Summary
In State ex rel. State Highway Commission v. Young, 324 Mo. 277, 23 S.W.2d 130, in addition to having the usual governmental subdivisions, the farm was occupied by different tenants who farmed their respective parcels separately.
Summary of this case from Public Water Supply Dist. v. Alex Bascom Co.Opinion
December 30, 1929.
1. STATE HIGHWAY: Type of Road: Judicial Notice. Though the record does not disclose the type of road to be constructed by the State Highway Commission, the court will take judicial notice from its location and the Centennial Road Law (Laws 1921, 1st Ex. Sess., sec. 29, pp. 131, 143, 161) that it is to be a hard-surfaced road, with grades, bridges and culverts, constructed and maintained by the State.
2. ____: Damage: To Whole Farm or Separate Tract. Where a tract of land consists of several parcels all connected and forming one body and owned and used together for a common and general purpose and as one property, the jury, in estimating the damages sustained by the owner by reason of the construction of a highway through one of the parcels, should consider the injury to the whole, and not simply the injury to the one parcel through which the highway is constructed.
3. ____: ____: ____: Occupied by Tenants. Where the farm consists of 698 acres, held by one owner and devoted to its only suitable purpose of agriculture, the circumstance that it is occupied by different tenants who farm their respective parcels separately is not alone sufficient to destroy the oneness of the farm, all parts of it being shown to be adaptable to use as a unit at the time of the appropriation of a part of one parcel for a state highway.
4. ____: Benefits and Damages: Evidence: Fencing: Specific Damages. Where the farm consisting of 698 acres is a unit, all parts of it adaptable to the same general and common uses and held by a single owner, and a state highway is constructed through one eighty-acre parcel, the evidence should not be restricted to a showing of the damages and benefits to the particular eighty-acre tract. In such case the damages, as well as the benefits, are to be assessed as for one entirety, and the evidence as to the issue of benefits must in its essence relate ultimately to the whole farm. But evidence concerning the physical effect of the construction on specific parts of the farm, such as the necessity of fencing a particular field, the shape in which it will be left, and the draining or impounding of water in a particular place, is admissible.
5. ____: ____: Separate Parcel: Evidence. Where there is an issue as to whether the particular tract through which the highway is constructed is used or usable as a part of the whole farm, and the fact is negatived by substantial evidence, the party so contending should be allowed to prove the separate damages to the particular tract. But where there is no substantial evidence that the tract through which alone the highway is constructed should be treated as a segregated parcel, distinct and separate from the whole farm, the evidence should not restrict the damages and benefits to such tract.
6. INCOMPETENT EVIDENCE: Waiver: Delayed Objection. Delay in making an objection to incompetent testimony is not a waiver where at the time it is given its significance in relation to the issue has not become apparent. Nor is the right to object to the line of incompetent evidence foreclosed for the remainder of the trial by a failure to object when the first incompetent but apparently relevant testimony is given.
7. INCOMPETENT EVIDENCE: Admission: Delay in Objection: Waiver: Condemnation. The general rule is that the admission of improper evidence without objection does not render proper the admission of subsequent testimony of the same effect, or of similar testimony to other facts, over objection. Where the issue in the condemnation case as to the proper measure of damages was important, it would be unjust to hold that the mere lapse of counsel in failing to object to the testimony on direct examination of the first witness concerning the damages to the particular parcel of the farm through which the highway was constructed, should cut off the right to challenge the testimony of the same effect of sixteen other witnesses, and thereby open the way for the landowner to recover damages on a false theory.
8. ____: ____: Condemnation: False Theory of Damages: Cured by Instruction. An instruction asked by and given for the condemnor, correctly stating the measure of damages and the things to be considered in determining the amount, though not explicitly a withdrawal of incompetent testimony, but nevertheless restricting the application of the testimony and leaving it all to be considered within the limits set by the instruction, cures the error in admitting the incompetent evidence.
9. STATE HIGHWAY: Condemnation: Instructions: Submissible Issue. An assignment that error was committed in giving instructions in the condemnation case on the ground that the respondent landowner failed to sustain the burden of proof by adducing substantial evidence showing damage to the whole farm, through a parcel of which the highway is to be constructed, and that therefore the issue was not submissible, cannot be sustained where there was evidence of the value of the land appropriated and of the cost of constructing fences on each side of the highway, and at least one witness, on cross-examination, testified that he had considered the damage to said parcel in its relation to the whole farm and had arrived at his estimate accordingly.
10. ____: ____: Instruction: Peculiar Benefits. In a proceeding to condemn land for a state highway, an instruction telling the jury that from the ascertained damages they "should deduct the benefits, if any, peculiar to such tract arising from the running of the road through it; and by peculiar benefits is meant such benefits derived from the location of the road as are peculiar to the tract itself, and not shared in common by it and other lands in the same neighborhood," does not correctly define the special and exclusive benefits enjoyed by land abutting on a highway improvement, and is erroneous. [Following State ex rel. v. Jones, 321 Mo. 1154, and State ex rel. v. Duncan, 323 Mo. 339.]
11. ____: ____: Excess of General Benefits: Deduction. An instruction telling the jury that if the benefits received by respondent's farm from the construction of a highway through a portion of it are substantially greater than the benefits accruing to other lands in the community, the respondent is chargeable with the excess he enjoys, as an offset to his damages, should not be given. It might be construed by the jury as authorizing them to charge respondent with general benefits.
12. ____: ____: Deductible Benefits. It is only special benefits that may be offset against damages in a condemnation proceeding; and it is not ordinarily true that, if a tract receives benefits substantially greater in degree than benefits of the same nature accruing to other lands in the neighborhood, the excess thereby become special benefits.
13. ____: ____: General and Special Benefits: Distinction. The rule in this State in the ordinary condemnation case is that special benefits are to be differentiated from general benefits by their nature or kind, rather than by the amount or degree, and that only special benefits can be deducted from the damages, the reason being that general benefits to all lands in the neighborhood are not the same, but vary as to each individual farm.
Appeal from Saline Circuit Court. — Hon. Robert M. Reynolds, Judge.
REVERSED AND REMANDED.
B.F. Boyer for appellant.
(1) The court erred in allowing the witnesses for defendant landowners to restrict their testimony as to the damages suffered to those accruing to the eighty-acre tract across which the road ran out of the farm of 698 acres owned by the defendants. Glendenning v. Stahley, 173 Ind. 674, 91 N.E. 234; Elliott on Roads Streets (4 Ed.) sec. 280; Chicago, Milwaukee St. Paul Railroad v. Baker, 102 Mo. 553; Elliott on Railroads (3 Ed.) sec. 1257; Sutherland on Damages (4 Ed.) sec. 1088; Railway v. Aubuchon, 199 Mo. 368; Railway Co. v. Waldo, 70 Mo. 629; Union Elevator Co. v. Ry. Co., 135 Mo. 353; K.C. etc., Ry. Co. v. Norcross, 137 Mo. 415; Art. 2, sec. 21, Mo. Constitution; Sec. 21, Centennial Road Law, Laws 1921, 1st Ex. Sess., p. 131. (2) The court erred in giving at the defendants' request, instructions 1, 2 and 3, for the reason that the defendants had failed to sustain the burden of proof as to damages to the whole tract owned by them, proving instead damages to only eighty acres across which the road ran, for which reason they were not entitled to go to the jury. Ry. Co. v. Blechle, 234 Mo. 48; Lane v. Nunn, 211 Mo. 280. (3) The court erred in refusing to give plaintiff's Instruction 6, which correctly stated the law of special and general benefits. Rives v. Columbia, 80 Mo. App. 173; Ill. Mo. Bridge Co. v. Stone, 194 Mo. 175; Ripkey v. Binns, 264 Mo. 505; St. Louis, Oak Hill C. Ry. v. Fowler, 132 Mo. 670; Ry. Co. v. McElroy, 161 Mo. 554. (4) The court erred in refusing plaintiff's Instruction 5, which correctly stated the law of special benefits. Goodsell v. Taylor, 41 Minn. 207, 4 L.R.A. 673; New Albany Woolen Mills v. Myers, 43 Mo. App. 124; Gahiro v. Realty Construction Co., 115 N.Y.S. 334; Ladieu v. Sherwood etc. Co., 109 N.Y.S. 479. (5) The court erred in giving defendants' Instruction 1 for the reason that said instruction is an erroneous statement of the law on special benefits. So. Ill. Mo. Bridge Co. v. Stone, 194 Mo. 175; Rives v. Columbia, 80 Mo. App. 173; Ripkey v. Binns, 264 Mo. 514; St. Louis, Oak Hill C. Ry. Co. v. Fowler, 142 Mo. 670; 2 Nichols on Eminent Domain (2 Ed.) sec. 247; Newby v. Platte County, 25 Mo. 258. (6) The verdict shows on its face that the jury considered merely the testimony offered by the defendants as to the damage to the eighty-acre tract of land owned by the defendants, and further shows that the jury did not consider the fact that the defendants owned other lands contiguous to said eighty-acre tract and that said eighty acres was but a part of defendants' farm of 698 acres, which whole farm might have been benefited under the evidence. Ry. Co. v. Aubuchon, 191 Mo. 352; Ry. Co. v. Baker, 102 Mo. 559; Sutherland on Damages (4 Ed.) sec. 1088
James James for respondents.
(1) The court did not err in permitting the respondents to offer evidence as to the damage done to the eighty-acre tract of land through which the road runs in a diagonal direction. St. Louis, Oak Hill C. Ry. Co. v. Fowler, 113 Mo. 469. If the landowner is willing to base his claim for damages merely on a part of his land instead of the entire tract, certainly the condemnor can have no ground to complain. After the landowner has proven his damages the condemnor has the right to offer evidence showing special benefits, not only to each tract or subdivision, but to all the owner's land, which special benefits are deductible from the landowner's damages. Appellant in his brief complains that respondents restricted their damages to the eighty-acre Barnes tract, but it is apparent from the record that this was the portion of respondents' land that was particularly damaged. In all the cases cited and quoted from by appellant, it is held rightly that the landowner is entitled to compensation for damages to all the lands which are actually damaged, but no more. (2) Plaintiff made no objection to defendants' evidence as to damages sustained to the eighty-acre tract until a large part of it was already in. Defendants' first witness, Don Young, testified at length as to the damage to the eighty-acre tract without objection, and not until after plaintiff had questioned him on cross-examination at the close of his evidence, did the plaintiff make any objection, and then moved to strike it out. This is too late. State v. Sykes, 191 Mo. 79; State v. Forsha, 190 Mo. 326; Boulicalt v. Glass Co., 283 Mo. 237; Gieske v. Redemeyer, 224 S.W. 94. (3) Defendants' instructions 1, 2 and 3, properly declare the law in this case. McReynolds v. Ry. Co., 110 Mo. 487; K.C. N.C. Ry. Co. v. Shoemaker, 160 Mo. 425. No demurrer was asked and appellant cannot complain. Junge v. Pehl, 240 S.W. 278; Hodge v. Ramsey, 216 S.W. 568; McCracken v. Schuster, 179 S.W. 757. He cannot say that there was no evidence on this matter to submit to the jury. (4) The court did not err in refusing Instruction 6 asked by the plaintiff. The matter of general benefits pertains to all the lands in the neighborhood or community through which the road runs, whether the lands are contiguous to the road or not. Special benefits are, or may be, special or peculiar to one or more tracts along the road and contiguous thereto, in the neighborhood, which benefits are different from the benefits to all the other lands in the neighborhood through which the road runs. Combs v. Smith, 78 Mo. 32; Bridge Co. v. Stone, 194 Mo. 188. The instruction asked attempts to create the impression that special benefits may be considered either to lands adjacent to the road, or to lands back away therefrom for some distance. (5) Instruction 1 for defendant is an exact copy of the instruction given in the case of McReynolds v. Railway Co., 110 Mo. 487, which instruction was approved by the Supreme Court and has been followed in all subsequent decisions. Newby v. Platte Co., 25 Mo. 258; Jackson Co. v. Waldo, 85 Mo. 637; Daugherty v. Brown, 91 Mo. 26; Lingo v. Burford, 112 Mo. 157; Mississippi Co. v. Byrd, 4 S.W.2d 810; Rives v. Columbia, 80 Mo. App. 179. (6) There was abundant evidence to support the verdict of the jury. There was very little evidence tending to show that this land received any special benefits over and above other lands in the community along the road. The matter was submitted to the jury on a fair and impartial trial and their verdict is responsive to the evidence, and conclusive.
This is a proceeding brought by the State Highway Commission to condemn for State Highway No. 20 certain lands in Saline County belonging to the defendant, George M. Young. Upon the filing of the petition, commissioners were duly appointed, who assessed the defendant's damages at $900. The plaintiff filed exceptions to the report and requested a trial by jury. The jury assessed the damages at $2300. From the judgment on that verdict the plaintiff has appealed. The assignments of error complain of the admission of testimony and the giving and refusal of instructions.
The respondent Young owned a farm containing 698 acres in one body, lying in Sections 9, 10, 15 and 16, Township 50 N., Range 20 W., as shown on the accompanying plat. For convenience in reference we have divided it into four tracts: The Phil Young tract, on the south side of the farm, containing 178 acres; the Don Young tract, in the center of the farm and bordering on the south side of the west portion of the state highway, containing 320 acres; the Allen tract, abutting the same west part of the highway on the north side and containing about 120 acres; and the Barnes tract, containing about eighty acres. This latter is diagonally bisected by the state highway from southwest to northeast, making two triangles each of about forty acres. Of the whole farm, as divided by the highway, approximately 538 acres are left in one body on the south side of the road, and 160 acres on the north side.
On the north side of the whole farm ran a county dirt road; on the south side a road known as the Arrow Rock Road. There was formerly a public road on the east side, but it had fallen into disuse, if it was not abandoned, and brush had grown up in it. Beginning at the northeast corner of the Barnes tract there was a private road running south on the east side thereof and meandering southerly along the middle line of Section 10 through the farm to the Arrow Rock Road. This private road was the only outlet from the farm to the two public roads on the north and south sides thereof. Located upon it were the dwelling houses of Phil and Don Young, the respondent's sons. The dwelling house on the Allen place was near the public road on the north, and the Barnes house was on the south triangular half of that tract near the east side, close to and facing the private road leading south. Barnes was a tenant. The Young brothers farmed their two tracts, and it seems the respondent farmed part of the Allen tract and rented the rest of it.
The strip taken for State Highway No. 20, and for an incidental borrow-pit from which to obtain material for a fill, was 7.57 acres in area, and was appropriated for that portion of the highway between the cities of Slater and Marshall. This highway furnishes the farm with a shorter and better route to these points than it had before. We do not find the record discloses the type of road to be constructed, though the witnesses speak of it as being sixty feet wide with easy grades and curves; but we take judicial notice from the Centennial Road Law, Laws 1921 (1st Ex. Sess.) section 29, pages 131, 145, 161, that it is to be a hard-surfaced road with grades, bridges and culverts all constructed and maintained by the State.
In giving their testimony the witnesses for the respondent estimated the value of the strip taken at $125 to $160 an acre and the cost of fencing the highway on both sides at about $1,000. The witnesses for the appellant placed a lower value on the strip, $80 to $125 an acre, and said nothing about the cost of fencing.
Except as to the fencing and the land taken, the respondent in developing his case restricted his questions concerning damages to the damage to the Barnes tract alone. The witnesses stated their estimates of damages in dollars and cents and admitted they were arrived at by taking the Barnes eighty-acre tract and considering its separated and triangular halves distinct and apart from the rest of the farm. In other words, the respondent proceeded on the theory that his damages consisted of the value of the strip of land taken, plus the total cost of fencing, plus the diminution in value of the remaining part of the Barnes tract figured as a separate parcel. To such singling out of one tract the appellant repeatedly objected and saved exceptions.
There was substantial testimony tending to show that special benefits accrued to the whole farm and enhanced its market value $5 to $12.50 an acre. On the other hand there was testimony that the farm received no special or peculiar benefits different from other lands in that community along the state highway. If necessary, other evidence will be noted in the discussion.
I. The appellant's first point is that the court erred in allowing the witnesses for respondent to restrict their testimony as to damages to those accruing to the eighty-acre Barnes tract across which the road ran, out of the whole farm of 698 acres, this on the theory that the damage to the Barnes tract standing alone was not the true measure of damages to the whole Damages: farm resulting from the severance of the Barnes tract To Farm into two triangles. It is a well-established rule that as Whole: where a tract of land consists of several parcels all Evidence. connected and forming one body and owned and used together for a common or general purpose and as one property, the jury, in estimating the damages sustained by the owner by reason of the condemnation, should consider the injury to the whole and not simply the injury to the parcels touched by the appropriation. [Wyandotte, K.C. N. Ry. Co. v. Waldo, 70 Mo. 629, 632; Springfield S. Ry. Co. v. Calkins, 90 Mo. 538, 544; C., M. St. P. Ry. v. Baker, 102 Mo. 553, 559, 15 S.W. 64; Union Elevator Co. v. K.C. Sub. B. Ry. Co., 135 Mo. 353, 365, 36 S.W. 1071, 1073; K.C. Sub. B. Ry. Co. v. Norcross, 137 Mo. 415, 424, 38 S.W. 299, 301; St. L.M. S.E. Railroad Co. v. Aubuchon, 199 Mo. 352, 368, 97 S.W. 867, 871; St. L.M. S.E. Rd. Co. v. Drummond Realty Inv. Co., 205 Mo. 167, 174, 103 S.W. 977, 978; 1 Elliott on Roads Streets (4 Ed.) sec. 288, p. 342; 2 Elliott on Railroads (3 Ed.) sec. 1257, p. 828; 2 Lewis, Eminent Domain (3 Ed.) sec. 698, p. 1207; 9 L.R.A. (N.S.) p. 792, note.]
This rule applies to this case since the farm in question is of the character mentioned. It was held by one owner and was by him devoted to its one and only suitable purpose, agriculture. The circumstances alone that it was occupied by different tenants who farmed their respective parcels separately is not sufficient to destroy the oneness of the farm, all parts of it being shown to have been adaptable to use as a unit at the time of the appropriation. Damages for the appropriation of the part taken and for fencing, were claimed for the whole farm as a unit. Moreover, the respondent assumed the entirety of the farm in his instruction numbered 2. That instruction allowed him as compensation the value of the land taken and the damage to the remainder, considering "the size and shape of the two tracts into which the farm is divided," etc. Again, the respondent in his brief concedes this proposition by stating that, "after the landowner has proven his damages (to one parcel) the condemnor has the right to offer evidence of special benefits not only to each tract or subdivision, but to all the owner's lands, which special benefits are deductible from the owner's damages."
In such circumstances the rule requires the assessment of damages as well as benefits to be made as for one entirety, and evidence in support either of the issue as to damages or the issue as to benefits, in order to be admissible, must in its essence relate ultimately to the whole. However, with respect to injuries or advantages, as distinguished from damages or benefits in the legal sense of the latter terms, it was not improper to develop in evidence any injury sustained or special advantage received by any parcel, if it was considered in relation to the rest of the farm and would by reason of its nature affect the value of the farm as a whole. [St. L., O.H. C. Ry. Co. v. Fowler, 113 Mo. 458, 469-70.] For instance, there is evidence in nearly every such case concerning the physical effect of the condemnation on specific parts of the whole area involved, such as the necessity of fencing a particular field, the shape in which it will be left, the draining or impounding of water at a particular place and the like. All these have their legitimate bearing when measured by their effect on the whole.
But the evidence complained of here was not directed to the question as to how the entire farm would be affected. After showing the Barnes tract would be cut into two triangles, some of the respondent's witnesses gave it as their opinion that that particular eighty acres would be diminished in value as much as $75 per acre by reason of being severed into two irregular portions — just as if that were all the land the respondent owned — whereas the north triangle throughout its whole length of one-half mile adjoined the Allen tract and still constituted a part of a 160-acre body of land, and the south triangle for a distance of one-fourth mile abutted the 498 acres lying still further south. These latter facts were ignored, indeed, expressly excluded from the calculations of every witness for respondent, although it may well be that if they had been taken into consideration the witnesses would have said the decrease in value per acre was less. Either triangle almost certainly would be worth more in connection with the land it adjoined than it would be by itself, and the adjoining land might be benefited in value by the addition giving it more frontage on the improved road. Taking the farm as a whole, the damages from the severance of the Barnes eighty acres might not be as great as if that tract were a separate unit. For these reasons the admission of the testimony complained of was erroneous.
We do not mean to say evidence showing the monetary damage to a particular parcel of a whole tract would not be admissible in any circumstances. The evidence might be connected up with other evidence so as to become competent, or it might be elicited on cross-examination in an effort to test the accuracy or truthfulness of the witness. And in any case where there is an issue as to whether the particular parcel is used or usable as a part of the whole, and that fact is negatived by substantial evidence, the party so contending should be allowed to prove the separate damages on his theory of the case. [St. L., M. S.E. Railroad Co. v. Aubuchon, supra, 199 Mo. l.c. 368, 97 S.W. l.c. 871.] But in this suit there was no substantial evidence that the Barnes tract should be treated as a segregated parcel, and as we have said, the respondent conceded the contrary by his instruction on the measure of damages and the admission in his brief.
II. The respondent advances two reasons why the error in the admission of this evidence was cured. The first is that the appellant permitted the respondent's first witness to testify concerning the damages to the Barnes tract alone, without objection. That is true, but the matter arose in this Failure to way. On direct and redirect examination the witness Object: told about the value of the land appropriated, the Waiver. fencing that would be required on the whole farm and what damage would result from cutting through the Barnes eighty acres. The examination proceeded on the apparent theory that respondent was attempting to show the damage to the whole farm. On re-cross-examination the appellant brought out that in making his estimate of the money damages to the Barnes tract the witness had excluded from his consideration the fact that the two triangles adjoined other parts of the same farm. The witness said the north triangle could not be figured as making one body with the Allen tract because there was a mortgage on the latter! The appellant objected and moved to strike out the previous testimony, but was overruled. Thereafter, throughout the trial the objection was interposed repeatedly.
The respondent says the delay in making the first objection waived the error, citing such cases as Boulicault v. Oriel Glass Co., 283 Mo. 237, 247, 223 S.W. 423, 426, which holds that if a question calling for incompetent evidence is not objected to and the answer of the witness is responsive, a motion to strike it out comes too late. We think the authority is not in point because in that early stage of the trial the respondents had not been sufficiently developed to make the significance of the question apparent. But even if we be wrong in that and concede appellant's counsel was caught napping it does not follow that the right to object to this line of testimony was thereby foreclosed for the remainder of the trial.
In some cases where incompetent evidence was admitted over objection, after evidence of the same class had previously been introduced without objection, the courts have said the error was not prejudicial. [Monahan v. K.C. Clay Coal Co., 58 Mo. App. 68, 75; Bauer Groc. Co. v. Smith, 74 Mo. App. 419, 424; Bruce v. Bombeck, 79 Mo. App. 231, 237; Roy v. Kansas City, 204 Mo. App. 332, 343, 224 S.W. 132, 138; Morris v. U.D.B. T. Co. (Mo.), 8 S.W.2d 11, 15; Neely v. C.G.W. Rd. Co. (Mo. App.), 14 S.W.2d 972, 978.]
But these cases were decided on their own peculiar facts. The general rule is that "the admission of improper evidence without objection does not render proper the admission of subsequent testimony to the same effect, or of similar testimony to other facts, over objection." [38 Cyc. p. 1397; 9 Ency. Ev. pp. 41-3; Smith v. Sov. Camp. W.O.W., 179 Mo. 119, 133-4, 77 S.W. 862, 866; Roberts v. Nowlin (Tex. Civ. App.), 290 S.W. 800, 801; Barrows v. Alford, 129 Okla. 255, 267, 264 P. 628, 630.] The issue in this case as to land valuations and damages was important, hotly contested and ran clear through the trial. It would be unjust to say the mere lapse of counsel in failing to interpose an objection covering this point on the direct examination of respondent's first witness should cut off appellant's right to challenge the testimony of sixteen other witnesses for respondent on the same point, and opened the way for him to recover on a false theory. The appellant's failure to object did not mislead the respondent or hurt his case. We think there was no waiver.
III. Respondent's second contention is that even though the admission of evidence showing the damage to the Barnes tract separately was error, the error was cured by Incompetent Instruction 1 given by the court at appellant's Evidence: request. That instruction said, in substance, that Cured by in determining the damage or benefits resulting Instruction. from the condemnation to the part of the respondent's land remaining after the appropriation, they should consider such damages or special benefits as affected the whole of said remaining lands and not those affecting merely some particular part thereof as a separate and distinct tract.
It is the rule, save in exceptional circumstances, that error committed in admitting incompetent evidence is cured by the giving of an instruction withdrawing the evidence. [Stauffer v. Met. St. Ry. Co., 243 Mo. 305, 321, 147 S.W. 1032, 1036; Grott v. Johnson, S. S. Shoe Co. (Mo.), 2 S.W.2d 785, 788; McCarter v. Burger (Mo. App.), 6 S.W.2d 979, 981.] The instruction under consideration is not explicitly a withdrawal instruction. Instead, it merely restricts the application of the testimony, leaving it all to be considered within the limits set. But the necessary effect of the instruction was to direct the jury to disregard the testimony admitted insofar as it tended to show damage to the Barnes tract as a separate unit. It was all that appellant asked and the court gave it in the form requested. On the facts in this record we think it was sufficient to cure the error.
IV. The appellant complains also of the giving of respondent's instructions numbered 1, 2 and 3, on the sole ground that the defendant failed to sustain the burden of proof by adducing any substantial evidence showing damage to the whole Submissible farm, in consequence of which the issue was not Issue. submissible. This contention cannot be sustained. There was evidence as to the value of the land appropriated and as to the cost of fencing, and in addition the testimony of at least one witness, Harris, on cross-examination was that he had considered the damage to the Barnes tract in its relation to the whole farm, and had arrived at his estimate accordingly.
V. Respondent's instruction numbered 1 is further assailed on the ground that it erroneously defines special benefits to be those which are unique and enjoyed by the respondent's farm alone. That part of the instruction told the jury Instruction: that from the damages ascertained they "should Peculiar deduct the benefits if any peculiar to such tract Benefits. arising from the running of the road through it; and by peculiar benefits is meant such benefits derived from the location of the road as are peculiar to the tract itself, and not shared in common by it and other lands in the same neighborhood."
In the giving of this instruction the learned trial judge followed a form approved in McReynolds v. K.C., C. S. Ry. Co., 110 Mo. 484, 487, 19 S.W. 824, and later sanctioned in theory in Mississippi County v. Byrd, 4 S.W.2d 810, 812. But since the trial of the case below an instruction of similar pattern was condemned by this court en banc in State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338, 340. That decision holds the advantages enjoyed by land from abutting on a highway improvement may be a special benefit, notwithstanding other lands along the highway are similarly benefited. In other words the special benefits do not have to be exclusive and peculiar to the one tract involved. Following the well-reasoned opinion in the Jones case, an instruction identically like the one in this cause was disapproved in State ex rel. State Highway Commission v. Duncan, 323 Mo. 339, 19 S.W.2d 465, 466-7. So it must be ruled the giving of the instruction in this instance was error.
VI. In view of the fact that the case may be retried, we shall consider one other point. The appellant complains of the refusal of his instruction numbered 5, which condensed, states this proposition: that although other lands in the Deduction community received benefits of the same nature from of General the construction of the highway, yet if the benefits Benefits. derived by the respondent's farm were substantially greater in degree than those accruing to the other lands the respondent was chargeable with the excess benefits he enjoyed, as an offset to his damages.
We think the trial court was correct in rejecting this instruction. It might allow the respondent to be charged with general benefits. Granting there may be exceptions in unusual circumstances, it is not true ordinarily, at least, that if a tract receives benefits substantially greater in degree than those of the same nature accruing to other land in the community, the excess benefits thereby become special — in which event alone they may be offset against damages in a condemnation proceeding. As expressed in appreciation of market value, general benefits, themselves, may differ in amount or degree varying with the tract, its remoteness from the improvement, intrinsic character, etc. All the land in the community may not — almost certainly will not — receive the same general benefits in a monetary sense; and the general benefits derived by the particular tract in litigation might be greater than those enjoyed by any other land, and would be reflected in its increased value. But only that part of the increase resulting from special benefits — those, if any, arising from the land's position directly on the highway improvement, such as availability for new or better uses, facilities for ingress and egress, improved drainage, sanitation, flood protection and the like — would be chargeable.
The ultimate question in a case like this does not involve a determination of the amount of benefits in dollars and cents enjoyed by the land involved as compared with other lands in the community. What would be the yardstick? Would they be measured against the highest benefits or the lowest benefits received by any other tract, or against the average level of benefits, or what? Such a rule would be very difficult of application in the ordinary case, and would not reach the real fact to be ascertained. The true inquiry is how much of the augmented market value of the particular tract is attributable to special benefits. Sometimes it may be helpful in the solution of this question to find out how the improvement affects other land in the community not on the highway, but if and when this is so, the facts are of value only as evidence on the main issue. While the distinction is sometimes hard to draw, the rule in this State in the ordinary case is that special benefits are to be differentiated from general benefits by their nature or kind rather than by the amount or degree. [State ex rel. State Highway Commission v. Jones, supra (15 S.W.2d l.c. 340); 10 R.C.L. sec. 140, p. 159; 20 C.J. sec. 259, p. 822; 2 Lewis, Eminent Domain (3 Ed.) sec. 702, p. 1213; 2 Elliott on Railroads (3 Ed.) sec. 1251, p. 822; 2 Nichols on Eminent Domain (2 Ed.) sec. 249, p. 765; Randolph, The Law of Eminent Domain, sec. 270, p. 251; L.R.A. 1918A, p. 885, note; 9 L.R.A. (N.S.) p. 783, note.]
For the error, in giving respondent's instruction number one, the cause is reversed and remanded. Lindsay and Seddon, CC., concur.
The foregoing opinion by ELLISON, C., is adopted as the opinion of the court. All of the judges concur.