended for the benefit of the court; and for such purpose it would have been proper and right if it had been prepared in such a manner that it might have been detached and retained by the court at the time the instruction was handed to the jury. Such was not the case, however; and consequently there was no recourse for the court but to refuse the instruction in the form requested by the city. Indeed it is surprising to find counsel insisting that the court committed error in refusing such an instruction, and especially so when the court, with due regard for the protection of the city's rights, saw fit to give a corresponding but proper instruction of its own motion informing the jury of the several considerations which were to be excluded in estimating respondent's damages.
Error is next assigned to the giving of respondent's Instruction No. 2, which was an instruction on the measure of damages, and correctly announced the rule that the measure was the difference in the fair market value of the property before and after the appropriation. Following the announcement of such rule, the instruction further charged the jury that in determining such fair market value, they might take into consideration the location and the uses to which the property was adaptable and suitable both before and after the appropriation, and having regard to the existing business or wants of the community, or such as might be reasonably expected in the near future, "together with all the conditions as shown in evidence in this case."
The city's objection is addressed to the above quoted clause, which, it is claimed, gave the jury a roving commission to base their verdict upon testimony which was not admissible in evidence. Having disallowed all the city's contentions regarding the admissibility of evidence, it is obviously follows that the instruction is not to be condemned upon any such ground of complaint against it. As a matter of fact, it was the duty of the jury, in estimating the damages, to consider all the conditions shown in the evidence; and if error had been committed in such respect, it would have been in the admission of the evidence, and not in the giving of such direction to the jury.
The last instruction complained of is respondent's Instruction No. 6, which submitted the question of hindrance to expansion as a factor to be considered in determining the depreciation in the fair market value of the property. The challenge is not to the form of the instruction, but to the propriety of the consideration of such an element of damage, a matter which has been fully answered by what has been said in regard to the admissibility of evidence upon that point.
It is finally insisted that there was no substantial evidence in the case to support an award of damages in the sum of $7,000. As briefed by the city, this point likewise presupposes that respondent's evidence of damage was erroneously admitted, and that the several estimates of its witnesses were based upon illegal and improper elements of damage. For reasons already appearing, there is no merit to this contention.
Along with the case has been taken respondent's motion for an award of damages not exceeding ten per cent of the amount of the judgment under Section 1230, Revised Statutes Missouri 1939, Missouri Revised Statutes Annotated, section 1230. The record affords no basis for holding that this appeal was taken merely for vexation and delay, but on the contrary, presents fairly debatable questions of law upon which the city was entitled to seek the decision of this court. Respondent's motion for an award of damages should therefore be overruled.
It follows that the judgment rendered by the circuit court should be affirmed, and the Commissioner so recommends.
The foregoing opinion of BENNICK, C., is adopted as the opinion of the court. The judgment of the circuit court is, accordingly, affirmed, and the respondent's motion for an award of damages overruled. Wm. C. Hughes, P.J., and McCullen and Anderson, JJ., concur.