Condemnation for state highway purposes of land owned by defendant Cemetery Association. The jury found defendant’s damages to be $90,000 while the amount claimed by defendant was over $950,000.00, which difference gives this court jurisdiction.
Defendant operates a garden-type cemetery for profit. It owns 220 acres and has been selling grave spaces since 1922. 180 acres were included in its plan of development with 40 acres used for other purposes. At the time of the trial all the grave spaces sold were on the south 80 acres. The north 100 acres through which the highway right of way was condemned had been platted but not yet used for burials. The following facts were stipulated: Between the opening of the cemetery in 1922 and the date of taking for the highway in 1963 the average number of grave spaces sold per year was 1300; the average gross sales price per space received was $150.00 and the average net profit per space was $90.00 after deducting all expenses and provision for perpetual care; before the taking there were 69,515 unsold available grave spaces which would require 53 years to sell at the rate of 1300 per year; the highway took 27.3 acres and required 150 feet setback from the right-of-way line which took 25,912 available grave spaces, leaving 43,603 spaces which would require 34 years to sell at 1300 per year; and that the highest and best use of the property taken was for cemetery purposes.
Defendant claims that State of Missouri ex rel. State Highway Commission of Missouri v. Barbeau, Mo.Sup.,
“(1) Determine the number of burial lots or grave sites taken;
“(2) Determine the unit value, which
(a) The average sales price per lot or site in the adjoining used section of the cemetery, less
(b) The reasonable cost of development, sales, maintenance, administration, perpetual care, and any other expenses affecting its value;
“(3) Multiply the number of lots or sites taken by the unit value determined; and
“(4) Discount the total to present worth for the deferred realization over the selling period.”
Defendant further says since these facts involved, as well as the selling period of the lots, were stipulated, “the sole question of fact remaining for jury determination was the proper discount factor.” Defendant’s computations on different discount factors was based on interest rates it received on the investments of its permanent care fund and on rates paid by savings and loan associations. The State claimed a ten per cent rate should be used on the basis of risk of operation of a cemetery. The State’s computation was $38,376.00 based on the theory that defendant’s damage would not actually occur for 34 years from the date of taking (because enough spaces were left to last 34 years selling at the rate of 1300 per year).
Defendant’s computation was as follows:
“Before Value
Number of Lots LQ i-H 1-0 Os VO
Unit Value O ON, ⅞⅝|
Value of Total Lots Before $6,256,350.00
After Value
Number of Lots Remaining 43,603
Unit Value $90
Value of Lots After 3,924,270.00
Value of Land Taken $2,332,080,00
Discounted on 3% Basis $1,150,425.00 Damages
Discounted on 4% Basis 954,057.00 Damages
Discounted on 10% Basis 433,388.00 Damages”
Defendant assumes State ex rel. State Highway Commission v. Barbeau, supra, requires submission of this case on the capitalization formula used in that case. However, that case was tried by the court without a jury so no instructions were involved. We pointed out (
However, defendant’s claims of error are that it was error to give Instructions 3 (M.A.I. 9.02) and 4 (M.A.I. 15.01), requiring the jury to use the usual fair market value tests and standards. Defendant cites Graceland Park Cemetery Co. v. City of Omaha,
Instruction 3 herein required the jury to “award defendant such sum as you believe was the difference between the fair market value of defendant’s whole property immediately before the taking on June 1, 1963, and the value of defendant’s remaining property immediately after such taking, which difference in value is the direct result of the taking and of the uses which plaintiff has the right to make of the property taken. (M.A.I. 9.02)” Instruction 4 (M.A.I. 15.01) stated: “The term ‘fair market value’ means the price which the property in question would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but who is not compelled to do so.”
These instructions do not fit this case. There was no evidence on which to base the test stated in Instruction 4 and that test was the basis for Instruction 3. In State v. Lincoln Memory Gardens, Inc., supra (
While in theory market value is the test (the hypothetical measure being what
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another cemetery would pay if there was one willing to buy, see 4 Nichols 219) the usual means of determining market value are lacking and it is necessary to resort to some other method. It is said in the Buxeda case the real problem (
The judgment is reversed and the cause remanded.
PER CURIAM:
The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court.