685 S.W.2d 888 | Mo. Ct. App. | 1984
The appeal consolidates two separate exceptions dismissed by the trial court for failure of the condemnor to prosecute with diligence. They involve two tracts among the numerous acquired by the Missouri Highway and Transportation Commission
The evidence to the trial court on the motion to dismiss replicated the proof made to the McCann court. The landowners once again presented real estate appraiser Johnson to describe the precipitous drop in the land values around the contiguous Kansas City International Airport since the tracts were condemned some seven to nine years before, and the resultant difficulty after such a lapse to locate comparable tracts to establish the value of those taken. The condemnor once again presented engineer Satterlee to explain the reasons why the original highway plan was no longer valid, and so required redesign and the takings, reappraisal. The witness attributed the necessity, and hence the delay in the prosecution of the exceptions, as in McCann, to traffic projections since permanently altered, but did not as in McCann, to the neglect of Kansas City to install access roads and other appurtenances as agreed with the Highway Commission. The witness expressly acknowledged [what in McCann was only intimated] that the tracts involved — here, the Colom and New-by parcels — were not affected by the redesign.
The Highway Commission on appeal asserts, as in McCann, that (1) as the agent of the sovereign, it is immune from termination of its rights due to delay or passage of time, and hence from judgment of dismissal, and (2) that the delay in the prosecution of the exceptions was, in any case, excusable.
The points on appeal, the arguments, and the literal briefs are duplicates of the assertions to us in McCann and ruled adversely to the condemnor. As in McCann, the record shows a self-motivated course of action by the Highway Commission to accomplish a de facto amendment of the condemnation petitions by redesign of the project and reappraisal of the tracts affected, all without notice or other formality of procedure, and then tendered as the excuse for the delay in the prosecutions. As in McCann, also, the record shows landowners without part in the delay — either by motions, continuances, stipulations, or any other initiative.
Our opinion in McCann, and our reasons, apply with equal validity to adjudicate this appeal against the Highway Commission.
The judgments of dismissal are affirmed.
All concur.