author: CLAY, Commissioner.

text:
    James H. MARCUM et al., Appellants, v. Woodrow CANTRELL et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 2, 1966.
    Lowell T. Hughes, Ashland, for appellants.
    Morton C. Nickell, Ashland, for appellees.
   CLAY, Commissioner.

This is a suit to quiet title to a 10-foot wide strip of land which constitutes a pass-way from appellees’ home to a street in a subdivision. The Chancellor adjudged ap-pellees to be the owners and enjoined appellants from obstructing it. Several questions are raised on appeal.

In 1961, one Waggoner conveyed to ap-pellees a triangular lot. After the execution of the contract of sale and prior to the deed, a 10-foot passway was built from the house on the lot to a street. The courses and distances description in the contract encompassed the passway. The metes and bounds description in the deed cut off a portion of this passway area, but the description referred to the “east” side of the pass-way, which would include all of it within the bounds of the property conveyed.

Subsequently Waggoner sold adjoining property to appellants and this deed referred to the “southeast” boundary of the passway (which for practical purposes was the same as the “east” boundary in appel-lees’ deed). However, strictly following the courses and distances description in the last deed, appellants’ boundary overlapped an integral part of the passway.

Appellants put a fence across the passway at a point they considered their boundary line. Thereafter appellees sued their original grantor, Waggoner. Following a summary judgment in that suit, appellants and Waggoner changed one of the boundary lines, apparently in recognition of appellees’ claim to the passway. However, this change did not adequately correct the discrepancies between the courses and distances descriptions and the passway boundary in the deeds. (It really compounded the discrepancies.)

Thereafter appellees sued appellants, and that is the suit we have before us.

It is first contended that the matter in controversy was res judicata because the same issue was litigated in the suit by ap-pellees against- Waggoner. That was a suit for breach of warranty based on the claim that Waggoner had sold to appellants a portion of the land previously conveyed to appellees. The judgment entered in that case (according to appellants’ own statement in their brief) had “the effect of holding that Waggoner did not sell to Marcum (appellants) the disputed property”. If anything, that judgment is more favorable to appellees than appellants. However, it. did not decide the issue here involved, which is the location of the passway boundary line between appellants’ and appellees’ tracts.

The judgment in that case simply recognized that the boundary lines in the two deeds (whatever they were) did not overlap. The precise location of the passway boundary line (on the ground) was not litigated or determined. The judgment in the former case, and in this case, are completely consistent. We find no basis for the application of the res judicata rule.

Appellants next contend the court erroneously failed to find they were bona fide purchasers without notice. The evidence is clear that appellants had notice of this passway when they purchased their property, but in any event, this issue has no bearing on the decision ultimately reached by the Chancellor.

The basic finding of the Chancellor was that the references in the deeds to the pass-way boundary line were references to a monument, and it prevailed over the courses and distances descriptions where they were inconsistent. Appellants contend that the descriptions in the deeds platted perfectly without overlapping and therefore the Chancellor could not go beyond those descriptions. The difficulty with this position is that while appellants’ courses and distances descriptions were originally accurate, the references to the passway boundary created a latent ambiguity in the deeds. Therefore, that discrepancy must have been resolved, and the Chancellor did so by utilizing the passway boundary line.

It is said in 12 Am.Jur.2d, Boundaries, section 10 (page 554):

“Boundary lines may be indicated by courses and distances as well as by monuments, or by both monuments and courses and distances. In the event of an inconsistency between the monuments and the courses and distances described, the general rule is that resort is to be had to the monuments whether natural or artificial, and then to courses and distances * * *

We have no hesitancy in saying that the passway which existed in this case constituted a monument, and was of controlling importance. As said in Schultz v. Maxey, 307 Ky. 325, 210 S.W.2d 950, 951:

“It is obvious from the above description and the plat of the subdivision that the southeastern boundary of appellants’ property is the northern edge of Winding Way Avenue. If such roadway actually existed, it is well settled that the courses and distances in appellants’ deed must yield to it as a known and clearly defined physical object.”

Since the passway m dispute actually existed when the deeds were executed, it constituted a prevailing monument.

It is next contended the Chancellor erred when he intimated in his written opinion that appellants’ deed was champertous to the extent appellants attempted to purchase the land occupied and used by appel-lees as a pass way. We are inclined to accept the court’s view on this question, but it is unnecessary to pass upon it because it was not the basis of the Chancellor’s decision.

What we have said above also answers appellants’ contention that the court erroneously indicated that the disputed property constituted an appurtenance. Whether it was or not, the decision did not rest on that finding.

Appellants’ final contention is that they were entitled to damages. This would be so only if their title was slandered, which the Chancellor held, and we are confirming, was not the case.

The judgment is affirmed.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    William Thomas BULLENS and Donald Ray Gatliff, Appellants, v. Emma MULLINS, Administratrix of the Estate of David Mullins, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Dec. 2, 1966.
    George T. Ross, Richmond, for appellants.
    Charles R. Coy, Chenault, Coy & Sword, Richmond, for appellee.
   CULLEN, Commissioner.

Pursuant to the opinion of this court on a former appeal, in Mullins’ Administratrix v. Bullens, Ky., 383 S.W.2d 130, the automobile negligence suit of David Mullins’ Administratrix against William Thomas Bullens and Donald Ray Gatliff was retried solely on the issues of last clear chance and amount of damages. The jury found the defendants liable and fixed the damages at $21,172. Judgment was entered accordingly. The defendants have appealed, asserting two claims of error.

The first claim is that the last clear chance instruction given by the trial court was erroneous. The instruction directed the jury to find for the defendants unless the jury made a last clear chance finding (the elements of which were appropriately set forth in the instruction). The defendants had offered an instruction substantially the same in form except that it commenced with a statement informing the jury that the plaintiff was guilty of contributory negligence as a matter of law. The argument here is that the omission of the latter statement from the instruction given by the court rendered that instruction erroneous. No authority is cited to support the argument, and we have found none. We think it was sufficient to tell the jury that in the absence of a last clear chance finding they were required to find for the defendants, without telling them the legal reason why.

The second claim is, in substance, that the holding of this court on the former appeal was wrong and should not apply as the law of the case. The last clear chance question was given thorough consideration on the first appeal and was the subject of extensive debate. The court adheres to the answer there reached.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    David BILGER, Petitioner, v. Hon. Cass R. WALDEN, Judge, Barren Circuit Court, Glasgow, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 9, 1966.
    David Bilger, pro se.
    Cass R. Walden, Judge, Barren Circuit Court, Glasgow, for respondent.
   WILLIAMS, Judge.

This is an original proceeding in this court to compel the Honorable Cass R. Walden, Judge of the Barren Circuit Court, to dismiss a charge of grand larcency that has been pending in the Barren Circuit Court since November 1964.

Petitioner avers his right to a speedy trial has been denied. The charge has been set for trial three times. In each instance the Commonwealth was unable to prosecute because of the unavailability of witnesses. The respondent has advised the Commonwealth that the case will be set for trial at the January 1967 term, and if the Commonwealth is unable to prosecute the case at that time because of unavailable witnesses the charge will be dismissed. Under the facts we are unable to conclude the respondent has not granted the petitioner a speedy trial.

The petitioner is asking this court to compel the circuit court to dismiss the charge. Mandamus will not lie to control the discretion of the circuit court. It only compels the court to exercise its discretion. May v. Conley, Judge, Ky., 408 S.W.2d 431 decided November 11, 1966; Farrow v. Downing, Judge, Ky., 374 S.W.2d 480 (1964); Kaufman v. Humphrey, Judge, Ky., 329 S.W.2d 575 (1959); Hargis v. Swope, Judge, 272 Ky. 257, 114 S.W.2d 75 (1938).

The order of mandamus is denied.


text:
    William Russell VANDERPOOL et al., Appellants, v. Neeley RAKES, Appellee.
    Court of Appeals of Kentucky.
    Dec. 2, 1966.
    Joe G. Davis, Wesley Gilmer, Jr., Dan-ville, for appellants.
    James F. Clay, Sr., Danville, for appel-lee.
   CULLEN, Commissioner.

The appeal is from a judgment awarding the appellee $8,392.30 for personal injuries and property damages sustained in a collision between the appellee’s automobile and the appellants’ truck. The appellants’ contentions are that the appellee should have been held contributorily negligent as a matter of law, and that the amount of $8,000 awarded by the jury for pain and suffering is excessive.

The collision occurred in a sharp curve, in late afternoon on a day in December, with part of the road being covered with snow. Each driver testified that the other was on the wrong side of the road. The truck driver said that the appellee slid into him, whereas the appellee said that the truck from the time he first saw it was partly across the center line.

The appellants argue that the appellee should have been held contributorily negligent as a matter of law because he failed to keep a proper lookout; that if the truck was across the center line the appellee should have seen it in time to take steps to avoid a collision. The argument is built around the testimony of the appellee that he did not see the truck until he was within some 40 feet of it, in the face of testimony of the county road engineer that each driver could have seen the other when 150 feet apart. (We note that the truck driver said he did not see the appellee’s car until within 80 feet of it.)

The evidence was that each vehicle was traveling around 35 miles per hour; thus they were closing the distance between them at the rate of a little over 100 feet per second. This means that had the ap-pellee seen the truck when 150 feet from it (as the appellants say he should have with a proper lookout), he would have had around 1½ seconds in which to become aware that the truck was committed to a wrong-side-of-the-road course and to take evasive action. We are not prepared to say that as a matter of law (a matter on which reasonable minds could not differ) the argued deficiency in the appellee’s performance of his lookout duty was a substantial contributory factor in the accident. Cf. Dixie Ohio Express Co. v. Eagle Express Co., Ky., 346 S.W.2d 30.

It is argued that the award of $8,000 for pain and suffering is excessive because there was no proof of permanent injury. At the time of the trial, 13 months after the accident, the appellee was still wearing a back brace which his doctor had prescribed for him several months previously. The doctor testified that the appellee was unable at the time of the trial to do any sort of bending or strenuous work, and that it might be “six months to a year before we would allow him to attempt any strenuous physical exercise.” The doctor said he could not say or predict with any degree of certainty whether there would be “permanent disability.”

Without regard to future, long-term disability the evidence showed a minimum period of disability from the day of the accident of almost two years. This may be considered a sufficiently long period to show that the injuries are genuine and more than superficial, thus reasonably calculated to produce pain and suffering.

The appellee’s doctor found that the ap-pellee had compressions of four vertabrae, which condition was consistent with the history of the accident and compatible with the complaints of constant pain made by the appellee. The wearing of the brace and the limitation of bending movements naturally would be calculated to produce some pain. The appellee’s complaints of continued discomfort at night and nausea from the pain were entitled to some weight.

It is our conclusion that the award of damages is supported by the evidence and is not so high as to indicate passion. Cf. Gregorich v. Jones, Ky., 386 S.W.2d 955; Ballard v. King, Ky., 373 S.W.2d 591; Hedges v. Neace, Ky., 307 S.W.2d 564.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    Oliver P. GANOTE et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 2, 1966.
    George B. Ryan, Louisville, for appellants.
    Robert Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Raleigh Jones, Dist. Atty., Clay A. Copeland, Louisville, for appellee.
   MILLIKEN, Judge.

This is an appeal from a summary judgment for the Department of Highways which the appellants, property owners, contend should not have been rendered.

The Department sought to construct a deceleration lane (also called a right-turn lane) within the pre-existing right of way limits of Eastern Parkway, a public highway in Louisville, at its intersection with Poplar Level Road. In the construction of this turning lane on Eastern Parkway, the Commonwealth did not seek to acquire any additional permanent right of way from the appellants, or from any of the other property owners on the same side of the street. The pre-existing limits of Eastern Parkway were such that the construction of the new turning lane and the new curbs, gutters, and sidewalk could be accomplished entirely within its existing boundaries. Although this construction did not raise the grade of Eastern Parkway at its center line in front of the Ganóte property, it did cause the grade of the south right of way line, where it adjoins the Ganóte property, to be raised approximately fifteen to eighteen inches which extended the driveway to the garage about three feet.

Actually, the construction of the new curb caused this slight increase in grade. The old curb was the “valley gutter” type and the new curb is the more usual “lip” type curb with a slightly raised “lip” on the backside of the curb next to the right of way line. Since the appellants’ lot slopes upward (except for the garage entrance) from the right of way line, this increase in the height of the backside of the curb made it necessary to fill the area between the new curb and the right of way line so that all drainage would flow from the Ga-nóte property toward the curb and gutter and not accumulate at the foot of the slope in front of the Ganóte property. Because the Ganóte property slopes steeply upward from the right of way line, the construction of the fifteen to eighteen inch fill did not result in any other fill in front of their property; the increased grade merely spilled into the slope on the Ganóte property. Only the garage entrance, which slopes downward from the street, had any increase in grade from its previous condition. The key question is whether the fifteen to eighteen inch increase in the grade of the appellants’ garage driveway constitutes the taking of a vested property right for which compensation must be paid.

The Department admits that the Ga-ñotes probably have suffered some inconvenience from having the deceleration strip, curb and sidewalk constructed nearer to their property line and also from having the grade of the driveway extended, but the Department insists that it clearly was within its rights in using its right of way to the fullest and altering or extending the grade of the Gañotes’ driveway. We think it obvious that the utilization of the Department’s unused or unpaved right of way in front of the Ganóte property for a deceleration lane was something the Department was entitled to do without paying compensation to an adjoining owner. This took nothing from the appellants for which they were entitled to be compensated. We think the slight raising of the grade of the driveway is in the same category. 26 Am.Jur.2d, Eminent Domain, Sections 228 and 229.

The Department of Highways is authorized to acquire rights of way in cities and to defray the costs of construction, reconstruction, maintenance or repair of a city street designated by the Department as part of the State Primary Road System, and the cities are authorized to deed to the Commonwealth any right of way owned by the cities which is so designated. KRS 177.021. When such power apparently has been exercised, as in the case at bar, the state is liable to adjoining or abutting property owners for any of their property taken. Const., Section 13. Here, the state has not “taken” the landowners’ property, it has merely exercised a privilege it had — to utilize the rest of its right of way for a deceleration lane.

The summary judgment was properly entered and the judgment is affirmed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, for the Use & Benefit of the UNIVERSITY OF KENTUCKY, Appellant, v. Claude L. COFFEY et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 2, 1966.

      R. B. Bertram, Bertram & Bertram, Monticello, James A. Hicks, Hicks & Lovelace, Albany, for appellant.
    Charles C. Adams, Norma B. Adams, Adams & Adams, Somerset, Bruce H. Phillips, Monticello, for appellees.
   DAVIS, Commissioner.

Pursuant to KRS 164.260 the University of Kentucky prosecuted this condemnation action to acquire a tract of land from ap-pellees. The record reflects that the tract contains about 38 acres, and all of it is being taken. The property is situated in the Union Ridge section of Wayne County, west of Lake Cumberland. County court commissioners reported $3,250 as the value of the property; a jury in county court made an award of $3,250. Upon appeal to the circuit court a jury returned its verdict fixing $6,000 as the award. Appellant attacks the judgment asserting that the $6,000 verdict is excessive and unsupported by the evidence.

Appraisal witnesses for appellees placed a value of $300 per acre on the tract — a total of $11,400 for the 38 acres. This evaluation was rested upon the view of the witnesses that the land possessed substantial potential for lake-site lots.

On the other side of the coin was evidence that appellees bought the tract on November 19, 1962, for $2,500; that it had then contained a tobacco base and a corn base, both of which they had been able to have transferred to other property nearby. It was also shown that since the 1962 purchase the appellees had cut about 500 cedar posts from the tract, and these posts were valued at about $250. For 1963 and 1964 the appellees listed the property for taxes at a total figure of $500. Witnesses for the appellant placed estimates of the tract’s value between $2,500 and $3,500.

One of the critical questions in the evaluation of appellees’ property is the matter of feasible access from the tract to nearby Lake Cumberland. The appraisal witnesses for the appellees admitted that the land would have relatively slight value without reasonable access to the lake. It appears that the tract involved does not abut upon the lake, but that property owned by the United States lies between it and the lake. The appellant has leased the land lying between appellees’ property and the lake, and it is indicated of record that no access to the lake can be expected across this land.

On the other hand, there is evidence in behalf of appellees that access to the lake is to be had over three separate roadways, all of which are in a state of disrepair. The record warrants the inference that the roadways are substantially abandoned by whatever public authority may have once maintained them. For example, one of the witnesses for appellees gave this evidence respecting the roadway:

“Q. Did you go up and down this road to the lake on March, this year?
A. No sir, I didn’t.
Q. I will ask you if the road isn’t impassable ?
A. I don’t know about that. I didn’t go to the Lake. I guess it is though.
Q. How much would that land be worth for subdivision for camp sites if you couldn’t get across the government land to the water?
A. If you couldn’t get across the government line (sic) and had no way to get down to it, it wouldn’t be worth much. You can’t see the lake, much of it.”

In this connection, one of the appellees testified on cross-examination:

“Q. Why are you asking the jury to give you more than you say it is worth?
A. They are going to close up this road and that is going to stop us up.
Q. The road has been closed a while, hasn’t it?
A. You can go to the Lake.
Q. The road to the Lake was closed when you bought this in 1962, wasn’t it?
A. You can get over the hill but hard to get back up.
Q. The road was closed when you bought it in 1962, wasn’t it ?
A. What do you mean, closed?”

The appellee explained that he understood such a road could not be closed, although it is apparent from his evidence that the road was not a satisfactory one even when he bought the property.

We think the situation respecting the in-accessability of the property to Lake Cumberland substantially foreclosed the use of the property as lake-site subdivision, even as of the time it was purchased by appel-lees. There is no evidence to support the verdict of $6,000 if the tract was not adaptable for subdivision. Upon the authority of Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, Commonwealth, Dept. of Highways v. Riley, Ky., 388 S.W.2d 128, and Commonwealth, Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922, the verdict of $6,000 is palpably excessive and unsupported by evidence of probative value.

The judgment is reversed for proceedings consistent with the opinion.


author: MOORE, Justice.

text:
    June B. WALLACE et al., Appellants, v. Wilton J. DANIEL et al., Appellees. R. W. WADDELL et al., Appellants, v. C. Aubrey SMITH, Jr., Trustee et al., Appellees.
    Nos. 230, 231.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 3, 1966.
    Rehearing Denied Dec. 8, 1966.

      John Glass, Glass & Glass, Tyler, for appellants.
    Charles Potter, Spruiell, Lowry, Potter, Lasater & Guinn, Troy Smith, Tyler, for appellees.
   MOORE, Justice.

This suit involves the validity of two amendatory ordinances enacted by the City of Tyler changing the zone classification on a 41-acre tract of land from zone R-1a Residential to C-4 Planned Commercial.

The controversy arose in this manner. Appellees, on April 14, 1965, filed an application with the City Commission requesting a change in the zone classification on the 41-acre tract of land from zone R-la Res-dential to C-l Commercial District. The application was referred to the Plan Commission and a date was set for the hearing. Notice was mailed to appellants, ■ the adjoining landowners, notifying them of the date of the hearing. After a hearing before the Plan Commission, at which appellants appeared either in person or by their attorney, the Plan Commission recommended that the zone classification be changed to zone C-4 Planned Commercial District, rather than zone C-l Local Commercial District as applied for by the appellees. The matter was then referred to the City Commission. A date was set for a public hearing and notice was issued stating that a hearing was to be held on the application for a change from zone R-la to zone C-l. The notice further stated, however, that the Plan Commission had recommended a change to zone C-4. All appellants appeared at the hearing either in person or by their attorney and protested any change.At the conclusion of the hearing, the City Commission enacted the first amendatory ordinance changing the zone from R-la to C-4 rather than to zone C-l as applied for by appellees. The date of this ordinance was June 4, 1965.

On June 9, 1965, within five days after the above and foregoing ordinance was enacted, appellants (plaintifffs) who were landowners affected by the ordinance, instituted suit in the District Court, styled June B. Wallace, et al. vs. Wilton J. Daniel, et al., Cause No. 65-441, seeking a declaratory judgment declaring the ordinance void and a permanent injunction to restrain enforcement thereof.

On June 11, 1965, within two days after the suit was filed, the appellees filed another application with the City Commission requesting that the zone classification on the 41 acres in question be changed from R-la to C-4. The application was referred to the City Plan Commission. A date was set for the hearing and notices were mailed to each of the appellants. Appellants do not deny notice of the hearing or that they each appeared and contested the application either in person or by their attorney. During the process of the hearing, appellees offered in evidence certain plans which they had prepared showing their planned use and development of the 41 acres as a shopping center. After a rather extensive hearing and discussion of the matter, the Plan Commission voted to approve the plan for use and development and change the zone to C-4. The matter was then submitted to the City Commission. A date was set for the hearing and notice thereof was duly issued. Appellants do not deny notice and admit that each of them appeared at the hearing either in person or by their attorney and protested the application. At the conclusion of the hearing, the City Commission enacted the second amenda-tory ordinance, again changing the zone classification from R-la to C-4 as requested by the second application. The date of this ordinance was August 9, 1965.

Then, on August 20, 1965, appellants as plaintiffs, filed their second suit styled R. W. Waddell, et al. vs. C. Aubrey Smith, Jr., Trustee, et al., Cause No. 65-662, challenging the validity of the second ordinance, likewise seeking a declaratory judgment and injunctive relief.

The appellees answered each of the suits with a general denial.

Upon agreement of the parties the two causes were jointly tried before the court without a jury. The trial court rendered judgment for the appellees, finding each of the amendatory ordinances to be legally enacted and valid, and denied appellants’ application for injunctive relief. Upon the request of appellants, the trial court filed extensive findings of fact and conclusions of law. Motions' for a new trial were overruled in each of the two causes and appellants perfected their appeal from each of said judgments. By agreement of the parties, and with permission of this court, the two causes were consolidated for the purpose of appeal.

Appellants have brought forward 49 assignments of error. The first ten points constitute an attack upon the validity of the ordinances, while the remaining 39 points attack the findings of fact and conclusions of law.

In their second point of error appellants contend that the trial court erred in refusing to declare void the first amendatory ordinance of June 4th because (1) there was no plan for use and development presented to the Plan Commission and (2) the City Commission never approved a plan for use and development for the C-4 classification as required by Section XII of the basic zoning ordinance. We sustain this contention.

It is undisputed that the City of Tyler is a home-rule municipal corporation with a valid basic zoning ordinance, enacted in accordance with the City Zoning Law, Acts 1927, 40th Leg., page 424, Ch. 283, codified as Articles 1011a through 1011j, Vernon’s Ann.Tex.Civ.St. Section XXIII of the city’s basic zoning ordinance provides that the same may be amended from time to time by the City Commission, but that any proposed amendments, supplements or changes shall first be submitted to the City Plan Commission for their recommendation and report.

Section XII sets forth a special procedure to be followed in applications requesting a change in zone to a C-4 Planned Commercial District, and provides in part as follows :

“1. In order to provide for modern retail shopping facilities of integrated design in appropriate locations to serve residential neighborhoods, the C-4 Planned Commercial District is hereby established. Such district shall be laid out and developed as provided below so as to accomplish such purpose.
“2. The owner or owners of any tract of land comprising an area of not less than three acres may submit to the City Commission a plan for the use and development of all or part of such tract for the purposes of and meeting the requirements set forth in this Section, * * *. The plan shall be referred to the City Plan Commission for study and report and for public hearing. Notice and publication of such public hearing shall conform to the procedure for hearings on amendments prescribed in Section XXIII. * * * If the Plan Commission approves the plans, they shall then be submitted to the City Commission for their consideration and action. The Plan Commission’s approval and recommendations shall be accompanied by a report stating the reasons for approval and that the application meets the requirements of the C-4 Planned Commercial District as set forth in this Section.”

When appellees filed their first application for a change to C-l, they did not file a plan for use and development because the basic ordinance did not require such a plan in connection with an application for a C-l classification. Appellants did, however, attach, a plat showing that a shopping center was intended. The plat was not in detail and some of the adjoining landowners objected to the construction of a shopping center because they had not been furnished with sufficient information of the proposed use. The Plan Commission suggested that a C-4 classification might be more appropriate than the C-l classification. Appel-lees agreed to accept the change and the Plan Commission then approved a change to C-4, rather than C-l, as requested by ap-pellees.

The basic zoning ordinance specifically requires the Plan Commission to hold a public hearing upon the plan for use and development prior to granting a change to zone C-4. While it is without dispute that a public hearing was held, it does not appear that a hearing was held with respect to the plan for use and development because no such plan was before the Commission. As a result the interested landowners were denied an opportunity to be heard upon the proposed plan for use and development as provided for in Section XII of the basic ordinance.

It appears to us that the provisions of Section XII requiring a plan for use and development contemplates something more than a mere plat.

Moreover, Section XII provides for the approval of the plan by the Plan Commission prior to reporting their action to the City Commission. Their final report fails to show that a plan for use and development was ever presented, nor does it show any such plan was approved or that the application met the requirements of the. C-4 classification. Furthermore, when the first ordinance was finally enacted by the City Commission, it was enacted “subject to the City Commission’s approval of final plans.” It thus appears that the City Commission recognized the fact that the plat was not sufficient and that the application was before them without a plan for use and development. Without question, the procedural requirements laid down as the basic zoning ordinance were not followed.

The Legislature having provided by Article 1011b, supra, that cities adopting a Comprehensive Zoning Ordinance must provide a procedure for the amendment of such ordinance, by implication directs that the city will follow the procedure it adopts. Smart v. Lloyd (Tex.Civ.App.) 370 S.W.2d 245.

Since the procedure adopted was not followed, we hold that the first ordinance enacted by the city on June 4, 1965, changing the zoning classification to C-4, without first having afforded appellants a hearing upon the proposed use and development and without approval of such plan by the Commission, is a nullity and of no effect.

By points 3 and 4 appellants assert that the second amendatory ordinance is invalid because at the time of its enactment the City Commission did not have before it any lawfully made and adopted report of the Plan Commission recommending a change to C-4. Appellants contend that the Plan Commission’s report is invalid because it was not prepared during the meeting with all members present.

As pointed out above, Section XII, paragraph 2, provides that if the Plan Commission approves the plan for use and development, such plan shall be submitted to the City Commission for their consideration and action. It further provides that the Plan Commission shall submit a report stating the reasons for their approval and also stating that the application meets the requirements of the C-4 Planned Commercial District.

In paragraph 14 of the findings of fact, the trial court found as follows:

“Before the members of the City Plan Commission retired, and while they were still in fact meeting as a Plan Commission, on July 9, 1965, they dictated to the City Clerk, who was then acting in her official capacity, a report to the City Commission stating the reasons for their approval of the rezoning and the plan for use and development of the rezoned area. This report was later signed by the Chairman of the City Plan Commission and placed in the official file kept for that purpose by the City Clerk for consideration by the City Commission at the meeting hereafter referred to.”

While the testimony of the City Clerk is somewhat vague as to whether the report was dictated during the meeting or immediately thereafter while the members were still present, it is undisputed that a hearing was held and that a majority of the members voted for the change. The report, signed by its Chairman, appears in the record before us. It shows that the plan for use and development was approved; that the application complied with the requirements of the C-4 Planned Commercial District; and by a majority vote, the Plan Commission recommended the change. The basic ordinance makes no provision as to when or by whom the report shall be prepared, nor does it provide that the same shall be signed by each member.

Since appellants do not attack the accuracy of the report and the basic zoning ordinances do not provide for the method of preparation thereof, the question of when or by whom same was prepared would not appear to be material to the inquiry and therefore the action of the trial court in admitting the report in evidence and refusing to strike the same does not reflect error.

Appellants next contend that the court erred in refusing to declare the second amendatory ordinance void because the second application was filed within six months after the first and was therefore in violation of paragraph 4 of Section XXIII which reads as follows:

“ * * * A party or a successor in title shall not initiate action for a zoning amendment affecting the same land for the same zoning classification or a less restricted classification more than once every six months.” (Emphasis supplied).

We have determined that this contention must be overruled. A reading of the basic ordinance providing for the C-l classification as compared with the C-4 classification clearly shows that the use of the property under the C-4 classification is more restrictive than that provided for under the C-l classification. Under the C-l classification, it would be possible for the owners to build a shopping center containing, among others, any or all of the following business establishments: repair shops, filling stations, laundry, bakery, beauty parlor, barber shop, bank, dry cleaning establishments, office buildings, etc. The only restrictions on such use provided for under the basic ordinance are the requirements for off street parking, the limitation on the size and number of outdoor signs and the height of the buildings. The C-4 classification, on the other hand, relates only to shopping centers and requires the applicant to present his plan for use and development. Such plan must be approved by the City prior to granting a change to C-4. It provides that the entire operation must be of a single ownership or under single management; that the premises may be used only for the retail sale of merchandise, services and recreational, except for outdoor theaters. The shopping center is required to be designed as a whole, unified and a single project and if built in stages must conform to the approved plan. The buildings cannot exceed 25% of the entire lot area of the project and must be set back 30 feet from the street; all streets and sidewalks must be paved or hardsurfaced and meet the specifications of the Plan Commission. There must be one parking space for each 100 square feet of floor area in the buildings; all areas not used for the buildings and parking lot must be landscaped with grass, trees, shrubs or pedestrian walks. Finally, the ordinance provides that the Plan Commission may impose reasonable additional requirements as to landscaping, lighting, signs, advertising, screening, access ways, and also that building setbacks and building height limitations may be imposed by the Commission for the protection of the adjoining property owners. It thus appears to us that if a person were to set out to build a shopping center in the City of Tyler and desired to select a zoning classification carrying with it the least amount of restrictions, there is little doubt that he would select the C-l zone rather than the C-4 classification because the restrictions imposed under C-4 are far greater than those imposed by the C-l. Appellants argue, however, that the basic zoning ordinance shows on its face that C-l is less restrictive than C-4 in that the ordinance sets forth the various classes commencing first with the most restrictive and going to the least restrictive. In this connection it is argued that since C-4 follows C-l, it is less restrictive and therefore appellees are prohibited from making a second application within the six months’ period. We do not believe, however, that the order in which the classes are listed in the basic ordinance is the sole factor in determining whether C-4 is less restrictive than C-l. The basic purpose in all restrictive ordinances is to prevent one property owner from devoting his property to a use which would be unduly imposed on the adjoining landowners in the use and enjoyment of their property. The ultimate question to be determined, therefore, is which of the two classifications would be more likely to accomplish that purpose. It appears to us that the C-4 classification would be much more restrictive and as such would afford appellants much more protection in the use and enjoyment of their property than the C-l classification. Consequently, since the C-4 classification is more restrictive than C-l, appellees were not prohibited from filing the second application within the six months. Appellants’ fifth point is overruled.

In their sixth point appellants assert that both the first and second amenda-tory ordinances were void because ap-pellees were not the owner or owners of the property sought to be rezoned. The argument is that since it is undisputed that the appellees did not own all the land but held an option on a portion of the same, they were ineligible to apply for a change under Section XII. While this Section does provide that the- “owner or owners” may make application for a C-4 classification, we do not believe this Section to be controlling. Section XXIII is the Section of the basic zoning ordinance which specifically deals with amendments. It provides in paragraph 4 thereof that:

“4. A property owner, lessee, developer or option holder may petition the City Commission for an amendment to the text or District Map of this Ordinance, * *

In points nine and ten appellants contend that the trial court erred in refusing to declare both the first and second ordinances void because there was no substantial evidence to support the action of the City Commission in making a change to C-4, and that such action was arbitrary, unreasonable and capricious.

The trial court found that the action of the city was supported by substantial evidence. Findings of fact 17(a) through (o) show what the court took to be substantial evidence supporting the rezoning. These findings were, in part, as follows:

“(a) The highest and best use for the 41.3415 acre tract is for commercial development, * * *.
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“(c) The tract is generally unsuitable for residential development, because there is commercial development to the north. * * * The surface of the tract is very irregular, with a difference in elevation of approximately 100 feet, which makes the cost of levelling and installing storm sewers prohibitive for residential development.
“(d) On the east this property fronts on the Tyier-Troup Highway, a four-lane thoroughfare. On its west it fronts on Paluxy Drive, which according to the comprehensive plan, is designed as a four-lane thoroughfare, an extension to Farm-to-Market Road 756 for entrance into Green Acres Shopping Center. To the north of the property is Dennis Drive, which separates this property from Green Acres Shopping Center. De Charles Street is a collector street entering from the west into Paluxy Drive, which furnishes convenient access to the 41.3415 acre tract. Loop 323 is now in process of being widened into a four-lane traffic artery. Considering the size and capacity of the Tyier-Troup Highway, Loop 323 and Paluxy Drive, and their location with reference to the 41.3415 acre tract, the tract is desirably located with reference to traffic and traffic safety. These streets can handle the traffic which would be attracted to the proposed shopping center to be constructed on this tract with a high degree of safety.
“(e) To the extent that traffic is attracted to this proposed shopping center, traffic will be reduced in the downtown shopping area. The traffic arteries surrounding this tract can handle such traffic with greater safety than the downtown streets can handle the same.
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“(g) The additional commercial development along the Tyler-Troup Highway and Loop 323 since November 4, 1960, makes the 41.3415 acre tract more desirable for commercial development and constitutes a substantial change in the area.
“(h) The population increase in the City of Tyler since November 4, 1960, has been largely in the Green Acres area, which is the area in which the 41.3415 acre tract is located. This also constitutes a substantial change in the area since that date.
“(i) Due to the extreme differences in elevation of the 41.3415 acre tract, the lower portions of it are marshy, or swampy, which creates a health hazard. By developing the property as commercial, it will be levelled and drained, doing away with the marshy or swampy area, which tends to improve the general health of the area.
(j) Certain portions of the tract have been used as a dumping ground for trash of various kinds, as an unimproved area where beer bottles and beer cans are thrown by passing motorists. This will be corrected by its development as commercial property, the very nature of which requires that it be kept clean and sightly. The cleanup will be favorable to the general health of the area.
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“(1) There is substantial evidence that the amendatory ordinance and the construction of the planned commercial area will not be damaging to adjoining property, and in some instances may be beneficial to and increase the value of the same. This is true especially considering that the plan for development contemplates a 40 ft. buffer strip along the west side of Paluxy Street. This buffer includes IS feet of the city parkway and 25 feet off the west side of the 41.3415 acre tract, which will extend along the west side of said tract. This buffer will be beautified and landscaped with plantings in an attractive manner according to the defendants’ plans.”

Appellants produced evidence contradicting some of the above matters but there is evidence in the record supporting each of the findings of fact as filed by the trial court. As we view the record, reasonable minds could differ in considering such conflicting evidence adduced upon the trial.

The enactment of any zoning ordinance is an exercise of the legislative power of the City Commission and is presumably valid. If there existed substantial probative evidence at the time of the enactment of the amendatory ordinances, or if the fact issues in connection therewith are fairly debatable, the courts will not interfere. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955); Tilley v. Rogers, 405 S.W.2d 220 (Tex.Civ.App.). As we view the evidence, the fact issues before the City Commission at the time the ordinances were enacted were substantial and fairly debatable. We have concluded that no abuse of discretion was shown and that enactment of the ordinances was a valid exercise of the power conferred upon the City Commission. Appellants’ points of error are overruled.

Appellants next contend by point eight that the second amendatory ordinance passed on August 9, 1965, was void because no sufficiently specific and detailed plan for use and development was submitted or approved by the Plan Commission prior to its recommending a change to the C-4 classification.

In the finding of fact 17(b) the trial court found:

“(b) The said plan for use and development is reasonably sufficient to apprise all interested parties of the general nature of the development, sufficient under procedures theretofore adopted by the Plan Commission and City Commission in like cases. It is as definite as might reasonably be required or intended, considering the much greater expense which be required by detailed plans and specifications at a time when it was uncertain whether the project could be constructed at all.”

While there were no detailed plans and specifications offered before the Plan Commission, appellees did offer numerous maps and plats as well as artists’ drawing depicting the proposed shopping center together with the parking areas, buffer zones and streets with the proposed entrances and exits. It seems to be without dispute that all of this information was before the City Plan Commission prior to the enactment of the second amendatory ordinance.

What we have heretofore said with regard to the substantial evidence rule applies equally as well here. As we view the matter, there was substantial evidence of the planned use and development. At least, the question is fairly debatable. Under such circumstances, the courts are not permitted to interfere.

Appellants’ remaining points of error have been considered and have been found to be without merit and are therefore overruled.

In view of our ruling holding the first ordinance invalid, the judgment of the trial court in Cause No. 65-441 styled June B. Wallace, et al. vs. Wilton J. Daniel, et al., is reversed and judgment is hereby rendered declaring the first amendatory ordinance dated June 4, 1965, to be null and void.

The judgment rendered by the trial court upholding the verdict of the second amend-atory ordinance is supported by the evidence and no reversible error in connection therewith having been found, the judgment of the court in Cause No. 65-662 styled R. W. Waddell, et al. vs. C. Aubrey Smith, Jr., Trustee, et al., must therefore be affirmed.


author: EAGER, Presiding Judge.

text:
    In the Matter of the Proceedings for the Condemnation and Taking of Private Property in Fee for Public Use as the Site of a Sewage Treatment Facility and Providing for the Payment of Just Compensation, all Under Ordinance of Kansas City, Missouri, No. 26403, Passed August 4, 1961. KANSAS CITY, Missouri, a Municipal Corporation, Respondent, v. J. E. STITH and Roxena Stith, Appellants-Condemnees, The Chief Freight Lines Company, a Corporation and the Chief Realty Company, a Corporation, Appellants-Intervenors.
    No. 51855.
    Supreme Court of Missouri, Division No. 2.
    Dec. 12, 1966.

      Herbert C. Hoffman, City Counselor, Ned B. Bahr, Associate City Counselor, Kansas City, for respondent.
    Kretsinger & Kretsinger, Kansas City, for appellants.
   EAGER, Presiding Judge.

In this case the City of Kansas City filed its proceedings to condemn Lots 2-6, inclusive, Block 11, Woodswether Industrial District; the property is located on the north side of the Central Industrial District and very near the Missouri River. It is located on the north side of Woodswether Road, and is separated by one lot on the east from Liberty Street. The tract is 225 feet east and west by 125 feet north and south. The purpose of the condemnation is to acquire the property in fee simple as a part of the site for Kansas City’s sewage treatment facility. Proceeding under the somewhat peculiar provisions of the Kansas City Charter, a certified copy of the Ordinance of Condemnation was filed in the Circuit Court on March 6, 1964; the court entered an order noting the filing, and publication was duly made. An answer and claim for damages was filed by J. E. Stith, the owner of the tract, in which he claimed $75,000 as its reasonable market value, further alleging generally that any lesser compensation would be a taking of private property for public use without just compensation, in violation of the Fifth Amendment to the United States Constitution and of Article 1, § 26 of the Missouri Constitution, V.A.M.S. Following the trial before a “Freeholders” jury of six, under Section 142, Article VI of the Kansas City Charter, a verdict was returned awarding the owner $40,000, which verdict was confirmed by the court upon the overruling of the after-trial motions.

Before outlining the proceedings involving an attempted intervention, it will clarify the situation to state certain additional facts. Mr. Stith bought the condemned tract in 1953; it was then, and still was at the time of condemnation, improved substantially as follows: a truck terminal building of brick and tile construction, approximately 50 feet by 125 feet with concrete docks, built about 1928 (with some rehabilitation since) and containing also certain “office space”; an attached “garage” building with a high roof, built about 1945, which accommodated tractors and trailers for repair or maintenance; the unoccupied land surface was treated with oil and gravel; the whole area was surrounded by a cyclone fence with appropriate truck gates. The physical condition of the terminal building was described as from “very poor” or “almost beyond economic rehabilitation” (by the City’s witness) to a “fair condition” (by defendant’s expert) ; the office space was obviously in poor condition ; the garage was newer and was said to be in considerably better condition. Mr. Stith testified that he had contemplated, and indeed had “started” some repairs, but that the condemnation intervened and he stopped.

In 1951, soon after the disastrous flood of that year, the Chief Realty Company, a corporation, bought a tract diagonally across the intersection of Woodswether Road and Liberty Street, on the southeast corner (omitting' consideration of the one lot just west of Mr. Stith’s tract). For convenience we shall describe that tract as “Tract A,” and the condemned property as “Tract 6,” as the latter was described in the Ordinance. Tract A appears to be about three times the size of the condemned property. Chief Realty Company is an affiliate or holding company for the Chief Freight Lines, which is an interstate carrier operating between Kansas City, Dallas and Fort Worth. In 1959 or 1960 a freight terminal, described as “modern,” was built on that tract; it was leased to the Freight Lines. Mr. Stith is President of Chief Freight Lines and owns 52% of its stock; he is Secretary-Treasurer of the Realty Company and owns 20% of its stock; neither is a “family” corporation. Tract 6 was used as a truck terminal for the Freight Lines until the new terminal was built on Tract A. It is now used, according to Mr. Stith, for storage of tires and damaged freight, maintenance and repair of equipment, for parking of trucks and trailers, and for “pickup and delivery service.” The real gist of the complaint here, by Stith and the corporations, is that the new terminal on Tract A is not adequate to take care of these added requirements, that it was built with the understanding that it would be used in connection with Tract 6, and that the operations of the Freight Lines will be severely handicapped by the loss of Tract 6 (which has continued to be used temporarily under a rental agreement with the City).

In this situation the Freight Lines and the Realty Company sought to intervene by motion, with a proposed Joint Answer and Claim for Damages attached; therein they alleged the substance of the facts already related, that the joint use of both tracts was required in the business, and that the new terminal would be rendered unsuitable for the operations of the Freight Lines by the taking of Tract 6, to the damage of the Realty Company in the sum of $400,000, and of the Freight Lines in the remaining amounts due under its lease on Tract A at $1,800 per month, or approximately $93,600; both corporations demanded a common law jury trial under Art. XI, § 4 of the Missouri Constitution. The Freight Lines filed a separate answer and claim, purportedly as lessee of Tract 6, in which it asserted damage to it as the lessee of Tract A in the amount of $75,000. The City filed its motion to strike the claims and for an order denying intervention, except in so far as the Freight Lines might be permitted to participate as lessee of Tract 6 in any award made thereon. The grounds of the motion will be developed, generally, in our discussion of the issues. Upon a hearing held in advance of the taking of evidence, the court sustained the City’s motion, struck the Joint Answer and Claim for Damages, and further ordered that if the Freight Lines so desired, the jury would be instructed to “make a division” of its award between the owner of Tract 6 and the lessee. No such request was made then or later. Thereupon, a jury of six freeholders was empaneled and evidence was heard. After the award was made, Mr. Stith filed his motion for a new trial and the Freight Lines and the Realty Company filed their joint motion for a new trial on the denial of their intervention, asserting that this was arbitrary and capricious, and that they were denied due process by the taking. All motions were overruled and the award was confirmed. Mr. Stith (and his wife), the Freight Lines and the Realty Company have filed and prosecuted this joint appeal. The case has been briefed for all appellants jointly, but separate points are made.

Appellant Stith contends, quoting: “The trial court erred in excluding evidence of the special value of the property herein condemned to its owners of record, appellants Stith, by reason of its highest and best use in conjunction with the adjacent Truck-Terminal property of the Chief Realty Company.” The other defendants insist that they were holders of an “equitable interest” in the property condemned and that they were denied just compensation for the taking under the Fifth Amendment to the United States Constitution and Article 1, § 26 of the Missouri Constitution.

The Respondent says: (1) that the jury was instructed to award the fair market value of the property, that it was further instructed to consider all the uses to which it might best be applied or was best adapted, and that the owner’s theory of a “special value” was not properly applicable, there being no “unity of ownership”; (2) that, as to the attempted intervention, the Realty Company had no compensable interest in Tract 6 and that the Freight Lines was granted the right to participate, as lessee of that tract, in the final award, which was the only right it had.

Having stated these contentions, we now review briefly the evidence concerning the value of the property and its uses. The City’s expert appraiser, after reviewing three different accepted methods of valuation and many sales of other properties, fixed a total value of $33,000; he testified that the property had a functional deficiency in its “lack of land,” and that in his opinion it could not operate as an efficient terminal; that its highest and best use was for a rehabilitated storage and maintenance facility. Mr. Stith’s appraiser also considered various sales in the general vicinity and fixed a total fair market value of $60,-000; he further testified that in his opinion the highest and best use of the tract was as a truck terminal. Mr. Stith, after a little indecision, valued the property at “from $65,000 to $70,000.” He further testified : that the tract was used as a freight terminal until the new one was built on Tract A; that it is now used for storage, maintenance, parking for over-the-road vehicles, and for “pickup and delivery” service; that the ownership of Tract 6 (in Stith) was a “factor” in the decision to build the new terminal on Tract A, and that the latter would be “obsolete” without the use of Tract 6 as it was then being used; that there is a ten year lease on Tract 6 to Chief Freight Lines, but he did not know the expiration date and had not brought the lease; that he had discussed the leasing of that property to Spencer Chemical Company for storage, and that a specific rental had been discussed, but that the condemnation ended those negotiations; he did not specifically state what he considered to be the highest and best use of the property and, in effect, declined to do so.

The contentions of appellants are a little difficult to follow: apparently Mr. Stith claims that the court erred in “excluding” evidence of the special value of Tract 6 to him by reason of its use in connection with the terminal on Tract A; that, in other words, the court permitted the property to be considered as an isolated tract. At no place in the record did defendant’s counsel offer the “special value” testimony now suggested, or make an offer of proof of such evidence by way of valuations or otherwise. However, Mr. Stith did testify, without objection, that a factor in deciding to build the new terminal on Tract A was the permissible use of Tract 6, and that the present terminal would be obsolete without the use of that tract; he also testified very fully concerning its then uses. The court sustained an objection to a question asking whether “his company” would be forced to move or sell, and properly so, for this would seem to have been purely speculative. Mr. Stith, as appellant, thus seeks to charge the trial court with a supposed error which the record does not support; except for the foregoing, neither he nor his counsel attempted to develop the subject of which they now com plain, nor is the rejection of any evidence whatsoever complained of in Mr. Stith’s motion for a new trial; in fact, the only real complaint in that motion is the supposed total inadequacy of the verdict. Certainly, in view of the divergent evidence, which we do not weigh here, we would not interfere on that score. Mr. Stith did not even state what, in his opinion, was the highest and best use; we may only assume that he considered the present use as such. He stated his opinion of the full, fair market value, without exceptions. Moreover, the jury had evidence upon which to consider the actual and existing uses, and it viewed the property. See § 144, Art. VI, Kansas City Charter. Under these circumstances we cannot convict the trial court of error.

Counsel admit that the record “is unsatisfactory in this respect” and that “it is not readily apparent why this evidence was not presented.” They state that the question arose on the motion to intervene, that the corporations wanted to prove the “special value” upon intervention, and that the court’s ruling, as interpreted by counsel, precluded evidence of value based upon the “conjunctive use” of the two tracts. Without conceding the validity of the theory now advanced, we note that Mr. Stith was the owner in fee of Tract 6 and it was his fair market value which was being sought and ruled. There can only be one fair market value, determined as a whole, even when there are different interests. State ex rel. State Highway Commission v. Mahon et al., Mo.App., 350 S.W.2d 111. If Mr. Stith wished to press the point, specific evidence should have been offered. No error appears here.

Solely with the view of preventing possible future misunderstanding, and perhaps as dicta, we note the separate and distinct ownerships of the two tracts and express a grave doubt that a mere unity of use, without a unity of ownership (or a single ownership) would support such a claim of special value as is made here and a submission upon any such theory, express or implied. See, generally, 27 Am.Jur.2d, Eminent Domain, § 315, pp. 134—135. Appellant seeks to establish a “unit-ization” of properties without a unitized ownership. The Missouri cases which have even considered the question of a supposedly increased value from a joint use have involved situations where there was a single ownership. St. Louis, Memphis & S. E. R. Co. v. Aubuchon, 199 Mo. 352, 97 S.W. 867, 9 L.R.A.,N.S., 426; Kansas City S. B. R. Co. v. Norcross, 137 Mo. 415, 38 S.W. 299; Public Water Supply Dist. No. 2 of Jackson County v. Alex Bascom Co., Mo., 370 S.W.2d 281. We have not been cited to any Missouri case which upholds the consideration of such a “special value” in condemnation under similar facts. Under our Missouri Approved Instructions the “fair market value” is always the test. We mention three outstate cases cited by defendant. In McCandless v. United States, 298 U.S. 342, 56 S.Ct. 764, 80 L.Ed. 1205, the principal consideration was of a proposed future use (the growing of sugar cane) which would require irrigation from water sources off of the particular tract; however, it appeared that the defendant owned other land from which the water might be brought. In United States v. 3,276.21 Acres of Land (S.D. Cal.), 194 F.Supp. 297, the landowner’s contention that the use of the tract under condemnation should be considered along with an adjoining tract (in order to furnish access) was sustained, but the second tract was, at the time of the taking, in the process of being transferred to the defendant with the papers in escrow, and the transaction was closed prior to trial. The case of United States ex rel. Tennessee Valley Authority v. Powelson et al., 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390, may well be considered as denying a consideration of special value because there were existing diverse ownerships, for the majority of the court held that the defendant could not necessarily acquire the other land by condemnation. We do not discuss the possibility of such a binding contract between owners of different tracts as might conceivably supply the equivalent of a single or joint ownership. In City of St. Louis v. Union Quarry & Construction Co., Mo., 394 S.W.2d 300 (the only Missouri case cited), the land in question was an abandoned, partly filled rock quarry. No common use with any other tract was involved. The court merely held that the land was capable of only one peculiar use, and that it should not have been valued as an area of residential property; to that extent only did the court hold that the jury should consider “a special adaptation for a particular use.” There can be no contention here that Tract 6 can only be used for one purpose; indeed, the owner testified that he had negotiated for a lease devoted to other and independent uses. The jury could, and presumably did, consider all .possible uses of Tract 6, general and special, to which it was adapted. The jury was properly instructed on the question of valuation and the first claim of error is denied.

The second point involves Chief Freight Lines and Chief Realty Company, the corporations; they complain of the denial of their motion for leave to intervene, insisting that they held an equitable interest in Tract 6, and that they have been denied the right to just compensation for the taking, thus violating both the federal and state constitutions. We have already stated, but we repeat here, that the court gave the Freight Lines leave to present its claim as lessee of Tract 6 and to have the jury instructed to apportion its award; obviously it pursued that matter no further. The point now made in the brief does not involve that separate claim, but only the joint attempt to intervene.

It is clearly recognized that, in order to justify an intervention, the intervening party must have an interest in the subject matter of the pending action. Civil Rule 52.11, V.A.M.R.; State ex rel. State Farm Mutual Auto Ins. Co. v. Craig, Mo.App., 364 S.W.2d 343, 95 A.L.R.2d 1321; Ozark County School Dist. R-V of Ozark County v. Lay, Mo.App., 358 S.W.2d 77; State ex rel. Farmers Mutual v. Weber, 364 Mo. 1159, 273 S.W.2d 318; Laclede Gas Co. v. Abrahamson, Mo., 296 S.W.2d 100, 61 A.L.R.2d 1286. In Weber, supra, the court said, loc. cit. 321 of 273 S.W.2d: “As used in the above quoted portion of Section 507.090, and in intervention statutes generally, ‘interest’ means a direct and immediate claim to, and having its origin in, the demand made or proceeds sought or prayed by one of the parties to the original action, but such ‘interest’ does not include a mere consequential, remote or conjectural possibility of being in some manner affected by the result of the original action; to come within the above statute, the ‘interest’ must be such an immediate and direct claim upon the very subject matter of the action that intervener will either gain or lose by the direct operation of the judgment that may be rendered therein.”

Defendants quote from the case of Millhouse v. Drainage Dist. No. 48 of Dunklin County, Mo.App., 304 S.W.2d 54, at loc. cit. 58, the following: “The interest held, the property for which compensation must be rendered, though not necessarily the corporeal thing itself, must consist of some definite right or domination in and over the physical thing, such as the right of user, or exclusion, or disposition. A mere contractual relationship is not sufficient in itself.” They also cite Hamer v. State Highway Commission, Mo., 304 S.W.2d 869; Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024, 17 A.L.R. 543, and State ex rel. Britton v. Mulloy, 332 Mo. 1107, 61 S.W.2d 741. In none of those cases did the factual situation approach that present here. In the first two the claims were denied. In Peters (followed later by Britton) it was held that the owners of lots in a subdivision in which all the deeds contained restrictive covenants limiting buildings to residences had sufficient interest to require the payment of compensation where certain lots in the subdivision were taken for school purposes. That ruling seems to have been seriously questioned in Albrecht v. State Highway Commission, Mo., 363 S.W.2d 643, but the case was eventually distinguished. We do so here, upon the ground that the supposed interests or “easements” in Peters and Britton, supra, arose out of covenants in acknowledged and recorded deeds, and that they constituted legal and enforceable rights. For a more detailed discussion of the subject, generally, see Nichols on Eminent Domain, Vol. 2, § 5.73[1] and [2]. In our present case the corporations rely upon a mere understanding (not even posed as a valid oral contract) between Mr. Stith and the corporations that the Freight Lines might continue to use Tract 6 for its operations; neither the duration, the conditions, the expense of much needed rehabilitation of the property, nor the question of compensation, are claimed to have been fixed in any such understanding. On the other hand, it is shown that the Freight Lines held an existing, written ten year lease on Tract 6, with presumably a substantial time yet to run; the lease was not produced, and the reason would seem obvious, for it would conflict with a mere oral “understanding.” We hold that any and all oral intentions or understandings of the parties were merged into the written lease, and that its terms cannot be thus varied by parol testimony ; for all we know, the lease may have contained options of renewal from term to term, but the lessee did not elect to pursue its rights to an apportionment of one final award on the tract.

These defendants claim that they have an “equitable servitude” upon Tract 6, by reason of the “understanding” and the joint use. No Missouri case is cited which upholds any such interest under circumstances even remotely similar. Counsel cite 5 Harvard Law Review 274 (1891—1892); Clark on Equity, § 96, p. 119, under “Specific Performance of Contracts”; Tulk v. Moxhay (Chancery 1848) 2 Phillips 774. We feel that little would be gained by discussing those authorities; Tulk, supra, involved a covenant in a deed, and the theory as a whole would seem to require an enforceable contract. None is demonstrated here. Counsel recognize that the only Missouri case “which even approaches the issues” is Peters v. Buckner, supra; if we felt that that opinion was strictly applicable, we could re-examine its holding, but we have already distinguished it, at least to our satisfaction. We feel that it would be clearly improper to encumber real estate titles and interests with mere understandings or intents; and particularly is this true when the parties had presumably incorporated their supposed understandings into a written lease, as already noted. We hold that the corporations had no property rights in Tract 6; certainly they had no mandatory right to intervene, and the court did not abuse its discretion in denying the intervention. No constitutional rights were denied or invaded.

So ruling, it is not necessary that we discuss the point made by the city that any possible damage suffered by the corporations would consist of a mere speculative loss of profits which is not compensable in condemnation proceedings. 27 Am.Jur.2d, Eminent Domain, § 285, pp. 83-84; City of St. Louis v. St. Louis, I. M. & S. R. Co., 266 Mo. 694, 182 S.W. 750, L.R.A.1916D, 713; Tate v. State Highway Commission, 226 Mo.App. 1216, 49 S.W.2d 282. Defendants say that they were wrongfully prevented from appearing as proper claimants and from establishing their “concept of highest and best use of the property” (Tract 6). It is true that they were so prevented, but we hold that there was no error in the ruling.

The judgment is affirmed.

All of the Judges concur.