author: HENLEY, Judge.

text:
    Georgia EDWARDS, Mary E. Hawkins, Birdie May Holmes, Viola May Miller, Respondents, v. Jasper MAPLES, Nadine Washington, Francis A. Gilbert and Marie Gilbert, Appellants.
    No. 50534.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.

      Henry BalkenBush, Linn, for respondents.
    William R. Clark, Columbia, for appellants.
   HENLEY, Judge.

Unusual in that it was tried before a jury, this suit in equity to set aside two deeds resulted in a decree for the plaintiffs from which defendants appeal.

As indicated above, title to real estate is involved; therefore, jurisdiction is in this court. Article V, Section 3, Constitution of Missouri, V.A.M.S.

The deeds in question are: a warranty deed dated October 13, 1956, filed for record and recorded on the same day, from Eva Maupin Jacobs, single, to Jasper M. Maples, one of the defendants, describing approximately two acres of unimproved land in Osage County; and, a deed dated December 26, 1959, from Jasper Maples to Francis and Marie Gilbert, two of the defendants, describing the same land. Mrs. Jacobs died in October, 1957, while residing in Jefferson City at the home of her niece, Nadine Washington, the fourth defendant.

Alleging that they are the heirs at law of the said deceased (who allegedly died intestate), plaintiffs state as grounds for setting aside the deed to Maples that the signature of Mrs. Jacobs on that deed' is a forgery. The words of plaintiffs’ petition are: “ * * * [the] purported deed was executed by some person other than the deceased Eva Maupin Jacobs * * * ; that the purported signature on aforesaid deed is not the signature of Eva Maupin Jacobs. * * * ” Plaintiffs also allege that Mrs. Jacobs was senile, infirm, aged and mentally incompetent and incapable of understanding the nature, extent and value of her property; that Nadine Washington was the confidential companion, nurse and ad-visor of Mrs. Jacobs and that Mrs. Washington and Maples entered into a conspiracy to cheat and defraud Mrs. Jacobs out of her property. There is no allegation that Mrs. Jacobs was on the date in question incompetent to execute the deed to Maples or that Mrs. Washington and Maples did cheat and defraud her out of her property. As the only ground for setting aside the deed from Maples to the Gilberts plaintiffs state the conclusion “ * * * that any reasonable inquiry on the part of [the Gilberts] would have informed them of the mental condition of [Mrs. Jacobs] at the time of the purported deed by her to [Maples].”

The decree recites that by agreement of the parties the question to be submitted to the jury was: “Did, or did not the deceased Eva Jacobs known also as Eva Maupin Jacobs sign the deed in question [?].” The question is descriptive of plaintiffs’ trial theory. An instruction was given in language not quite so clear and simple as the question, and the jury returned a verdict finding, “ * * * that * * * Eva Jacobs * * * did not sign the deed * * The decree cancelling both deeds was based on this finding by the jury and the further finding by the court that since Maples had not acquired title, his deed to the Gilberts did not convey title to this land. To say the least, there was a total failure of any allegation or proof that would warrant setting aside the deed from Maples to the Gilberts.

Equity cases are rarely tried to a jury. And in those rare instances where an issue is submitted to a jury the verdict is advisory only. The court may accept or reject the verdict and, if accepted, it is the court’s own finding on the fact issue rather than that of the jury. On review of an equity case we consider the issues as having been determined by the court and are not bound by the finding of a jury. Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610, 615 [8]; Northrip v. Burge, 255 Mo. 641, 164 S.W. 584, 590 [9]; Pixlee et al., v. Osborn, et al., 48 Mo. 313, 316 [1]; Johnston, et al., v. Bank of Poplar Bluff, 221 Mo.App. 127, 294 S.W. 111, 114 [8].

The one point briefed and argued by defendants is: “The trial court erred in finding for the [plaintiffs] as the evidence was insufficient to support a finding of forgery of the signature of the deceased, Eva Jacobs, at the time of the execution of the deed, October 13, 1956.”

“Upon appeal, we review the entire record de novo and reach our own conclusions as to the weight and value of the evidence, giving deference to the findings of the chancellor who saw and heard the witnesses. But the rule of deference does not relieve us of the duty to weigh the evidence, reach our own conclusions, and, if upon review of the whole record, we conclude that the evidence does not meet the standard required, we must so say.” Miller v. Minstermann, Mo., 266 S.W.2d 672, 679 [2] and cases there cited. The standard of evidence required in a suit to set aside a deed is that it be clear, cogent and convincing for “The cancellation of a deed is the exercise of the most extraordinary power of a court of equity, which ought not to be exercised except in a clear case.” Edinger v. Kratzer, Mo., 175 S.W.2d 807, 813 [11]; Lastofka, et al. v. Lastofka, 339 Mo. 770, 99 S.W.2d 46, 54; Bross v. Rogers, Mo., 187 S.W. 38.

Bearing in mind this standard of evidence in examining the record, we must also keep in mind that the burden is on the plaintiffs to establish that the signature on the deed from Mrs. Jacobs to Maples is not that of the grantor or that it was executed by some person other than her. Elliott v. Sheppard, 179 Mo. 382, 78 S.W. 627.

Plaintiffs’ evidence to support their claim that the signature on this deed was not that of Mrs. Jacobs was confined to the testimony of Georgia Edwards. Mrs. Edwards, one of the plaintiffs, a sister of Mrs. Jacobs, testified that she received some letters from her sister in 1920, “But I didn’t keep those letters, but I know that ain’t her handwriting. I know that much.” Immediately after that statement the witness was handed what was identified by counsel’s question as “a piece of paper” and asked whether “that” was the signature of Mrs. Jacobs. Her answer was: “That is not my sister’s handwrite. I can remember that much to know that my sister could write better than that. A little. Not too much.” The record does not disclose whether this “piece of paper” was the deed in question, but we will assume that it was. The witness was uncertain as to whether she had last seen her sister, in the year 1956 or 1957.

The balance of plaintiffs’ case in chief was made up of the testimony of two nieces of the deceased, one of whom was a plaintiff. The extent of their testimony was that Mrs. Jacobs was in poor health in 1956, and in their judgment she was not physically able to sign her name. One, Viola Miller, last saw Mrs. Jacobs on May 30, 1956; the other, Vonona Brown, said she visited Mrs. Jacobs several times a week and she “imagined” she visited her in October, 1956. Neither was acquainted with her signature.

Plaintiffs’ evidence in rebuttal consisted of very brief descriptions of the size of Mrs. Jacobs in 1956 and 1957, in these words: that she was “not a fleshy person”; that she was “tall and slender”, “slim and thin”, “skin and bones.” These descriptions were apparently in rebuttal to a description of Mrs. Jacobs given on cross-examination of the person who took the grantor’s acknowledgment to the deed to Maples. This person, Clem C. Gove, an attorney and Judge of the Probate Court of Osage County, said on cross-examination, “ * * * I’m pretty poor on guessing people’s weights and size, Henry. I would judge she would be about five [feet] five [inches], five [feet] six and a half [inches]”, * * * “Q. Was she fleshy? A. Well, she was a little on the heavy side.” Nadine Washington, the niece with whom Mrs. Jacobs lived for several years, had testified on cross-examination that Mrs. Jacobs was “sort of tall and thin”, that she was “five [feet] six [inches] or something” and “weighed about 140 or 145 pounds.” Also, Jasper Maples, on cross-examination had described Mrs. Jacobs as “a medium-like woman, she wasn’t too fleshy.” The rebuttal evidence of brief descriptions quoted in the first part of this paragraph was the full extent of plaintiffs’ efforts to show that the deed to Maples was executed by some person other than Mrs. Jacobs. None of plaintiffs’ witnesses testified that they saw Mrs. Jacobs on the day this deed was executed; there was no evidence that she was not on the morning of that day in the office of .the probate judge who prepared the deed and took her acknowledgment; there was no evidence of a conspiracy between Maples and Nadine Washington to cheat and defraud Mrs. Jacobs out of her property or that they, or either of them, did cheat and defraud Mrs. Jacobs; there was no evidence that on that day Mrs. Jacobs was incompetent to execute this deed; and, the' vital point, there was no substantial evidence that the signature on this deed was not the signature of Mrs. Jacobs.

The defendants’ evidence consisted of the testimony of Clem C. Gove, who, as stated, was the Probate Judge of Osage County, and defendants, Jasper Maples and Nadine Washington.

Mrs. Washington testified that as a result of her contacting Jasper Maples at Mrs. Jacobs’ request, the latter sold him the property she owned in Osage County; that on the morning of October 13, 1956, Mrs. Jacobs asked her to go with her and Mr. Maples to Linn, Missouri, to complete the sale; that at Linn they went to the office of Judge Clem C. Gove; that although she was present in Judge Gove’s office when Mrs. Jacobs signed this deed, she did not actually see her affix her signature; but, that it was Eva Jacobs who signed this deed in Judge Gove’s office that morning.

Jasper Maples testified that he knew Eva Jacobs; that he took Mrs. Jacobs and Nadine Washington to Linn the morning of October 13, 1956, to complete his purchase of two acres of land owned by Mrs. Jacobs; that he gave her $50 for it and she handed him the deed; that the deed was signed in Judge Gove’s office and that he was standing beside Mrs. Jacobs and watched her sign it and saw Judge Gove take her acknowledgment.

Judge Clem Gove testified that he met Mrs. Jacobs about ten days or two weeks before October 13, having been introduced to her by Judge John Peters at Linn; that Judge Peters had secured the description of this land for Mrs. Jacobs, but was not feeling weH and asked him (Gove) to prepare the deed and take the acknowledgment; that he visited with Mrs. Jacobs for a few minutes while she told him of knowledge she had of his grandmother and others; that Mrs. Jacobs told him that she had paid only $25 for this land, that she could not live on it because it had no house, and further that she thought she had best sell it because she was afraid its ownership might affect her continuing to receive an old age pension. He also testified that she was an elderly woman and could not walk too well; that in his opinion she was competent to execute the deed, otherwise he would not have taken her acknowledgment; that she signed this deed in his presence without any assistance; that he knew the person who signed the deed was Mrs. Jacobs because she was so identified by Judge Peters (the record indicates Judge Peters was dead at the time of the trial) ; that he had no doubts that this person was Eva Jacobs because Judge Peters said it was Mrs. Jacobs.

The testimony of Georgia Edwards that the signature on this deed was not that of her sister, Mrs. Jacobs, has little, if any, value, particularly when we consider that she apparently had not seen her sister’s signature for more than 35 years. Nor would the testimony of Mrs. Miller or Mrs. Brown have any probative value on the issue of whether the signature on the deed was that of Mrs. Jacobs. Mrs. Miller, who had seen her aunt on May 30, 1956, said only that she did not think Mrs. Jacobs was in physical condition to sign her name, but she did not fix the time of that condition as being in the month of October of that year. Mrs. Brown merely stated that in her judgment Mrs. Jacobs was not physically able to use her hands to write in October, 1956. To compare with this somewhat vague and indefinite testimony we have the positive statements of Judge Gove and Mrs. Washington, disinterested witnesses, that it was Mrs. Jacobs who was present and signed the deed to Maples in Judge Gove’s office the morning of the date of the deed. Mrs. Washington also testified that Mrs. Jacobs was able to “get about the house” and “able to use her hands” during 1956; that she “undressed herself” and “fed herself.” We characterize Mrs. Washington as a disinterested witness although she was a defendant, because she had nothing to lose should the plaintiffs prevail; on the contrary, she could conceivably have gained by that result for, according to the record, she was a daughter of a deceased sister of Mrs. Jacobs and as such an heir.

After a careful review of the record we are convinced that the plaintiffs have wholly failed to meet the standard of evidence required. We have reached the inescapable conclusion that the finding and decree of the chancellor is against the weight of the credible evidence.

The plaintiffs have filed a motion to dismiss the appeal because defendants’ brief does not comply with Civil Rule 83.05(c) V.A.M.R. The violation is not so flagrant as to compel a dismissal. The motion is overruled.

The judgment is reversed and the cause remanded with directions that the court enter a decree for the defendants.

All concur.


source: Caselaw Access Project

author: PER CURIAM. FINCH, Judge

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Regina MEIER et al., Exceptions of Annie Pitti, Defendant-Respondent.
    No. 50290.
    Supreme Court of Missouri, En Banc.
    March 8, 1965.
    Rehearing Denied April 12, 1965.

      Robert L. Hyder, Jefferson City, Samuel C. Ebling, Robert C. Finot, Kirkwood, Wilkie Cunnyngham, Jefferson City, for appellant.
    Nathan B. Kaufman, St. Louis, Guilfoil, Caruthers, Symington, Montrey & Petzall, by John P. Montrey, St. Louis, for respondents.
   PER CURIAM.

The following opinion, written as a dissenting opinion in Division Number One by Dalton, J., is, with some deletions and additions, adopted as the opinion of the Court en Banc.

Respondent had judgment for $57,500.00 which was more than $30,000.00 in excess of the highest damages conceded by appellant so that jurisdiction is in this court.

Respondent accepted the statement of facts as set forth in appellant’s brief, hence we take the facts from that statement. Respondent owned 1.0718 acres of land fronting 293 feet more or less on the west side of Highway 67 by an average depth of 150 feet on which she operated a motel. By condemnation appellant acquired for highway right-of-way purposes a tract of land approximately 30 feet wide along the entire frontage of this property, .containing .222 acres, and also a temporary construction easement containing approximately .097 acres. After the condemnation, the right-of-way for the highway was 300 feet wide in front of respondent’s property. The right-of-way has been improved with two “limited access” 2-lane throughways in the center portion of the right-of-way and two paved outer roadways on the outer edges of the right-of-way. Each of the outer roads are dual-lane trafficways so that traffie may move in either direction to designated entrances into the throughways. Prior to the improvement respondent had two driveways from her property on to Highway 67, which was then a 2-lane highway, and travelers could enter her property therefrom and on leaving respondent’s property they could proceed in either direction. Appellant, however, did not condemn nor take from respondent the right of ingress or egress from her remaining property to the 2-Iane highway constructed upon the portion of the 300-foot highway right-of-way adjacent to her property and respondent, her customers and invitees may enter upon that 2-lane outer roadway from any point along the entire frontage of respondent’s remaining property and she or they may proceed in either direction north or south as before the condemnation took place and they may enter the throughways at the designated places. Travelers may come to her property over the same routes. There is no limitation of access insofar as respondent’s remaining property is concerned, but respondent and her invitees will not be able to enter upon the “limited access” 2-lane throughways in the center of the 300-foot highway unless they go, as all other members of the traveling public must go, to the proper entrances which are available some distance north and south of respondent’s motel.

An abutting owner’s property right to “access” is better described as the right of ingress and egress to and from his property and the abutting public highway. The right also includes the further right to connect with or reach the system of public highways, which right is also subject to reasonable restrictions under the police power of the State in protecting the public and facilitating traffic. The right does not include the right to travel in any particular direction from one’s property or upon any particular part of the public highway right-of-way because, after one is upon the highway he has the same right as all other travelers and the right of travel is a public right and controlled by the police power of the State. Nor does the right of ingress or egress to or from one’s property include any right in and to the existing public traffic on the highway, or any right to have such traffic pass by one’s abutting property. The reason is that all traffic on public highways is controlled by the police power of the State, and what the police power may give an abutting property owner in the way of traffic on the highway it may take away, and by any such diversion of traffic the State and any of its agencies are not liable for any decrease of property values by reason of such diversion of traffic, because such damages are “damnum absque injuria”, or damage without legal injury. The trial court, therefore, erred in admitting evidence of depreciation of the value of respondent’s property by reason of the diversion of traffic and the so-called “loss of access”.

While the petition in this case and the plans for the improvement may show that no abutting property owners shall have the right of direct access to the throughways, except as shown on the plans, this prohibition applies with equal force to all members of the general traveling public and the statement is a declaration under the police power of the State as granted to the State Highway Commission by the Constitution of Missouri 1945, Art. IV, Sec. 29, V.A. M.S. Damages caused thereby are damages without legal injury and are not recoverable. Therefore, as far as respondent and her property rights are concerned she has the same right of ingress and egress from her remaining property to the highway right-of-way that existed before, but after she or her invitees enter upon the adjacent right-of-way of the highway, they are subject to the same regulations, inconveniences and controls that govern all other members of the traveling public. They must go to the established entrances to get on the throughways. The “limited access” in this case is, therefore, only the limitation of access as applied to the throughways. That limitation is imposed by the State Highway Commission under the police power of the State and that regulation applies to respondent and her invitees just like it does to everyone else using the highway. If it causes damage and inconvenience, it is a common inconvenience applicable to all.

Respondent, as an abutting property owner on a public highway, does not now have and has never had any other property interest in the public highway other than a reasonable right of ingress and egress, as stated. Respondent has never had a property right in the traffic, great or small, on the highway, nor a right, to recover damages for a decrease in value of her premises by reason of the diversion of traffic away from her property, nor has she had a property right to have the same amount of traffic pass her property as before or to have it move in the same direction. Respondent’s property right of access has never extended further than the right to enter upon the highway or to leave it and have reasonable connection to the public road system. Once upon the highway, the police power of the State controlled and respondent and her invitees were subject to the “Rules of the Road” as established by statute under the police power of the State (Ch. 304, Traffic Regulations, RSMo 1959, V.A.M.S.) and now, as may be determined by the State Highway Commission under constitutional authority. No one has a right to drive on any part of the road he may want to or the way he wants to. These Rules of the Road and all such police power regulations apply to respondent and her invitees in common with all other members of the public and she may not collect damages for common inconveniences that she may suffer along with all other members of the public, nor for damages resulting from the exercise of the police power of the State.

While this Court may not have previously ruled a case exactly like this one, nevertheless, we think the general issues have been settled by many appellate court decisions, the most recent of which we find to be Filger v. State Highway Commission, decided by the Kansas City Court of Appeals, February 5, 1962, and reported in 355 S.W.2d 425. This opinion is in conformity to the law of this State as previously declared, and it further represents sound public policy, as previously recognized. In that case the owners of a tract of land abutting upon the highway had sued for damages allegedly suffered through alterations of the traffic pattern on the existing highway. The Court of Appeals, in an opinion by Maughmer, C., held that a diminution from 163 feet to 47feet in the direct access of the abutting property to the main highway did not materially block or render physically impossible vehicular entrances and did not entitle the owner to an award of damages against the State Highway Commission, and it further held that traffic, great or small, is merely an incident to streets and highways and cannot be considered an element of damages or benefits. The opinion, while not citing many Missouri cases, cites numerous cases from other states which conform to the general law of Missouri and are not inconsistent with the law as previously declared by this Court.

A late decision by the Supreme Court of Arkansas in Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S.W.2d 728, is also in accord with such decisions of this Court as are available in Missouri at this time. The decision accords with sound public policy and many decisions support the conclusion there reached, to-wit, that, although the right of ingress and egress is a property right which is compensable in a condemnation action, yet, where the condemnee’s remaining land was on an access road, there was no taking of such property right, even though the adjacent access road’s nearest connection with the “limited access highway” was more than a mile from condemnee’s filling station. It was further held that depreciation in property values and loss occasioned by the diversion of traffic and inconvenience resulting from circuity of travel in reaching the subject property were not compen-sable; and that evidence of loss resulting from such diversion of traffic, et cetera, was incompetent and inadmissible. One Judge dissented, but we think his views do not accord with prior decisions of this State.

In numerous condemnation cases it has been well established that a condemnee may not recover for such injuries, damages and inconveniences as are common to other members of the public, including other landowners in the neighborhood, portions of whose land has not been taken. Chicago, Great Western R. Co. v. Kemper, 256 Mo. 279, 166 S.W. 291, 295 [8, 9].

In the case of State ex rel. State Highway Commission v. McMurtrey, Mo.Sup., 300 S.W.2d 521, 527 [6, 7], this Court reversed the case because the trial court had refused to give Instruction No. 3, as follows : “ ‘The Court instructs you that in determining whether there is any damage to the defendant’s (sic) land, you shall not take into consideration such inconveniences and disadvantages, if any, to the defendant as are the consequences of the lawful and proper use of the state highway in question in so far as the same are common to other landowners in the neighborhood, no portion of whose lands is taken for said state highway. Nor shall you consider any inconveniences, disadvantages, or damages which do not cause a decrease in the market value of the defendant’s (sic) land.’ ”

Also see Missouri, A. & G. R. Co. v. Harris, Mo.Sup., 181 S.W. 34,35 [3] (where the refusal of such an instruction was held error); State ex rel. State Highway Commission v. Watkins, Mo.App., 51 S.W.2d 543, 544[1-3] (where the refusal of such an instruction was held error); State ex rel. State Highway Commission v. Graham, Mo.App., 74 S.W.2d 493, 494[2] (where the refusal of such an instruction was held error); State ex rel. State Highway Commission v. Manzer, 229 Mo.App. 287, 77 S.W.2d 123 [1]; Kansas City, N. & Ft. S. R. Co. v. Dawley, 50 Mo.App. 480, 485; State ex rel. State Highway Commission v. Hoffman, Mo.App., 132 S.W.2d 27, 30 [3].

A condemnee may only recover for such items of damages as are special to him.

Further, many cases deal with the rights of an abutting owner upon a public street or highway and point out that such right constitutes a property right and is an interest in land which cannot be taken by condemnation without payment therefor. Nevertheless, the cases point out that this right is subject to certain well-recognized limitations and exclusions. One of these limitations is that the right of ingress and egress does not extend to every foot of the condemnee’s frontage, but under the police power of the State the right may be limited to a reasonable access under the existing facts and circumstances. Filger v. State Highway Commission, supra. Every citizen holds his property subject to the valid exercise of the police power. Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 634[1] and cases cited.

In the case of Christy v. Chicago, B. & Q. R. Co., 240 Mo.App. 632, 212 S.W.2d 476, 479 [4, 5], the Court said that, “ * * * when access to property is cut off in one direction by the vacation or closing of a street upon which it abuts but may be had in the other direction, the property is not taken or damaged. It does not suffer damage different in kind from that suffered by the general public although injury to the property may be greater.”

Other cases hold that an abutting property owner’s right of ingress and egress to and from a public street is subject to the eity’s right to regulate the right in the public interest and that a city may do so as long as such regulations do not unreasonably impair the owner’s right. City of Clayton v. Nemours, 353 Mo. 61, 182 S.W.2d 57, 60[4-6]; Nemours v. City of Clayton, 237 Mo.App. 497, 175 S.W.2d 60, 65 [1, 2]; Wilhoit v. City of Springfield, 237 Mo.App, 775, 171 S.W.2d 95, 98[4-6].

In the case of Press v. Penny, 242 Mo. 98, 145 S.W. 458, 459[1, 2], the Court said with reference to the property right of access: “It is true that the exercise of this right is, like the exercise of the right of the public to travel on the same highways, subject to the reasonable control of the Legislature, applied either directly or through its municipal agencies; but each of these rights is subject to those modifications and restrictions necessary to the exercise of the other.”

In the case of Gorman v. Chicago, B. & Q. R. Co. & City of St. Louis, 255 Mo. 483, 491, 164 S.W. 509, 511, where the city had authorized the railroad to construct an embankment 15 feet high across a street requiring the re-routing of traffic and an abutting owner of property on the street complained, this Court said: “The right protected by the Constitution because it pertains to his property is the right of access to the street or free passage between his property and the street so that he may go upon it to exercise his public right of travel, and when he has done so return to his own ground. * * * While some courts in other jurisdictions have held that the private right of access to the street appurtenant to abutting property includes the right to travel along the street to certain other places within limits that thus far have not been satisfactorily designated this court has consistently adhered to the doctrine that the right of access is the only right appurtenant to private property which is not included within such broad control as has been conferred upon the city of St. Louis by the charter provision we have quoted.” (Italics ours.)

In the same case the Court further stated: (255 Mo. 483, 494, 164 S.W. 509, 512) “ ‘The inconvenience to every person traveling in a vehicle south of the railroad tracks, who desires to go north directly across them on this public street, and to every person north who desires to go directly on it south across them, of having to make a detour by some adjacent street where crossings are provided, is the injury of which the plaintiff complains in each case. This is a common public injury for which damages cannot be recovered by an individual citizen, although such inconvenience to the public and to him may depreciate the value of his property.1 ” (Italics ours.) And see Siemers v. St. Louis Elec. Terminal R. Co., 348 Mo. 682, 155 S.W.2d 130, 136[9-11].

In the case of Christy v. Chicago, B. & Q. R. Co., supra, 212 S.W.2d 476, 479 [4, 5], the Court further said: “it is now a well settled doctrine in this state that property is not damaged by the vacation or closing of a street or highway unless it abuts upon that part of the street vacated, or, is cut off altogether from the general system of streets or highways. This is not a universal doctrine and it has been criticised but it is the law in this state established by a long line of authorities, which authorities also establish the further proposition that when access to property is cut off in one direction by the vacation or closing of a street upon which it abuts but may be had in the other direction, the property is not taken or damaged. It does not suffer damage different in kind from that suffered by the general public although injury to the property may be greater.” (Italics ours.)

It will be noted that both the Christy case and Gorman case call attention to the fact that the law of Missouri is not universally accepted in this country; some states do not follow the Missouri law. However, the opinion in Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499, 502, points out that some contrary decision in other states are based upon statutes or constitutional provisions that are not controlling in Missouri.

A party may recover only when his private property rights are taken, but not for rights he enjoys as a member of the public. In Rude v. City of St. Louis, 93 Mo. 408, 414, 6 S.W. 257, 258, the Court said: “In Dill. Mun. Corp., we find this statement: ‘Although the distinction between the nature of the rights of the public in a street, and the right of an individual proprietor to access to his premises from the street, has been often overlooked, yet it is one which has been asserted by high authority. The right of an abutting owner to access to and from the street is a private right, in the sense that it is something different from the right which the members of the public have to use the street for public purposes. Conformably to this doctrine, and in part based upon it, a person owning or in possession of premises abutting on the public highway or street, whose right of access to the same is unreasonably or unlawfully obstructed, may recover from- the person causing such obstruction damages for the private injury he sustains, where such damages are particular, direct, and substantial.’ Section 730, 3 Ed. So the law is quite well settled that the property owner must show, to entitle him to recover damages for an obstruction to a highway, that the damages are peculiar to him, different in kind, and not merely in degree, from those suffered by other members of the community.”

In Fairchild v. City of St. Louis, 97 Mo. 85, 87, 11 S.W. 60, the Court said: “The ground of complaint is the same in each case, and in each case access to the public street to and from the owner’s property and along it to the whole public street system of the city is unobstructed, though not so convenient, perhaps, as before this crossing was closed. The inconvenience to every person traveling in a vehicle south of the railroad tracks, who desires to go north directly across them on this public street, and to every person north who desires to go directly on it south across them, of having to make a detour by some adjacent street where crossings are provided, is the injury of which the plaintiff complains in each case. This is a common public injury, for which damages cannot be recovered by an individual citizen, although such inconvenience to the public and to him may depreciate the value of his property.”

In Wilson v. Kansas City, Mo.Sup., 162 S.W.2d 802, 803[1, 2], the Court, with reference to an abutting landowner’s rights, said: “ ‘The right protected by the Constitution because it pertains to his property is the right of access to the street or free passage between his property and the street, so that he may go upon it to exercise his public right of travel, and when he has done so return to his own grounds.’ ” (Italics ours.)

We hold the trial court erred in refusing to give plaintiff’s Instruction A, which was proper under our instruction practice in effect at that time; and in admitting in evidence the testimony concerning the alleged $25,000 decrease in value of the premises due to the diversion of traffic by the limited access nature of the new roadway causing traffic to flow faster by the premises, deterring northbound traffic, hindering southbound traffic and causing an obstacle or barrier interfering with the free flow of customer traffic into the con-demnee’s property; and that the speed at which the traffic would flow by would deter people who were potential customers from stopping. On retrial, plaintiff would be entitled to an instruction withdrawing improper elements of damage which should be modeled after 30.02, Missouri Approved Jury Instructions.

The judgment is reversed and the cause remanded.

EAGER, C. J., STORCKMAN, HYDE, HOLMAN and HENLEY, JJ., and STONE, Special Judge, concur.

FINCH, J., dissents in separate opinion filed.

DALTON, J., not sitting.

FINCH, Judge

(dissenting).

This appeal involves the question of whether the conversion of U. S. Route 67 to a limited access highway caused Respondent Anna Pitti to lose her pre-existing right of access to U. S. Route 67 or whether the construction of an outer roadway preserved her right of access and prevented consideration of loss of access in determining her damages. I find myself unable to concur in the majority opinion for the reasons expressed in my dissenting opinion filed in the case of State ex rel. State Highway Commission v. Brockfeld, et al., Mo., 388 S.W.2d 862, decided simultaneously with this case.

I would affirm the judgment.


author: HYDE, Judge. FINCH,'Judge

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. G. A. BROCKFELD et al., Exceptions to the Award of George F. Mohr, Genevieve B. Mohr, John G. Speed, Trustee, Alberta E. Denny, Sinclair Refining Company, a corporation, Noah C. Hase, Irene Hase, People’s Bank of Hawk Point, a corporation, William Sands and Fern Sands, Defendants-Respondents.
    No. 50883.
    Supreme Court of Missouri, En Banc.
    March 8, 1965.
    Rehearing Denied April 12, 1965.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for appellant.
    Alvin Juergensmeyer, Warrenton, Wehr-le & Wehrle, Clayton, for respondents George F. Mohr and Genevieve B. Mohr.
   HYDE, Judge.

This case, transferred from the St. Louis Court of Appeals, is a condemnation proceeding for right of way for the construction of Interstate Route 70. The facts are stated in opinion of the Court of Appeals, 378 S.W.2d 254, to which reference is made for details.

The situation was that respondents Mohrs owned land (1.67 acres) abutting U. S. Highway 40, leased to respondent Sinclair Refining Company. Sinclair built a gasoline service station on it and leased it to respondent Sands. Route 40 had two separate concrete pavements; the north lane 18 feet wide provided two lanes for westbound traffic, the south lane 24 feet wide provided two lanes for eastbound traffic. There were two entrances from the eastbound traffic lanes of Route 40 to respondents’ service station, one at the east end and one at the west end of their property. There was also a crossover between the separate traffic lanes of Route 40 near the western entrance to the service station.

Interstate 70 also is built with east and westbound through traffic lanes, using for its eastbound traffic lane the eastbound traffic lane of Highway 40 but resurfacing it, and constructing a new 24-foot westbound traffic lane on substantially the same location as the old 18 foot of Route 40. However, on each side of these through traffic lanes, an outer roadway, 20 feet wide, is constructed, on which traffic can proceed in both directions. Respondents had access from their property only to the south outer road, which went to interchanges at War-renton on the west and at Wright City on the east, each about three miles distant. Traffic could only enter the Interstate 70 through traffic lanes at such interchanges and these were the ones nearest to respondents’ property. A county road, making a grade crossing of Route 40, east of respondents’ property, will cross Interstate 70 on an overpass but there no interchange is provided to go on to Interstate 70 from that road. The outer roadway is on the old right of way of Route 40 except for a small tract consisting of .036 acre at the northeast corner of respondents’ land near the county road which was taken for the purpose of constructing part of the outer roadway toward the county road at the overpass.

The Court of Appeals thus stated respondents’ contention: “[Respondents are not claiming damages because they will not have direct access to Interstate 70 when completed. They do not claim they have any such right of access. Nor do they deny that the appellant has the right, in a proper proceedings, to destroy or impair their right of access to existing Highway 40. But they do contend that they had an easement of access to pre-existing U. S. 40 and that it was a property right which could not be taken from them by condemnation without just compensation.” This really amounts to a claim that the state cannot impose traffic regulations on any lanes of existing highways which change direction of travel and places of entry on such lanes, regardless of means of access provided for abutting landowners, without payment of compensation to them for change in the kind of access they had. This claim is unsound.

Decisions of the courts are conflicting on the nature of an abutter’s right of access, the nature of the loss suffered, the nature of a frontage road in a limited access highway and the right of an abutter to be compensated for the loss of direct access to main highway traffic lanes. It is said: “The decisions of the courts seem to fall in three major categories:

“(1) That any loss which results from being placed upon a frontage road is not to be compensated in eminent domain, whether land is taken or not.
“(2) That any loss resulting from being placed on a frontage road should be compensated, but the frontage road should be considered in mitigation.
, “(3) That any loss resulting from being placed upon a frontage road should be compensated only when accompanied by a taking of land and that the existence of a frontage road should be considered in mitigation.” State of New Mexico ex rel. State Highway Comm. v. Danfelser, 72 N.M. 361, 384 P.2d 241, 244; Stefan Auto Body v. State Highway Commission, 21 Wis.2d 363, 124 N.W.2d 319, 322, both of which held there should be no compensation where a frontage road provided access. See also Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S.W.2d 728; Langley Shopping Center v. State Roads Commission of Maryland, 213 Md. 230, 131 A.2d 690; Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839; State of New Mexico ex rel. State Highway Comm. v. Lavasek, 73 N.M. 33, 385 P.2d 361; Selig v. State of New York, 10 N.Y.2d 34, 217 N.Y.S.2d 33, 176 N.E.2d 59; Darnall v. State of South Dakota, 79 S.D. 59, 108 N.W.2d 201; Nelson v. State Highway Board, 110 Vt. 44, 1 A.2d 689, 118 A.L.R. 915.

As stated in Pennysavers Oil Co. v. State of Texas, (Tex.Civ.App.) 334 S.W.2d 546, 548-549, where freeway lanes were built east of the old highway on which plaintiff’s service station was located reducing it to a frontage road: “The State has the right under the provisions of Art. 6674w, supra, and its police power, to provide for one-way traffic, no U .turns, division barriers, no left or right turns, traffic lanes, speeding and parking regulations, circuitous routes; for the changing of highways generally, and is not responsible for loss of trade to abutting landowners as a result of the exercise of this police power, so long as it does not amount to a complete taking of the right of access. * * * If the State had decided to build this Freeway a block or a mile from appellant’s property, it would likewise have lost its trade, but no abutting property owner has a vested interest in the traffic that passes in front of his property, and if this traffic is diverted by the State building a road at another place, and the traveling public prefer to travel the new road and abandon the old road, the State cannot be held liable for any loss of trade suffered by an abutting landowner on the old abandoned road.” See also Holbrook v. State of Texas (Tex.Civ.App.), 355 S.W.2d 235; State of Texas v. Baker Bros. Nursery (Tex.Sup.), 366 S.W.2d 212.

Of course, a complete blocking of an abutter’s access takes from him a property right in the nature of an easement and this requires resort to eminent domain. However, ingress and egress to a particular lane of a highway and direction of travel thereon can be regulated under the police power of the state for public safety and general welfare, without compensation to an abutter who is furnished unrestricted right of access to a lane of the highway upon which his property abuts and which connects with the restricted lanes at designated points. (See discussion in the following Law Review articles: 13 Mo.Law Review 19 (1948); 3 Stanford Law Review 298, 304 (1951); 27 Washington Law Review 111, 123 (1952); 43 Iowa Law Review 258, 265 (1958); 38 Nebraska Law Review 407, 423 (1959); 11 Baylor Law Review 149 (1959); 56 Northwestern Law Review 587, 603 (1961). In this case, respondents have been furnished unrestricted access to a lane of the highway, an outer road on its right of way, along the entire front of their property. Therefore, any compensation resulting from this situation would have to be for circuity of travel rather than for loss of access to the highway.

Cases contrary to this conclusion are cited and discussed in the opinion of the Court of Appeals but as the court recognized there has been no previous opinion in accord with them in this state. A more recent case now cited is Hendrickson v. State of Minnesota, 267 Minn. 436, 127 N.W.2d 165, brought on the theory of “inverse condemnation,” in which no land of the plaintiffs was taken and the old highway, a single two-way traffic pavement, was left as it was but designated an outer service lane. Two new traffic lanes were built on the opposite side of the old pavement from plaintiffs’ property, one for southbound traffic and one for northbound traffic. The court held plaintiffs had a right to reasonably convenient access to the main thoroughfare and would be entitled to damages for its substantial impairment. An award of damages, -in this situation, is contrary to long settled Missouri law as well as respondents* theory of this case, which the Court of Appeals recognized by saying: “If Old 40 Highway had become the outer road, then respondents would not be damaged by loss of access for the reason that their access would not be disturbed.” For a case so holding see State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53. Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499, was an action for consequential damages for impairment of plaintiff’s means of ingress and egress by building a viaduct in a public street. Plaintiff’s property abutted on the street and no part of it was taken but plaintiff’s access to and from the viaduct was by ramps. We held that, in the absence of an authorizing statute, consequential damages could not be recovered from the state and pointed out that such statutes existed only as to cities. (In the Hendrickson case, the court did find legislative intent to compensate owners in the situation therein involved, 127 N.W. 2d 1.c. 169, footnote 1.) In the Hill-Behan case, we followed Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168, and the many cases cited therein, which involved a claim for consequential damages for change of grade, no part of plaintiffs’ property being taken. See also State ex rel. State Highway Commission v. Lynch, Mo.Sup., 297 S.W.2d 400. In this case, while a small tract of respondents’ land was taken, it was taken to become a part of the outer road where it angled toward the county road overpass and thus furnished access for this corner of respondents’ land to this outer roadway.

We can see no difference of legal significance in leaving an old pavement as an outer road and building new pavement for limited access thoroughfares or in building a new outer road pavement and using the old pavement (or new pavement on its location) for the limited access thoroughfares. In either situation the abutting owner would have the same access to his property and the same circuity of travel to reach the throughway lanes on which he desired to travel. The real basis for complaint of an abutting owner, which makes a difference to him if he operates a commercial enterprise, is diversion of traffic. However, it is generally well settled (as shown by the cases herein cited; see also 18 Am.Jur. 899, Eminent Domain, Sec. 259; 29A C.J.S. Eminent Domain § 162, p. 702) that such an owner has no right to a continuation of the flow of traffic directly in front of his property (which could be affected just as much by building a new road a block or a mile away as by limiting access to the old road and giving him access by an outer road); and that diminution in the value of land because of such diversion of traffic is the result of an exercise of the police power and is noncompensable. See State ex rel. State Highway Commission v. Meier, 388 S.W.2d 855, decided concurrently herewith. Therefore, it was error to admit evidence of damages based on loss of direct access to previously existing U. S. Highway 40 lanes and to instruct the jury to consider this in determining compensation to be paid to respondents. Appellant would be entitled to an instruction withdrawing improper elements of damage which should be modeled after 30.02, Missouri Approved Jury Instructions.

The judgment is reversed and the cause remanded.

EAGER, C. J., STORCKMAN, HOLMAN and HENLEY, JJ., and STONE, Special Judge, concur.

FINCH, J., dissents in separate dissenting opinion filed.

DALTON, J., not sitting.

FINCH,'Judge

(dissenting).

I find that I am unable to concur with some of the conclusions stated in the majority opinion or with its decision to reverse and remand this case, and I respectfully dissent therefrom for the reasons herein set out.

We start with an agreed premise that under the law of Missouri an abutting property owner on an existing highway has a right of access to that highway which is known as an easement appurtenant. This is recognized as a property right. In State ex rel. State Highway Commission v. James, 356 Mo. 1161, 1168, 205 S.W.2d 534, 537, this court said: “The fee to land taken for right-of-way remains in the abutting owners, subject to the right of the State to constuct and maintain a highway for the public use. In addition to an interest in the fee, abutting owners have an easement of access from their property to the highway. This constitutes a property right, an interest in land.” The writers of some Law Review articles have speculated as to the origin of this right and just what its fate should be as compared with the rights of the general public in the establishment of modern limited access highways. We need not concern ourselves therewith, however, because both appellant herein and the majority opinion recognize the existence of this property right.

Secondly, we have an additional premise that if this right of access is extinguished, the abutting property owner is entitled to compensation. Appellant’s brief states: “We agree that a property owner abutting upon an existing conventional type highway has a right of access which is a property right. We also agree that if this right is taken, the owner is entitled to any decrease resulting in the value of his property from that taking.” The majority opinion states: “Of course, a complete blocking of an abutter’s access takes from him a property right in the nature of an easement and this requires resort to eminent domain.”

A third agreed premise is that the State, under its police power, has the right, for reasons of safety, to control traffic by such actions as providing for one-way traffic, prohibiting “U” turns or left turns, erecting divider strips, controlling speed, and like actions.

A fourth agreed premise is that the abutting property owner has no property right in traffic. Thus, if the State should build a new highway at a new location, leaving the existing highway as it was, the abutter has no claim by reason of the fact that traffic has been diverted to the new highway.

The problem then becomes one of applying these agreed principles to the facts and reaching a conclusion as to whether what the State has done has been merely to exercise its right to control traffic under the police power without taking the property owner’s right of access, or whether what the State has done takes or destroys the abutting property owner’s right of access.

The majority opinion reaches the conclusion that the construction by appellant of the so-called outer roadway on the principal right-of-way (when this term “principal right-of-way” is used herein it means the wide main right-of-way on which the thruways are located) in front of the Mohr property preserves their pre-existing right of access. In so holding the majority opinion adopts the position of appellant as expressed in argument before this court that when the abutting property owner is permitted to cross the property line between his property and the highway .right-of-way and proceed on a roadway provided thereon, he is accorded his right of access, and everything the State does thereafter to control traffic is an exercise of the police power, for which no compensation is due. The majority opinion states it in this manner: “In this case, respondents have been furnished unrestricted access to a lane of the highway, an outer road on its right of way, along the entire front of their property. Therefore, any compensation resulting from this situation would have to be for circuity of travel rather than for loss of access to the highway.”

In the argument before this court at this session of the case of State ex rel. State Highway Commission v. Meier et al., 388 S.W.2d 855 (hereinafter referred to as the Meier case), decided simultaneously herewith, the Chief Counsel for the State Highway Commission undertook to delineate the State’s position with reference to this question of access of abutting property owners in these limited access highway situations. The Meier case involved substantially the same question as is involved herein. The Chief Counsel explained that when an access road is located on the principal right-of-way, it is known as an “outer roadway.” When the access road leaves the principal right-of-way, it immediately loses its designation as an “outer roadway” and becomes a “service road.” The latter might be a road constructed or located entirely off the principal right-of-way or it might be a continuation of an “outer roadway” which leaves the principal right-of-way. This is true even though it leaves the principal right-of-way only a few feet. The State’s policy, as enunciated in the argument of the Meier case, is that an abutter who has an “outer roadway” in front of his property can cross onto the principal right-of-way and has lost no access, but an abutter who is served by a “service road” (and has no “outer roadway” in front of his place) has suffered a complete loss of access and is entitled to just compensation.

The Chief Counsel gave an illustration of a “service road” in which the State acquired an easement which joined but was not a part of the principal right-of-way. On it the State constructed a “service road” which ran parallel to the principal right-of-way to a point of intersection with a county road which in turn crossed the limited access road via an overpass. There was no interchange at that point and the owner would have had to follow a more circuitous route but concededly would reach an interchange eventually. The Chief Counsel stated that this was a “service road,” not an “outer roadway,” and an abutter would be entitled to compensation. Obviously, the same would be true even if an interchange were added at that overpass, because the test of the State is whether the owner has an “outer roadway” or a “service road.”

Application of these principles illustrates, in my judgment, the fallacy in the position of appellant and the majority opinion in holding that there is no loss of access where there is an “outer roadway” in front of the property of the particular abutting property owner. For example, assume in this particular case that the State Highway Commission, instead of building an “outer roadway” on the right-of-way in front of Mohr, had constructed a “service road” which ran parallel to the thruway but which ran along the back side of Mohr’s filling station. The Mohr property thus would be located between the right-of-way on which the thruways were constructed and the “service road.” Assume further that said “service road” was built exactly parallel to the thruways and went to Wright City on the east and Warrenton on the west, at which places it would be possible to enter or leave the thruways via the interchanges constructed at those two points. Under this assumed set of facts, the Mohrs would travel identically the same distance to get to either Warrenton or Wright City, and would travel identically the same distance to enter the thruway at either War-renton or Wright City. The only difference would be that the access road would not be on the principal right-of-way. However, in view of the fact that the Mohrs, in this hypothetical situation, would not be able to actually enter an access road on the main right-of-way in front of their premises, they would be held, under the position of appellant, to have suffered a complete loss of access for which they would be entitled to compensation. The construction and existence of the “service road” would simply be in mitigation of their damages which they would have suffered if their property had been landlocked, with no access road provided. Under the circumstances, to conclude that the Mohrs, when served by the “service road” running south of their property and separated a few feet from the main right-of-way, in the hypothetical situation, are entitled to compensation on the basis of loss of access, whereas the Mohrs, when served by the “outer roadway” on the main right-of-way, have suffered no loss of access, is to find a distinction where there is no real difference. The fallacy in this position can be dramatized even more under the following hypothetical set of facts: Suppose that the appellant built on the main right-of-way an “outer roadway” in front of the Mohrs, and then shortly after leaving the boundary of the Mohr property, the “outer roadway” leaves the main right-of-way, and thereafter via a “service road” goes to Wright City to the east and to Warrenton on the west. This might be a “service road” which went fairly directly or by a more circuitous route. In either event, the application of the philosophy of appellant and the conclusions of the majority opinion would mean that the Mohrs have suffered no loss of access since they are served in front of their property by an “outer roadway.” At the same time, an abutting property owner adjacent to Mohr but served by the “service road” as it leaves the main right-of-way would be recognized to have had his right of access destroyed, for which he would be entitled to compensation. In this instance, the property owners cannot, as the Chief Counsel expressed it, “step across” from their property onto the principal right-of-way. Instead, they must go onto the “service road” and thence to the interchange. This means, according to the position of the State Highway Commission, that this property owner has lost his right of access even though he travels identically the same access road as the Mohrs.

The fact that appellant recognizes that the moment the access road leaves the principal right-of-way, it becomes a “service road” and no longer is considered by them a part of the highway, illustrates the true nature of this access road. In some instances such road might leave the main right-of-way at points and then return again, and this might be repeated at other points. Surely, under such circumstances, the same identical access road cannot be a part of the main highway (an integral part of one facility, as the appellant’s brief expresses it) in some instances and not in others, dependent merely on whether at that point it happens to lie within or without the limits of the principal right-of-way. This illustration serves to put the access road in its true light, and to demonstrate that it is not in fact a lane of the main highway. Both of the property owners in our assumed situation are on a pre-exist-ing highway. Both are prevented from entering the thruway in front of their place of business. Access to the highway has been eliminated for both property owners. The State has provided an access road whereby they can reach the highway at an interchange. Each must travel the same access road to reach the same interchange. The sole and only difference is that in one place the access road runs on the principal right-of-way and in other places it does not, and it is denominated an “outer roadway” or a “service road,” depending on the place where it is located. The owner on the “outer roadway,” according to the State and the majority opinion, has suffered no loss of access and is entitled to no compensation. The one on the “service road,” according to the State and as a necessary corollary of the majority opinion, has had a complete loss of access, for which he would be entitled to compensation. I am of the opinion that this distinction is completely untenable. It seems to me that it erroneously assumes the fact that the access roadway is another lane of the main highway merely because it is located on the principal right-of-way.

Admittedly, it is difficult to draw a clear line of distinction between what is exercise of the police power and what should be acquisition by eminent domain, and what is loss of access and what is loss of traffic only. Loss of access necessarily involves loss of traffic, but loss of traffic need not necessarily involve loss of access. The fact that there is loss of traffic does not mean the owner has no loss of a property right, if there is also a loss of access. It might be helpful to note what is said in 43 Iowa Law Review, pages 258, 264, where it is stated: “It is recognized, however, that while traffic regulations are held to come under the police power, they are directed to people already using the highway and only indirectly affect the abutting owner’s right of access. The controlled-access facilities statute, on the other hand, is directed solely against the right of abutting owners to unlimited access to the highways.”

This difficulty of handling the question of access rights of abutting property owners is illustrated by the variation in policy of state highway departments in dealing therewith. An article in 56 Northwestern University Law Review, page 587, entitled “Frontage Roads: To Compensate or not to Compensate,” states on pages 600 and 601 that a survey indicated that twenty-two states compensate a landowner who formerly abutted the main highway when placed on a frontage road. It shows further that twenty-one states (including Missouri) do not compensate the landowner under those circumstances. There were varying positions in other states.

An examination of the condemnation petition herein sheds some light on whether the State actually was condemning a right of access in this case. Paragraph 3 of that petition recites that the Chief Engineer of appellant has recommended to the Commission that access to, from and across part of the highway be fully limited as shown on the plans, and that a copy of the plans for the part of the highway involved in this condemnation proceeding is filed in the Clerk’s office and made a part of the condemnation petition by reference. Paragraph 5 of the petition states as follows : “Relator has, in compliance with law, found, determined and declared that public interest and safety require that direct access and right of access to, from and across said section of state highway be fully limited as indicated on said plans, that no abutting owner shall have the right of direct access to said highway or its right-of-way except that access will be permitted to any adjacent outer-roadway to which access is not specifically prohibited by the special symbol denoting ‘No Right of Access’ as shown on said plans.” Paragraph 6 recites that the lands being condemned “or rights in which are being affected or extinguished, and which are described herein” lie in Warren County. Paragraph 7 recites that the Commission has been unable to agree with the owners on compensation “of the lands, property and rights herein described.” Paragraph 8 then says that for the construction of the highway it is necessary to acquire the lands, properties “or rights” and that the Commission has so determined and directed the Chief Counsel to purchase or condemn same. Thereafter various paragraphs describe the interests of various defendants, and Paragraph 23 refers to the property in this condemnation suit and it contains the language, “all direct access to the thruway of which from abutting property will be prohibited or limited except as herein set out.” Thereafter in Paragraph 34 in the prayer of the petition, the Commission asks that the “land, properties or rights herein described” be condemned.

I would assume that everyone would agree that a condemnation proceeding is not involved in or necessary to an exercise of the police power. If, for example, the Highway Department decides to erect a median strip down the middle of the highway, it goes ahead and does it. In this instance, however, these various allegations in the condemnation petition establish the fact that the limitation or extinguishment of the rights of access was by condemnation. This could be done only on the basis of payment of whatever is just compensation for the lands, properties or rights thereby acquired.

I do not deem it necessary to review or discuss all of the various cases cited in the majority opinion herein or in the majority opinion in the Meier case. The applicable legal principles really are not in dispute. The differences arise in a consideration of the facts and the application of the legal principles thereto. I am not convinced that the result of the conclusions herein expressed is to overrule earlier Missouri cases or to reach a conclusion necessarily inconsistent therewith. It is possible to reason by analogy therefrom, as the majority opinions herein and in the Meier case have done, but I do not find any case which rules the question of whether an “outer roadway” is sufficient to prevent the abutting owner from suffering a loss of his right of access. The case of State ex rel. State Highway Commission v. Vor-hof-Duenke Company, Mo., 366 S.W.2d 329, involved a situation where an existing highway was being converted to a limited access highway, and the opinion says the landowner was to be served by “a service road, or outer roadway.” Language in the opinion at least implies a recognition of a change in access and the opinion holds that it was inappropriate in an instruction on special benefits to refer to the owner’s property as located “directly on an improved highway,” but the appeal was by the landowner and did not involve specifically the question with which we are concerned.

In my judgment, an analysis of the nature of the access road as hereinbefore set out illustrates that the abutting property owner has suffered a loss of access. If the result I would reach is inconsistent with the rulings in any of the previous Missouri cases, then to that extent, and to that extent only, I would overrule or modify those cases.

I would affirm the judgment.

      . In State ex rel. State Highway Commission v. Vorhof-Duenke Company, Mo., 366 S.W.2d 329, 335, wherein the petition contained similar language, this court said: “Where, as here, the eon-demnation of existing rights of access are involved, the ascertainment of special benefits to the landowners’ damages becomes even more complicated.”


author: WELBORN, Commissioner.

text:
    William P. DOUGHERTY and William L. Smith, Respondents-Appellants, v. John R. DUCKWORTH, Rosemary Duckworth and Emma Wenzel, Appellants-Respondents.
    No. 50733.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.

      Benson Cytron, Weber & Cytron, House Springs, for defendants, respondents-appellants.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for appellants-respondents.
   WELBORN, Commissioner.

This is an action to establish a purchase money resulting trust in 120 acres of real estate located in Jefferson County, Missouri. (We will refer to the parties as they appeared in the trial court.) The plaintiffs, William P. Dougherty and William L. Smith, claim to have furnished the money for payment of the purchase price of the property. Title to the property was taken in the names of the defendants John R. Duckworth and Rosemary Duckworth, his wife. Defendant Emma Wenzel is the grantee of a subsequent deed to the property by the Duck-worths. In addition to seeking a declaration of a resulting trust in their favor, plaintiffs sought to set aside the deed to Wenzel and to quiet title to the property in themselves. The trial court found a resulting trust for the benefit of plaintiffs in a three-fourths interest in the property. The remaining one-fourth interest was found to be in the Duckworths. The plaintiffs have appealed from the decree, contending that they should be declared the owners of the entire beneficial interest in the property. The defendants have appealed on the grounds that the evidence does not support a finding of a resulting trust in favor of the plaintiffs for any interest in the property. We have jurisdiction of the appeal because title to real estate is directly involved. Davis v. Roberts, Mo.Sup., 295 S.W.2d 152, 154(1).

Plaintiff Dougherty, a 43-year-old plant superintendent, became acquainted with defendant John Duckworth at some unspecified time when Duckworth stopped at Dougherty’s house to see about remodeling the house and chicken house into an apartment. The exact nature of Duck-worth’s business does not appear, but the inference from the testimony is that he was a builder or a contractor.

Subsequently Dougherty and Duckworth discussed the possibility of constructing a retirement center. After “several discussions at my kitchen table, over coffee,” Dougherty and Duckworth decided that the latter should look for some property which might be developed for this purpose. Dougherty told Duckworth he could get enough money together to finance the project.

Duckworth located the 120-acre tract here in question. He and Dougherty went out to examine it. Dougherty told Duckworth to offer the owner, Pete Miller, $17,500 for the property and to give Miller a $50 check for earnest money “because that was all I had in the bank.” The next day Duckworth told Dougherty that he had given a $200 check as earnest money because he wanted to acquire the property for his own use. However, a week or two later Duckworth told Dougherty he could not handle the purchase himself and that he needed $200 to cover the check he had given because he did not have that amount on deposit in the bank on which the check was drawn.

At sometime, whether after or before the locating of the property does not appear, Dougherty had interested plaintiff Smith and Clyde Elrod in the retirement center idea. Smith was apparently at that time a foreman in the same plant in which Dougherty was employed. At the time of the trial Smith was a funeral driver. El-rod’s business does not appear. Smith told Dougherty that he had $1,000 to put up as earnest money to purchase the land. Eventually Dougherty called upon Smith for this amount, which Dougherty received and turned over to Duckworth.

Again the sequence of events is not entirely clear, but at some stage of the project the idea of a joint enterprise took shape in which Dougherty, Smith and Elrod would supply the purchase price of the land and Duckworth would supervise the construction of the necessary facilities thereon in return for which each participant would have a one-fourth interest in the enterprise. The arrangement was never reduced to writing.

The purchase of the land was completed and the transaction closed in July, 1961. The contract of sale was not introduced in evidence. Dougherty testified that the sale price was $17,000 or “might have been $17,500.” Smith’s $1,000, $3,200 contributed by Dougherty and $3,000 by Elrod were turned over to Duckworth and applied on the purchase price. In addition, a loan of $10,000 was made from the Webster Groves Trust Company secured by a deed of trust on the property. The proceeds of the loan were used to pay the balance of the purchase price. Title was taken in the name of the Duckworths and they also executed the note or notes for the $10,000 indebtedness and the deed of trust given to secure it. Plaintiffs testified that Duckworth put no money into the purchase.

The plaintiffs’ explanation for placing the title in Duckworth’s name was that, since he had signed the sale contract, the plaintiffs thought that more time might be required in order to change the transaction into the name of the four individuals, so they went through with the purchase and placed the property in Duckworth’s name. Apparently neither of the plaintiffs nor Elrod consulted an attorney regarding the transaction and their testimony showed a considerable reluctance to seek legal advice.

Subsequent to the transfer of the property Smith, from August 10, 1961 to March 5, 1962, issued nine checks in the amount of $85 each, payable to Dougherty, who in turn endorsed them to Duckworth who in turn applied the proceeds in payment of monthly installments on the $10,000 indebtedness. When some problem arose about Duckworth’s making the payments, Smith issued checks directly to the Webster Groves Trust Company. Nineteen such checks were issued from April 11, 1962 through November 15, 1963, each in the amount of $85.75. Apparently this was the correct amount of the monthly payments. There is some intimation that Duckworth made up the 75‡ deficiency in the $85 checks delivered to him. There is also some intimation that Duckworth paid one monthly payment, although Smith made a remittance to pay the obligation falling due in the same month. The evidence was that Duckworth’s payment was from the proceeds of the sale of lumber which “we authorized to let Duckworth cut * * * to pay taxes.”

Dougherty agreed with defendants’ counsel’s statement that the retirement center project “never got off the ground.” Dough-erty made one attempt to obtain financing for the project, but failed. He also had several discussions with an architect about plans for the development, but apparently the parties were never able to agree on either the size of the development or the plans therefor.

At some stage in the project (according to the petition in September, 1961), the proposal was advanced that the real estate be transferred to a corporation to be known as John Duckworth Enterprises, Inc., in which each of the four principals would own one-fourth of the capital stock. Apparently articles of incorporation for this purpose were prepared, but Duckworth declined to go along with the idea. There was some discussion about “buying out” Duck-worth, but no agreement with him was reached. Smith did “buy out” Elrod, paying the latter $2,200 for his share of the enterprise.

In April, 1963, the Duckworths, without prior notice to the plaintiffs, transferred the property to Emma Wenzel. Wenzel had been employed as a secretary in a law office with which the Duckworths’ attorney had formerly been associated. This action followed, the petition being filed April 16, 1963.

The Duckworths and Wenzel as appellants contend that the decree of the trial court establishing a resulting trust in favor of the plaintiffs for three-fourths interest is unsupported by the evidence. They contend that the testimony regarding the proposal that each of the four original parties to the transaction should become the owner of one-fourth interest in the real estate is unenforceable by reason of the statute of frauds. Section 456.010, RSMo 1959. They further contend that the evidence does not show that Dougherty, Smith and Elrod contributed a share of the purchase price sufficient to warrant the finding of a one-fourth interest in them. They contend that there is no evidence to show that the contributions of each of them equalled one-fourth of the purchase price and therefore no resulting trust of that share may be found. They also contend that the plaintiffs failed to show that they are entitled to a resulting trust in any part of the property because they fail to show what proportion of the purchase price the plaintiffs actually contributed. This contention is based on the theory that the plaintiffs’ evidence failed to establish the purchase price for the property and therefore no proportionate share may be computed.

Plaintiffs on the other hand contend that the evidence established a purchase money resulting trust, that the evidence showed that the plaintiffs either paid or obligated themselves to pay the full purchase price and that Duckworth, having breached the agreement by endeavoring to transfer the property without the consent of the plaintiffs, forfeited his right to any share in the real estate. Therefore, according to the plaintiffs, the trial court should have found them owners of the entire beneficial interest of the property.

“ ‘Where a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person by whom the purchase price is paid, except as stated in §§ 441, 442, and 444.’ ” 2 Restatement, Trusts, 2d, Sec. 440, p. 393. Williams v. Ellis, Mo.Sup., 323 S.W.2d 238, 240(2).

“We have recently stated that ‘ “a resulting trust must arise, if at all, at the instant the deed is taken. Unless the transaction is such that the moment the title passes the trust results from the transaction itself, then no trust results. It cannot be created by subsequent occurrences.” Bender v. Bender, 281 Mo. 473, 220 S.W. 929, 930 * * *. “A resulting trust, as distinguished from an express trust, is one implied by law from the acts and conduct of the parties and the facts and circumstances which at the time exist and attend the transaction out of which it arises.” Little v. Mettee, 338 Mo. 1223, 93 S.W.2d 1000, 1009(8); James v. James, Mo.Sup., 248 S.W.2d 623, 627(10). “As between strangers, a purchase-money resulting trust arises against the grantee of real property in favor of the payor of the purchase money unless it was the payor’s intent that no such trust should arise; but the presumption of a resulting trust is rebuttable. * * * This presumption is based upon the sound principle that, absent evidence to the contrary, it is not the intent of any such payor to make a gift to the grantee.” Ferguson v. Stokes, Mo.Sup., 269 S.W.2d 655, 659,' Davis v. Roberts, supra, 295 S.W.2d 152, 157. It is also well settled that the evidence required to establish a resulting trust must be clear, cogent and convincing. Dunlap v. Dunlap, Mo.Sup., 218 S.W.2d 108. If a resulting trust is established in a case where a person pays only a part of the purchase price the person so paying acquires a pro tanto interest in the real estate. Davis v. Roberts, supra.” Isenman v. Schwartz, Mo.Sup., 335 S.W.2d 112, 116(2-7).

The plaintiffs’ evidence, although essentially uncontroverted, is somewhat vague and indefinite. However, it does warrant the conclusion that Dougherty, Smith and Elrod contributed $7,200 to the purchase price of the property prior to its acquisition. There being no testimony on behalf of the defendants to rebut the presumption of the resulting trust arising from such payment, such trust would have arisen in the proportion which the amount so contributed bore to the purchase price.

We reject the defendants’ contention that the evidence shows that the money was advanced to Duckworth by way of a loan. Dougherty testified that Duckworth had offered a note prior to taking the title and that he told Duckworth he did not want one. Duckworth said, “I can’t understand * * * this is the first time, that I’ve ever heard of anything like this * * In our opinion this testimony is insufficient to show that the advance of the $7,200 was intended as a loan to Duckworth. In fact, Dougherty’s declining a note indicates that the payor did not intend the advance as a loan and his intention is the significant factor in a case such as this. 2 Restatement, Trusts, 2d, Sec. 441, p. 396.

The trial court found that, according to the agreement among the parties, the plaintiffs were to supply all the money “that is to purchase the real estate and furnish the materials for the construction of the Center.” (We find no evidence regarding purchasing material for construction of the center, but, in any event, such finding is immaterial so far as the present action is concerned.) The court further found that the plaintiffs supplied the monthly payments on the mortgage. However, the testimony regarding any agreement or understanding relative to the payment on the mortgage was extremely vague. In his testimony Dougherty stated, with respect to the purchase price, that he was to advance one-fourth, Elrod one-fourth and “Smith was going to put in $1,000 plus making monthly payments.” In another place Dougherty stated: “Bill (Smith) would be making the monthly payments, * * * I’d be making a portion of the monthly payments and John Duckworth would work out his 14 interest.”

We find in this testimony no evidence of an agreement among the plaintiffs and the Duckworths that the plaintiffs were to make the monthly payments and that the Duckworths were to be relieved of any liability on the indebtedness in their names. The plaintiffs point to no evidence in this regard. They merely state that the plaintiffs “obligated themselves” to pay the monthly installments on the indebtedness. They point to no specific testimony as evidencing such obligation and apparently rely on the fact that money for the payments was supplied by Smith. There is no evidence that Duckworth was in any manner a party to an agreement whereby the plaintiffs were to make the monthly payments. There is no showing of any dealings with the lender of the money and no evidence that the bank understood it was to look to the plaintiffs for the monthly payments. In fact, although there is some indication that the source of the money for such purpose was timber which he cut from the land, Duckworth, according to the plaintiffs, paid one installment on the indebtedness which would appear to be inconsistent with an unconditional obligation to pay by the plaintiffs. In addition, although the amount is minor, Duckworth apparently made up the difference between the amount Smith furnished and the amount due on the first nine payments. We conclude that the plaintiffs have failed to establish the. facts necessary to show a resulting trust arising by reason of the payments on the indebtedness. Davis v. Roberts, Mo.Sup., 295 S.W.2d 152, 156-157(10, 11). “Where the transferee undertakes an obligation to the vendor to pay the purchase price, and another person at the time of the purchase does not agree with the transferee to pay the purchase price to the vendor, or to contribute to the payment, a resulting trust does not arise in favor of the other even though he subsequently pays the purchase price or assumes an obligation to pay it.” 2 Restatement, Trusts, 2d, Sec. 456, Comment h, pp. 431-432.

Therefore, the only resulting trust established by the plaintiffs’ evidence was that which arose by reason of their contribution to the cash payment applied toward the purchase of the property prior to the time of its acquisition. There is no evidence to support a finding that such contribution equalled or exceeded one-fourth of the purchase price. The oral arrangement that Dougherty, Smith and Elrod were each to have a one-fourth interest in the property is unenforceable by reason of the statute of frauds. Sec. 456.010, RSMo 1959, V.A.M.S. Woodard v. Cohron, 345 Mo. 967, 137 S.W.2d 497, 498; Mays v. Jackson, 346 Mo. 1224, 145 S.W.2d 392, 398(10). Therefore, plaintiffs are entitled to a resulting trust only in the proportion that their contribution bore to the total purchase price. 2 Restatement, Trusts, 2d, Sec. 454, Comment i, p. 421.

Plaintiffs contend that Duckworth’s failure to go through with the plan of incorporation and to transfer the title to the corporation and his subsequent transfer of the property to Wenzel breached the agreement whereby he was to receive a one-fourth interest in the property in return for his services, and that, having breached the agreement, Duckworth is not entitled to any share of the property. This is not an action for breach of the alleged agreement or for its specific performance. Any such action would present obvious problems with respect to the statute of frauds. We are concerned here with what interest plaintiffs acquired by reason of their contribution to the purchase price of the property. That interest arose at the time of the transfer and cannot be enlarged by the subsequent violation by the alleged trustee of an unenforceable oral agreement with respect to the title to the land.

Plaintiffs also assert that Duck-worth’s failure to testify justifies the inference that the transfer to Wenzel was made with the intent to defraud plaintiffs. Again, assuming that the transfer was made with such intent, it might give rise to a constructive trust between plaintiffs and Wenzel, but only as to the interest in the land which plaintiffs had prior to the transfer. Consequently any unfavorable inference in such regard cannot benefit plaintiffs in this action.

We also reject defendants’ contention that any trust which existed was for the development of the property for a retirement center and that when that project was abandoned by the parties, plaintiffs may not recover a resulting trust and their remedy is by reimbursement only. Defendants cite 89 C.J.S. Trusts § 123, p. 979, in support of this contention. If the rule there stated has any general application, it is not to a case such as this. The only case cited in Corpus Juris Secundum in support of the proposition urged (Hewson v. Charles P. Gillen & Co., N.J. Ch., 142 A. 250) involved facts far different from those here presented.

Ordinarily we would formulate the decree to be entered in this case. However, because the plaintiffs’ evidence of the purchase price is indefinite, tending to support three different figures, $17,000, $17,200 and $17,500, we are unable properly to calculate the plaintiffs’ interests. There must be better evidence available to establish the purchase price than that which the plaintiffs presented. We, therefore, will remand the cause to permit additional evidence to be presented to establish the purchase price. Upon the proof thereof, Dougherty will be entitled to a resulting trust in the proportion which his $3,200 contribution bears to the purchase price. Smith will be entitled to a resulting trust in the proportion which the $4,000 he and Elrod combined contributed bears to the entire price. In this respect we reject the defendants’ contention that, in view of El-rod’s testimony that the $3,000 which he furnished was the product of a loan on property owned by him and his wife jointly, his wife must be held to share jointly in any interest which resulted to Elrod and that the attempted transfer by Elrod alone of his interest to Smith is ineffective. The payor claiming a resulting trust must show that the money used to pay the purchase price was his money, but only that it was his money as against the grantee. Here such was shown and we need not concern ourselves with what, if any, arrangement existed between Elrod and his wife regarding the loan. In holding that Smith is entitled to a share based upon payment by himself and Elrod, we also note that the defendants on the appeal have not urged the objection made at the trial to testimony regarding the transfer on the grounds that it represented an oral transfer of an interest in a trust in real estate.

Smith may also elect on remand to assert a claim for reimbursement based upon the payments which he has made on the indebtedness and also for subrogation to the rights of the holder of the deed of trust with respect to the payments so made. We are not authorized on the record here to determine his rights in such regard. Davis v. Roberts, Mo.Sup., 295 S.W.2d 152, 158.

The interests of the plaintiffs will, of course, be subject to the lien of the deed of trust. However, as between plaintiffs and the Duckworths, the obligation is that of Duckworth.

No objection having been made to the portion of the judgment setting aside the deed from Duckworth to Wenzel, that portion of the judgment is affirmed. The remainder of the judgment is reversed and the cause remanded for further proceedings in accordance with this opinion and the entry of a new judgment thereafter as herein directed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.

      . Defendants do not contend that the fact plaintiffs actually became involved in the purchase subsequent to the contract of sale prevents any resulting trust in their favor. See IV Scott on Trusts 2d, See. 457, p. 3087; Hernandez v. Prieto, 349 Mo. 658, 162 S.W.2d 829. Generally, our cases make the time that the deed is taken the time as of which rights are to be determined. Lehr v. Moll, Mo.Sup., 247 S.W.2d 686; Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377.