*1 Pelligreen and Adele W. v. St. Louis Electric Edmond L. Siemers Railway Company, Appellant. 130. Terminal One, April Division 1941. Rehearing Denied, July 25, 1941. Overruled, to Transfer Banc
Motion October
683- *2 Bierman for Gilbert, Wolfort, appellant. Allen & Anderson, Lyng Reardon & B. respondents. and J. Steiner for *4 enjoin BRADLEY, sought to C. Plaintiffs Louis, underground railway Street, in Twelfth St. constructing an By stipulation proceeded the cause lot abutted. upon seq., 1504 et R. Sec. Ann. one in condemnation under seq. appointed seq., p. 1533 et Commissioners Stat., sec. 1340 et exceptions; for defendant reported; plaintiffs filed *5 found and judgment The reversed the cause appealed. was and plaintiffs and Ry. Electric Co., et v. St. Louis Terminal al. remanded. [Siemers A second trial in a (2d) 125 S. W. resulted Mo. 343 687 plaintiff $19,750. verdict for for On motion for a new trial a $15,250 of made; judgment remittitur $4500 was for entered, was de- appealed, fendant and the cause here for second time.
Plaintiffs owned the lot at the southwest corner Franklin Avenue and Twelfth Street. The lot 32 extended feet east west on Frank- and lin and 75 feet north and south on Twelfth. Before the construction subway of the story there was on the building three brick lot with building north, basement. The main faced and extended 30 feet east Franklin, and west on and south on Twelfth about 40 or 45 feet. On the west side of the ell, width, lot feet extended south from the main building to the line lot, south and the area east the ell was yard. There a first floor was entrance on Franklin building and Twelfth. The second and third floors of the main through gate and the ell were reached in the Twelfth yard Street stairways. fence and basement,
The first floor and prior subway, for rented per $160 month. The floor second was for and $60 rented the third per $45 for building month. The wall brought east main $150 per sign purposes, brought and the south wall of the ell $75 per year told, purpose. for the same All before the subway, brought construction of the an annual rental income of $3405. The building old; occupied never after the comple- subway, tion torn but was down. opinion,
In the (343 former was stated Mo. 125 S. W. 867) l. c. : “A trench was in Twelfth and in Franklin Street excavated alongside appellants’ Avenue property. The trench was from top 100 feet at with the line in Twelfth Street— —flush deep, tapering to 45 feet and sides so that the trench was some bottom, 35 or feet wide at the on which the rails were laid.” assigned instructions, given Error refused, on the evidence, alleged admission exclusion on an excessive verdict. if jury, they plain-
Plaintiffs’ instruction No. 1 told the found for tiffs, you “in may to assess such sum as find believe compensate the plaintiffs difference, any, will if evidence, between the market value of mentioned in the immediately subway construction before the of the and the railroad along plaintiffs’ property, and prop- therein the market value of said erty immediately after the construction of and railroad.” said the separate
The instruction then elements enumerated damages, might arriving be considered they plaintiffs. enumerating After elements to be found considered, “Upon the instruction concluded: consideration of and determine elements, money these should find what sum of reasonably compensate fairly plaintiffs for the will difference directly market of their property proximately value caused *6 by you the construction therein and subway of said and railroad however, damages, should such plaintiffs award amount of less such special benefits, if the plaintiffs. to the any, property as accrue of damages, But, the you can any special before from deduct benefits you must that and believe the evidence find to-,the directly switching made railroad accessible defendant’s facilities, any, subway if in the in Twelfth located Street.”. says: (1)
Of That makes instruction No. defendant it unwar- erroneously permitted it recov- assumptions; (2) ranted that ery permanent although injury building, such commissioners; claim was withdrawn matter before the when the was (3) loss lateral support that there was n.o submission support; (4) damages, with did not for interference restrict .that any, damages, access different in to such if that were by abutting owners; (5) character to that that sustained all other roving com- is a a instruction comment on the evidence mission. ‘‘ n says any rents Defendant that that the instruction assumes loss of ingress by the due to loss of tenants interference with was caused egress by defendant; have that tenant would assumes paid stayed rent, the same or other tenants would rent, by the vacated same that the rent tenants paid and assumes who after the for the vacation was reasonable rental by the tenants. they determining The instruction told the. ' extent, any, might if “take into consideration' tenants, by due plaintiffs of rents loss of loss sustained ” did quite It is direction plain the evidence. find from means, plaintiffs What defendant not assume lost rents. 'that think, support was substantial evidence we is that there no finding rents, agree. this we loss and to month, five per $160 at under a
The first floor had been rented Supply Company. The contract, Plumbers to the Industrial- Siemers, plaintiff July, in June or expired, according to lease not Siemers, attorney, testified that the lease was who is an conditions renew lease under the wouldn’t his because “we renewed Just ability carry buisness.” He he wanted wanted. his ability is not clear. carry his “the business” what meant July, all June or moved out also testified tenants Siemers north, work, subway approaching from that time the 1930; “Q. Well, what was Franklin. the north side of had reached great They doing A. they doing there? were were work kind of they digging shovels, They had excavating. enormous deal depth wide, going approx- down to a feet a hundred trench forty,or forty-five feet.” imately permit the Board in evidence issued introduced Plaintiffs subway, permit Public Service to and this construct September 23, dated was 1930. On cross-examination Siemers said quite out; that he was “not certain” when the tenants moved that it might August permit If the September, have been September 23, 1930, issued until about the Siemers mistaken reaching July, work the north side of Franklin in June or proceeded unless the defendant had with the construction before *7 permission city, it had from the and there no such claim. While north, subway, Siemers testified that the from the reached approaching July, 1930, the north side of he Franklin June or also testified: “Q. you say, gotten project And at time the had to the north that Yes; everybody. side of Franklin A. Avenue? and well known to Q. Now, then, you knowledge your do know of own when it was that they commenced in front the Franklin excavating property of Q. ? ? they Avenue A. On Franklin Avenue When first commenced 10th, digging say, just A. the I holes there. About June or would Q. side, you time, say, about that on the Twelfth Street 1931. Q. you Yes, right. Now, then, Mr. A. All Siemers? sir. do know Well, in what month in 1931 the there? A. street was closed ’’ that the former had same time. Reminded he the,, trial asked, your property occupied?,” “When did cease had answered, October, 1930,” said, “Approximately “In he was ’’ true.
As the and third floor tenants Siemers testified: “We second rented second floor the third to an individual on each the floor light housekeeping that ran what term rooms there. floor I would Q. Well, you rented the what was the name of the individual whom floor, think, rented third and second floors? A. The second I was -name. B-r-a-c:k-e-n, Bracken. I think it I think was to a Mrs. was Q. rented to? A. The floor was Whom was floor third third it was rented to—I am not of this name. I think Palmer. certain Q. occupants floor Well, long how and third had second ? first company moved before moved out on the floor plumbing out it they out, I know as moved whether was A. slightly don’t to dates when Q. brought slightly before or And haven’t afterwards. ’’ your No, any it ? sir. of records here that show A. would ’ Butts, plaintiffs witness, William real estate business was special years plaintiffs’ property; for 32 and familiar with made of it here in study purpose appraising it “for the court.” He lot, per excluding building, front foot on $1200 valued (32 feet), $38,000. Speaking he Franklin a total of term tax said: “The is on there what we more building anyone purposes, buying It a value for but it payer. has revenue buy ground pretty would it for the value. The was old of, say, well worn out. It added a value I will three thousand dollars ’’ ground. to “What, your opinion, depreciation Then Bntts was asked: assuming or property by rentals, reason the loss of this eighteen period that the tenants moved out, they were out twenty or near this during period iüonths construction Objec- adjacent in Franklin Avenue thereto?” Twelfth Street qualification tion was as to ground “on the that there is no made showing Theré percentage neighborhood. is no rentability in that period, they for a certain were other than month month tenants situation, conclusion, question is now and, in that it for a calls damages.” The framed, and doesn’t to establish measure tend objection overruled, the loss was and the witness answered revenue $5200. would be about construction,” plain period There was no “the evidence that 1! ’ stated, property, eighteen twenty months. As Siemers
tiffs was digging testified that defendant holes” in Twelfth “commenced Street, 10, 1931, he testified: adjacent property, also June ‘‘ Q. it, Siemers, street and sidewalk When Mr. accessible, completed just as and finished project concerned, so far as the surface was as was before Q. Well, A. I mean Approximately June, started? *8 the it was before (the building) just when was it accessible as respect Franklin- project, having in mind with to Twelfth .Street and Avenue, (1932) April time in say there? ... A. I would some myself, the availability being get able my as to the of to ” personally. engineeer, superintendent the George Foster, for con- and the relief “and certain other tractor for the construction of sewer job discussion,” work testified that the work on this that under the the was finished first about of defendant, in
J. PI. a that he had been Farish, witness testified for in the the real handled years; estate for 46 the business vicinity handling property at Twelfth, of and was the Franklin and time the northwest corner at the Franklin and Twelfth of twenty. years; being it for handling was built had been- and ground during that he construction of lost no floor tenants subway; plaintiffs’ building residence, a “had been that had been but above;” rental changed a store the reasonable into and rooms value, month; ground per $100 $125 of floor was about or Q. Well, is it he had no as to the second third floors. and opinion your opinion floors or it not a second and fact in third very my buildings Judging ? A. on the corner to rent are hard I,would they pretty hard to street, say yes, are experience across Q. fact, you any all and third rent. In tenants at second always difficulty keeping in across the street? A. We had floors Q. you, building I ask in a of this there. will tenants Now not, opinion, type whether or in was, that this Siemers
691 moving out, get if it possible a tenant other tenants get making improvements without store ? A. To modernizing improve it.” other tenants in there would have to counsel, urging competency Plaintiffs’ of' evidence to objection (the tenants) people “those made, stated they 1930, they sleep; moved out in because couldn’t couldn’t conduct north of Franklin Avenue. a business on account of the interference why except There is no evidence as to the tenants moved out as to stated, supra. permit floor tenant and To recov first that reason ery theory of rents on the tenants moved out loss operations permit because of carried on would be to recovery evidentiary support. may It have been without but, operations, so, if’ the burden because of such tenants did vacate plaintiffs no substantial evidence was on show. There was 1, submission, loss rents. “An instruc support No. instruction may not invite verdict tion must be sustained the evidence a ” conjecture speculation. rel. Banks v. Hostetter ex based [State Gately al., 155, (2d) 835, l. 838; 344 Mo. c. v. Louis et 125 W. St. Ry. Co., 54, l. F. 332 Mo. 56 S. W. c. v. recovery plaintiffs right waive claim Did their injury building by withdrawing element permanent to the report ? The damage matter when the was before the commissioners “The commissioners have no contained commissioners this: present permanent as to evidence before them by plaintiffs’ building on claim was withdrawn said site counsel.” Ryan Metropolitan support claim, cite v.
To the waiver defendants Cape (Mo. (2d) 190, Lindner v. Life App.), Co. S. W. Ins. Brewery 600. The waiver Co., App. & Ice Mo. Ryan testify competency physician of a in the case concerned also acquired patient, treatment in the information patient. On hospital record of competency concerned objection, admitted without previous trial such evidence had *9 ground subsequent objection on the to at a trial an such ruling was theory of such waiver and overruled on privilege was by discharged a Lindner case was an action appeal. on The sustained contract, remaining period of the employee recover, to support think that these cases We not specified therein. do amount support. case to and we find no contention waiver defendant’s parties to before appear for the in the statute provision There is no sought is' to he landowner whose “A the commissioners. permit to by, pleadings, file suit idly no may sit condemned If he be satisfied make their award. commissioners until the progress go way right accept to his without award, has the he with award, he he not satisfied with the If whatsoever. any expense rel. ex jury.” and demand a exceptions file right to [State has Union Light 312, Electric & Bruce, Power v. 334 Mo. 66 S. W. Co. City (2d) 847, l. The case District of Kansas v. c. of School Phoenix Co., & a Improvement 297 Mo. 249 S. Land .was The l. (249 53): condemnation court “When case. said c. court awarded a by jury trial as sustained ,the by it, report officio, of the commissioners became fundus ’’ though then appointed. cause stood no had ever commissioners it, There is merit, no see as we claim waiver. in Was to lateral justify there evidence submission of loss of support? they might .that The instruction consider told extent, injured any, plaintiffs’ by “the building if to which removal . . lateral such fact Carl support,’’ . was found. “Now, Koerner, witness, then, engineer, an testified: your making respect putting with observations with to connection in a this foundation on this would the location of property, Siemers immediately adjacent it have slope berm and the location of this to any it is K. a small bearing your .Why, A. calculations? O. on large building, why, you would very heavy for a but Q. talking presence have to caissons. I am have bearing on slope, presence slope any this this would such any you whether not would make different calculations property? upon a the Siemers cost of the installation of foundation Q. asking you to just way, A. I leave it I am not No. this would respect to change it. I mean what difference does make with . Q. Q. A. No. your A. None at None all? calculation all. pile or this What I am berm getting at this. In the event this exhibit) present earth, were (indicating there this earth respect the founda- there, determination with what would be trying ? That is what I am you go How far have to tion ? would subway line present get Well, go at. A. would have down to I go larger building. rock, a and then with any it make witness, Pelligreen, Plaintiffs’ Lee testified: “Would difference to you, as a construction engineer, if you going [136] partic- building Franklin Avenue on put up on Twelfth and this slope fact as shown property, that there is ular would A. I any you? K, difference to M, L would that make exhibits building money putting my reputation and want stake wouldn’t foundation. to rock with that going on that without down engineer, testi B.-Kinsey, experienced witness, Defendant’s E. “ any removed Q. way has anything been done there that fied : Has support All ground? A. the lateral any support lateral there. carrying loads is still ground gives Well, you that ? A. I mean explain mean Q. Will what please beyond entirely the soil which made the excavation that would any would building loads that pressure be under reason Q. buildings there. the excavation normal Is imposed it in *10 subway outside of any pressure that by would be exerted the1 erection of a building on property? this Yes, A. sir.” We do not think that it can be fairly said plaintiffs’ evidence is sufficient justify to submission of loss support. of lateral
Should 1, instruction No. as to damages for interference with access, have been restricted as claimed? stated, As says plaintiffs’ No. instruction 1 is bad because it did not restrict damages, for interference with access to to such dam ages', any, if that were different in character to that by all sustained abutting other owners. complaint This is the same as the complaint on the refusal of H, defendant’s instruction which follows:
“The court instructs the believe and find the interference of access to property was different in no char- acter than the interference with access of other property along owners the line of the widened street, plain- tiffs cannot any recover for loss on account interference, of such all such claims are withdrawn from consideration.”
In such situation here plaintiffs complain cannot of obstruction street, in the work, caused that merely prevents along travel get streets to to their property, and this because is common to abutting all Chicago, Burlington owners. v. & Quincy R. [Gorman al., 483, et 509; Co. 255 Mo. City Rude v. The of St. Louis al., 257; et 93 Mo. 6 S. W. Canman et al. City Louis, v. The of St. 92, 11 60; S. Heinrich The City Louis, Mo. v. St. Mo. H, 28 W. enough deny Instruction however, is to broad recovery access, though for interference access, even to plaintiffs’ house, entirely prevented, from the street in front were provided it should abutting such was the Such case'with all other owners. ) case, In supra, (255 law. the Gorman it is said Mo. l. c.491 provision (private taken
“This constitutional shall not be damaged, refers, damaging it etc.) noted, taking will be already personal right. not of As purely we right along He said, everybody personal has the to travel the street. day each or once a and its may exercise it times hundred right public held in trust for nature is the same: the exercise of legislative through agency, alone constituted by the State its him preserve street for his use. With prepare power has to right protected interfere. The authority he no duty this has right property, is the Constitution, pertains it to his because property and the passage between his or free access the street right travel, public go exercise his may upon street, so he cases). grounds (citing return his own he done and when has private jurisdictions have held that While some other courts includes abutting property right appurtenant of access the street places certain other within limits right along to travel street designated, this satisfactorily court has far have not been that thus *11 694 only is
consistently right that the access the adhered -tothe doctrine right property not appurtenant private is included within which the upon city conferred Louis broad-control as has been St. such (cid:127) (Italics ours.) the charter. : abutting right lot owner has the same to the use of -the street
“An large. property public in other owners and the Besides rests right this, lot, is right- the access-to and from his he has appurtenant him. It easement to his real estate special an .is to- It abutting private property on the as much as the lot street. is cannot, use, itself,, destroyed impaired public be or save compensation payment of & St. [Knapp, therefor.” Stout Co. v. Ry. 26, 35, 28 Co., Transfer 126 Mo. l. c. S. W. Louis 152,.it p. “Any. J., 689, or occupation In 20 said: use of a C. sec. destroy as to. or highway or which obstructs the same so street materially of, impair abutting taking of an owner is a easements compensation.” to, entitling injury private or owner complaint no on the refusal of its support Defendant has the. for, plaintiffs’ or instruction No. 1 H, instruction the contention claimed, have been we rule. should restricted as plaintiffs’ 1 a on Was instruction No. comment always jury by proper “It to advise roving or-a commission? may (in ease) they what elements condemnation con instructions edamages estimating does th claimed. Such instruction sider. evidence, give nor thereof part not amount to comment on the jury’s Directing attention to the elements of prominence. undue specific thing damage calling a different attention to facts ex prove disprove or rel. State which tend to such elements.” [State al., 606, 59 Highway Haid et Mo. Commission v. 1060, Plaintiffs’ not 1057, and cases there instruction was l. c. cited.] evidence, it a roving nor commission claimed. on comment these complaints 1, are on instruction No. a retrial made but Other be eliminated. can says plaintiffs’.instruction No. is without
Defendant instruction No. 1. As evidentiary support is in conflict with jury might elements of No. told stated, instruction what determining No. 2 market value. Instruction defined be considered “The, jury court instructs as follows: .the value market market value value, is, means its the fair actual one who to sell but not property as desires does o'f.the value between e necessity bought by no sell, one who is under and is hav buying ’ ’ - challenge not correctness of the it. Defendant does such, says given is a direct con definition but definition- fts' - 1 “in that instruction No. 1 No. tells flict with instruction jury are included” No: 2. consideration factors which not to take into point authority and counsel cite no appreciate We are not able explain. again do Had the 2, set out No. factors repetition. such would have been out, As pointed supra, it proper, seems to be in a condemna case, tion to instruct damage may what elements Of 1939, considered. Sec. R. Stat., 8 Ann. 7158, p. sec. ‘‘ applicable here, provides: Damages hereby in this article are defined depreciation be the in the value of the property that result may, from the construction and operation proposed of the railroad. Plain tiff prove made no effort before;-and in market difference value after the constructed, says depreciation. statute According to evidence, defendant’s market value *12 property was by subway. enhanced value construction of the complains Defendant the refusal E its instruction ‘‘ follows: The court jury instructs the testimony when' possession party aof produced siiit not explanation and no introducing made for not it, jury may presume that such testi mony, if produced, would party.,” be unfavorable This to such in struction was plaintiff aimed at says: Siemers. In -the brief defendant ‘‘ amount, Mr. Siemers testified as to rentals received there was a five lease on the agreements first floor and two signs. He was indefinite first, dates on which second and as third became vacant. produce floors He not did the lease make any explanation failing produce lease, produce and did not showing records what collected, rents were or make explanation produce failure them. might In these circumstances presume produced that had he this it have contra evidence would testimony, dicted-his oral entitled to have the ” jury so instructed. - It necessary is not to specifically assignment- rule the oii refusal n E, might defendant’s instruction say birt wé' that if cause is retried the written lease and records, available, be produced should or their explained. absence assignment
The on the admission of evidence has reference to plaintiffs’, the evidence of witness Butts as to what the rent would period have amounted to over the appears, or months. As supra, Butts testified the rent period over such would have $5200. amounted We ruled, supra, there was no substantial rents, and, as to effect, loss there this ruled assignment. Complaint is made on the exclusion evidence of wit Loida., Kinsey E. nesses E. Joseph L. prove and. Defendant offered to by Kinsey “that widening by city had the paving street been done tax against bill this twelve would between and fifteen appears, hundred dollars.” As the measure of was the difference market before and value after -the con The only struction. market value by could be affected what is and With- properly refused. might have The offer was what teen. the offer say think it into detail we is sufficient going out the same reason. properly Loida was refused for witness alleged assignment ex- situation, do not rule the we In judgment and the cause verdict. The should reversed cessive- Hyde Dalton, GG., ordered. concur. remanded and sois Bradley, C., adopted foregoing opinion PER CURIAM: The judges concur. opinion the court. All the May Department Plaintiff-Appellant, v. Stores Com Mabel Teel, Dewey Defendants-Re Corporation, and C. Zytowski, pany, spondents. May Department Teel, Plaintiff-Respondent, v. Stores Com
Mabel Dewey Corporation, C. pany, Zytowski, Defendants-A ppellants 74. . 155 July One, Division 1941. Rehearing Denied, October