author: SHANGLER, Presiding Judge.

text:
    Lacy GORMAN and Sally Gorman, Appellants, v. STATE HIGHWAY COMMISSION of Missouri, Respondent.
    No. KCD 28310.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.

      Charles F. DuFour, Carter & Becker, P. C., Clayton, for appellants.
    Bruce A. Ring, John W. Maupin, State Highway Commission, Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

This appeal comes from a judgment adverse to the Gormans on their petition to declare that the State Highway Commission abandoned a strip of land which abuts on frontage owned by the Gormans and to quiet title to that real estate in them.

The appeal argues that as a matter of law clear and cogent evidence proved nonuser and abandonment of Old Oliver Street Road and consequent reversion of title to the Gormans. We do not reach the merits. An antecedent question of jurisdiction, unnoticed by the parties, determines this appeal.

The land which the Gormans seek to have adjudged their estate — Old Olive Street Road — lies in St. Louis County. The action to declare and quiet title of the abandoned street in the Gormans was brought in Cole County. It is the express provision of § 508.030, RSMo 1969, that:

Suits for the possession of real estate, or whereby the title thereto may be affected, . . shall be brought in the county where such real estate, or some part thereof, is situated.

The venue which this statute defines for actions which affect title to real estate is mandatory and cannot be waived. Sisk v. Molinaro, 376 S.W.2d 175, 177[1] (Mo.1964).

A suit to quiet title is a special statutory action which adjudges the respective estates, titles and interests of the several claimants. La Presto v. La Presto, 308 S.W.2d 724, 726[1] (Mo.1957). The appellants Gorman seek to divest title to Old Olive Street Road out of the State Highway Commission and into themselves. Such a suit directly affects title to real estate within § 508.030 and falls for determination to the exclusive jurisdiction of the court of the county where the land lies. State ex rel. Gavin v. Muench, 225 Mo. 210, 124 S.W. 1124 (banc 1910). That is to say, § 508.030 not only precludes other venue for such actions but vests jurisdiction of the subject matter in that venue alone.

A lack of jurisdiction over the subject matter may not be waived, and though not raised by a party, may be examined on the mere motion of the court. Huffman v. Department of Revenue, 523 S.W.2d 107, 108[1] (Mo.App.1975).

We find that § 226.100 domiciles the State Highway Commission in Jefferson City. That statute is said to fix venue for actions against the Commission in Jefferson City. State ex rel. State Highway Commission v. Bates, 317 Mo. 696, 296 S.W. 418, 423[9,10] (banc 1927). That rule has exceptions. Thus, an action against the Commission for the inverse condemnation of land— as for a formal taking — is brought not in Cole County, but in the county where all or part of the land lies. That special venue is accorded to such proceedings by Chapter 523. State ex rel. State Highway Commission v. Swink, 537 S.W.2d 556, 562 (Mo. banc 1976).

It is evident that § 226.100 which fixes venue in Cole County for suit against the Commission means to serve the convenience of a busy public body which pervasive activities throughout the state. The venue requirements of § 508.030, however, affect more than convenience. They define jurisdiction and so admit of no exceptions. State ex rel. Gavin v. Muench, supra; Sisk v. Molinaro, supra, l. c. 177[2].

The judgment is reversed and remanded with directions that the petition be dismissed without prejudice.

All concur.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James C. MURPHY, Defendant-Appellant.
    No. KCD 28352.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SWOPFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

This appeal is a sequel to an earlier appeal to this court styled State v. Murphy and reported at 525 S.W.2d 609 (Mo.App.1975). Murphy had pleaded guilty to five felony charges but, before receiving sentence, was convicted of armed robbery in another court. He received a sentence for the armed robbery conviction some two weeks before the imposition of sentence upon the five felony charges. The trial court imposed consecutive sentences on the five felony charges, these sentences to be consecutive to the sentence Murphy received after conviction for armed robbery. This court affirmed the judgment of the trial court denying defendant’s motion to withdraw his guilty pleas to the five felony charges, but remanded the case to the trial court for the limited purpose of reimposing sentence since § 546.480, RSMo 1969, had been declared unconstitutional in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).

The trial court was directed to exercise discretion in deciding whether the sentences for the five guilty pleas should run concurrently or consecutively and to exercise discretion in deciding whether these sentences should run concurrently or consecutively to the sentence imposed after the conviction for armed robbery.

Upon resentencing, defendant was present and was sentenced in five separately numbered cases to five separate sentences, each consecutive to the prior sentence. These were exactly the same as the prior sentences but were unquestionably imposed in accordance with our mandate that the trial court exercise discretion on remand.

On this appeal, defendant makes the single point: “The trial court erred in forcing appellant to be convicted on several counts of the information in the same proceeding as the court rule allowing joinder of causes — Rule 24.04 — is an unconstitutional enactment in violation of Article V, § 5 of the Missouri Constitution.”

Rule 24.04 is not involved in this case, because the crimes to which defendant pleaded guilty were not charged in separate counts on a single indictment or information. Defendant pleaded guilty to five felony charges contained in four separate infor-mations and one indictment. State v. Murphy, 525 S.W.2d 609 (Mo.App.1975). He admits such in his statement of facts. Obviously the point has no merit, no error of law appears on this appeal, and an opinion would have no precedential value. The judgment is affirmed. Rule 84.16(b).

All concur.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Kenneth Ray STUEBINGER, Appellant.
    No. KCD 28389.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.
    Richard G. Poland, Cameron, for appellant.
    John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

Kenneth Ray Stuebinger was convicted of a felony under § 556.215, RSMo 1969, of striking a highway patrolman engaged in the performance of his duties. The jury assessed punishment at six months in jail and a fine of $1,000.

On this appeal Stuebinger attempts to challenge the refusal of one instruction and the giving of another. Affirmed.

Stuebinger does not challenge the sufficiency of the evidence. Trooper Johnson of the Highway Patrol went to Gallatin to assist the local officers with an affray which had broken out at a tavern. Johnson returned later to the scene and told Stue-binger he was under arrest. At this point Stuebinger grabbed the trooper by the shoulder and at the same time placed his hand around the trooper’s neck and started choking him. The choking became so severe the trooper was forced to his knees. The trooper tried to call for help, but because of the pressure exerted on his throat, was barely able to whisper. The trooper stated at this point he began to feel lightheaded because of the restriction of his oxygen intake. At this time a bystander came to the trooper’s assistance and succeeded in prying Stuebinger’s hands from his neck.

Stuebinger testified, and his version largely coincided with that of Trooper Johnson. He stated the trooper was trying to place him under arrest when he grabbed the trooper by the shoulder and neck and started to choke him.

Stuebinger’s brief first challenges the refusal of the court to give an instruction offered by him which attempted to submit a lesser included offense of a misdemeanor under § 557.210 or § 557.220, RSMo 1969. However, Stuebinger has not preserved this point for review. In his motion for a new trial he failed to comply with Rule 27.20(a) as construed in State v. Cheek, 413 S.W.2d 231, 238[17] (Mo.1967). In Cheek the court stated the motion is not sufficient to preserve the refusal to instruct on a lesser included offense if the motion “does not indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction.” In his motion for a new trial Stuebinger did not state what facts in evidence were sufficient to require the giving of an instruction which would authorize the jury to find him guilty of a misdemeanor.

Further in his brief Stuebinger does not set out the instruction which he claims the court erroneously failed to give. Under Rule 84.04(e) the brief is required to set out any instruction, either refused or given, of which complaint is made. For these reasons, the refusal to give Stuebinger’s proffered instruction has not been preserved for review. State v. Schulten, 529 S.W.2d 432, 434 (Mo.App.1975).

Stuebinger, for his second point, complains of the giving of an instruction, but, again, does not set out the instruction. For the reasons stated above, this point, likewise, is not preserved for review.

The court has reviewed the transcript for plain error under Rule 27.20(c). No error resulting in manifest injustice is found.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Thomas E. BURNSIDE, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28449.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

Defendant was originally charged by a two-count information with (I) rape and (II) kidnapping. On the day of trial, the trial court permitted an amended information to be filed which charged two additional counts, (III) robbery in the first degree and (IV) assault with intent to kill with malice aforethought. On a jury verdict finding defendant guilty on all four counts, he was sentenced to fifty years imprisonment on the rape charge, ten years on the kidnapping charge, ten years on the robbery charge, and life imprisonment on the assault charge, the sentences to run consecutively. He appealed to this court which set aside the convictions under Counts III and IY on the ground that the filing of an amended information on the day of trial, adding two different offenses to the original charges, was impermissible and constituted plain error. This court upheld the convictions under Counts I and II but remanded the case for resentencing in light of the then recent case of State v. Baker, 524 S.W.2d 122 (Mo. banc 1975) which had ruled that § 546.480 RSMo 1969, mandating consecutive sentences for defendants convicted under multiple count informations or indictments, permitted by Rule 24.04, unconstitutional. State v. Burnside, 527 S.W.2d 22 (Mo.App.1975).

Pursuant to the mandate of this court, the trial court resentenced defendant to fifty years for rape and ten years for kidnapping, said sentences to run consecutively. Thereafter, defendant filed a 27.26 motion seeking relief on the following grounds:

“(a) Denial of due process by trying mov-ant when circuit court had no jurisdiction.
(b) Denial of equal protection by trying movant when circuit court had no jurisdiction.
(c) Denial of due process by joinder of counts over which circuit court had no jurisdiction, thus making trial unduly oppressive.”

The facts alleged in support of these grounds were that defendant was:

“[tjried oh amended information filed with the trial court before preliminary exam, and which varied from original information substantially, charging two new offenses. Mo. Statutes provide no jurisdiction over case in circuit court until probable cause found by Magistrate witnesses.”

The trial court overruled the appellant’s motion without a hearing, and this appeal followed.

One point of error is urged on this appeal:

“The trial court erred in joining trial of Counts I with II of the amended information and Counts I and II with Counts III and IV of the amended information insofar as: (A) The rule allowing joinder— Rule 24.04 is an unconstitutional enactment (B) Joining trial of Counts III and IV — counts on which the trial court had no jurisdiction — with Counts I and II was unduly burdensome and oppressive in violation of appellant’s rights to due process of law; and (C) Joinder of Counts III and IV forced appellant to trial upon crimes which would be improperly considered by the jury.”

Although only one point is set forth in the Points and Authorities section of the brief and that is subdivided into three sub-points, defendant’s contentions really resolve into two distinct questions: (A) as to the constitutionality of Rule 24.04; and (B) whether the trial on the four counts was so oppressive as to deny due process. The first of those two points avails defendant nothing. It is an argument that Rule 24.04, allowing different crimes to be charged in different counts of a single information or indictment, is unconstitutional. Rule 24.04 is a procedural rule [State v. Baker, supra ] and is not unconstitutional. State v. Blaine, 528 S.W.2d 801 (Mo.App.1975); State v. McCollum, 527 S.W.2d 710 (Mo.App.1975); State v. Toney, 537 S.W.2d 586, 596 (Mo.App.1976).

The second proposition similarly avails defendant nothing for two reasons. First off, the mere claim in the 27.26 motion and on appeal that the joinder of Counts I and II with Counts III and IV was unduly burdensome and oppressive and violated defendant’s due process rights is a mere conclusionary statement. There are no facts alleged in the 27.26 motion (or in defendant’s brief) showing how such join-der was unduly burdensome or oppressive. A 27.26 movant must plead facts, which if true, would entitle him to relief before he is entitled to an evidentiary hearing. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974); Cruz v. State, 515 S.W.2d 610 (Mo.App.1974); Rowden v. State, 523 S.W.2d 102 (Mo.App.1975); Grisso v. State, 528 S.W.2d 158 (Mo.App.1975); Winston v. State, 533 S.W.2d 709 (Mo.App.1976). In light of his failure to plead such facts, the trial court was correct in denying defendant an evidentiary hearing.

The facts which defendant did set forth in support of his grounds for relief do not allege facts which show that the trial was unduly burdensome and oppressive. The facts alleged are in substance a regurgitation of the merit of his direct appeal. In that appeal the convictions under Counts III and IV, for which he had had no preliminary hearing before a magistrate, were overturned because they charged two new offenses and were included in an amended information filed for the first time on the day of trial, to the prejudice of appellant. Thus, any claim of constitutional error as respects those counts is moot. As to Counts I and II for which he was convicted, the defendant did receive a preliminary hearing before a magistrate. State v. Burnside, supra.

Secondly, it cannot be concluded as a matter of law that being tried on a multiple count information, some of which counts are subsequently held to be invalid, makes the trial unduly burdensome or oppressive because it places evidence of other crimes before the jury. This is for the simple reason that evidence of other crimes is not absolutely precluded from being introduced into evidence during criminal prosecutions. Such evidence is admissible whenever it is so linked in time or circumstance to the crime for which defendant is being tried that one cannot be fully shown without proving the other. State v. Cox, 508 S.W.2d 716, 723 (Mo.App.1974); State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877 (1931); State v. Shumate, 478 S.W.2d 328 (Mo.1972); State v. Larkins, 518 S.W.2d 131 (Mo.App.1974); State v. Torrence, 519 S.W.2d 360 (Mo.App.1975). Additionally, evidence of other separate and distinct crimes are admissible when it tends to establish motive, or intent, or absence of mistake or accident, or a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other or the identity of the person charged. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954); State v. Wing, 455 S.W.2d 457 (Mo.1970). Consequently, absent an allegation supported by facts, that evidence tending to show the crimes charged by the defective counts could not have been introduced on any of the aforementioned grounds, the mere statement that the joinder of valid and invalid counts proved burdensome and oppressive was not a ground for relief.

Affirmed.

All concur.


text:
    Lee S. SHRODER, Petitioner-Respondent, v. Bryan J. SHRODER, Respondent-Appellant.
    No. KCD 28563.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.

      Richard E. Watson, North Kansas City, for respondent-appellant.
    Robert C. Jones, Jones & McDaniel, Kansas City, for petitioner-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The decree of dissolution of marriage made division of the property in the manner and kind suggested by the parties, set apart other property to each of them, and awarded the wife an attorney fee. The decree also awarded the wife maintenance in gross of $12,000 payable in monthly installments of $150.

On this appeal the husband contends only that maintenance was adjudicated without the proof required by § 452.335.1, RSMo Supp.1975, that

In a proceeding for . . . dissolution of marriage . . . the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance
(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment .

The terms of the statute condition the award of maintenance on proof that the spouse lacks present means, from property allocated from the marriage — or employment — or other sources, to meet the reasonable needs of life. The marital property divided to her included about $1650 in cash, miscellaneous personal property valued at about $13,500, and real estate of the worth of $32,000. Her employment earned a net monthly wage of $389. The husband earned $1480 per month regularly and over the past five years made extra income from sheet metal work which netted about $7,000 altogether. This evidence satisfied the statutory condition for proof of the property and support available to the spouse who seeks maintenance, but shows nothing of her need for such an award.

The evident purpose of this statute to provide for the reasonable needs of the spouse, of course, cannot avail in the absence of proof of an actual need. The wife here made only the most general allusion to necessary expenditures, for “car repair, some medical, some dental, personal items but no amounts nor indication of expectation of recurrence, nor inability to meet these costs from property already available to her. In the absence of evidence of reasonable need, a maintenance award is not proved. Horridge v. Horridge, 542 S.W.2d 324, 325 (Mo.App.1976).

The cause is reversed and remanded to the trial court for redetermination of maintenance.

All concur.

      . These valuations are derived from the briefs of counsel. The decree merely recited the division of property without attribution of value. Since one premise for the grant of maintenance is lack of sufficient property, including the marital property apportioned by the decree [§ 452.335.1(1)], neither the trial court in the first instance, nor the appellate court on review, can adjudge the validity of the award without reference to the value of the marital assets allocated the spouse who seeks such relief. It would be of assistance to an appellate court for the trial court, either in the findings or judgment, to attribute the value found from the evidence for each marital property.


text:
    Joseph R. BARKO, Appellant, v. Salvatore G. MONTELEONE, Respondent.
    No. KCD 28762.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.
    David I. Westfall, Kansas City, for appellant.
    No appearance for respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   WASSERSTROM, Judge.

This suit originated in a Magistrate Court, where defendant suffered judgment by default. Upon sequestration of his salary due to him from Kansas City, Missouri, defendant moved to quash the execution and writ of sequestration and to set aside the judgment. That motion was overruled by the Magistrate Court. Defendant then appealed to the Circuit Court which granted the motion. Plaintiff now appeals that ruling. Defendant has filed no brief and the practice of this court is not to permit oral argument by a respondent who has failed to file a brief; plaintiff has waived oral argument; and accordingly this court now considers this appeal upon the basis of the record and plaintiff’s brief.

The theory upon which the Circuit Court sustained defendant’s motion was that there had been no valid service of summons. The facts in that respect are that the Magistrate clerk had prepared and delivered to the deputy constable two copies of the summons. One copy was the ribbon copy on the face of the summons and the face of the other copy was an impression through carbon paper. However, the clerk by error reversed the two papers when preparing the back side of the summons which contained the place for the constable’s return, so that the ribbon copy on the face was the carbon copy on the back and the other copy was a ribbon copy on the back but a carbon copy on the face.

The deputy constable served the copy which was the ribbon copy on the face and made return on the other copy. The Circuit Court held that Sections 517.110 and 517.-120 RSMo 1969 and Rules 54.13 and 54.20 require that the return be made on the original summons, not on a copy thereof, and that the service in this case was therefore defective. We disagree.

When a document is prepared in multiple copies, as with carbon paper, each copy becomes a duplicate original. As stated in Adler v. Ewing, 347 S.W.2d 396, l. c. 402 (Mo.App.1961), “a ‘duplicate’ is an original instrument repeated, or a document the same as another in the essential particulars and differs from a copy in being valid as an original.” This “duplicate original” rule is well established in the Missouri law. Anglo-American Mill Co. v. Twin City M. & Mfg. Co., 225 Mo.App. 329, 35 S.W.2d 982, 985 [1] (1931); Miller v. John Hancock Mut. Life Ins. Co., 155 S.W.2d 324, 328 [10] (Mo.App.1941); Land Clearance for Redevelopment Auth. v. Zitko, 386 S.W.2d 69, 80 [21] (Mo.banc1965). So the copy on which the deputy constable made her return in this case was as much an original as the one delivered by her to the person served.

This interpretation fully carries out the intention and purpose of the service rules which are merely to provide mechanics for bringing home notice to the defendant and to preserve a record of the act of service. See Ward v. Cook United, Inc., 521 S.W.2d 461 (Mo.App.1975).

Reversed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Lloyd Charles ZIMPHER, Appellant.
    No. KCD 28788.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.

      R. E. Moulthrop, Bethany, for appellant.
    John C. Danforth, Atty. Gen., Donald A. Purdy, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and SHAN-GLER and DIXON, JJ.
   SWOFFORD, Presiding Judge.

The appellant (defendant) was tried before a jury on the charge of possession and control of marihuana in a quantity exceeding 35 grams (Section 195.200-l(l)(b) RSMo 1969, as amended Laws 1975). The jury returned a verdict of guilty and assessed the defendant’s punishment at four years. After an unavailing motion for a new trial and allocution, the defendant was sentenced to four years under the supervision of the Department of Corrections, from which judgment he appeals. He asserts seven points or assignments of error, including three charging the trial court with error in overruling his motion for a directed verdict at the close of the state’s case. The defendant did not testify and offered no evidence.

It should here be restated that the appellate review in this case is restricted to a consideration of the whole record and consideration of the facts in evidence and the inferences that may be reasonably drawn therefrom in the light most favorable to the state, and all evidence and inferences in conflict therewith are to be disregarded. State v. Colthorp, 437 S.W.2d 75, 76[1] (Mo.1969); State v. Watson, 350 S.W.2d 763, 766[1] (Mo.1961); State v. Wishom, 416 S.W.2d 921, 923[1] (Mo.1967).

When so viewed, this record, in pertinent part, discloses:

On October 29, 1974, Melvin Smith, the Sheriff of Harrison County, Missouri, filed a sworn complaint in the Magistrate Court of such county asking that a search warrant be issued permitting him to search a dwelling house located at 604 North 17th Street in Bethany, Harrison County, Missouri for certain controlled substances (as specifically described therein) including marihuana or cannabis sativa. In support of such sworn complaint, Sheriff Smith filed his own affidavit and that of Gary Baker, a member of the Missouri State Highway Patrol, setting forth in specific detail the factual reasons for their belief that the premises was being used for the sale, use and distribution of various drugs within the statutory proscription of controlled substances.

In accordance with the complaint and supporting affidavits, Magistrate Loman, during the afternoon of October 29th, issued a “Search Warrant Authorizing Search for Controlled Substances” of the dwelling at 604 North 17th Street and placed it in the hands of Sheriff Smith for execution, return and inventory, as provided by law.

At approximately 3:20 a. m. the following morning, Sheriff Smith, Sergeant Baker and Corporal Stratton of the Highway Patrol, and other law enforcement officers, went to the premises on 17th Street for the purpose of execution of the warrant. Sheriff Smith testified that he chose the early morning hour to conduct the search because he felt there was a greater chance then to find the occupants of the house at home.

Sheriff Smith knocked on the door, identified himself as a peace officer with a search warrant and asked to be admitted. Receiving no response, he and another officer kicked the front door open and entered the house. Sheriff Smith found one Lyndal Lee Stewart in a bed in the front room. Highway Patrolmen Corporal Stratton and Sergeant Baker found the defendant and one Ronald Gail Johnson asleep in a bed in an adjoining bedroom and brought them into the front room and handcuffed them. All three were placed under arrest and read the Miranda warning. The Sheriff then inquired as to “Who was in charge of the house?” Johnson replied, “We all are, I guess. We make up money and pay the rent. I paid the rent the last time.” The defendant then said, “That’s right” and Stewart nodded his head in agreement.

During the ensuing search of the premises, Sergeant Baker found a bag of what appeared to be marihuana in a drawer of a chest of drawers located in the bedroom which was occupied by the defendant and Johnson and which was marked State’s Exhibit No. 1. Corporal Stratton found another bag containing a wood and brass pipe, cigarette papers and a plant material in the drawer of a night stand beside the bed in which the defendant and Johnson had been sleeping. This was marked State’s Exhibit 2.

The chain of custody of State’s Exhibits 1 and 2 is clearly shown and not seriously challenged. Highway Patrolmen Baker and Stratton turned these exhibits over to Sheriff Smith at the scene; the Sheriff turned them over to Sergeant Rhoades, evidence technician of the State Highway Patrol; Rhoades turned them over to Afton Ware, a forensic chemist employed by the Missouri Highway Patrol, who made certain examinations and tests of the material; upon the completion of these procedures, Ware returned the exhibits to Rhoades, who in turn delivered them back to Sheriff Smith; and Smith produced them at trial.

Afton Ware testified that he had worked as a forensic chemist with the Missouri Highway Patrol over 13 years. His duties were to make microscopic, chemical and physical analysis of specimens submitted to him for that purpose. In the course of his work he stated that he had made approximately 1300 examinations of marihuana, including marihuana seeds. Ware’s qualifications were admitted by the defense.

Ware testified that in November of 1974, he made an examination of the contents of the bag marked State’s Exhibit No. 1 (the bag found in the chest of drawers as previously related); that such contents weighed 35.0 grams; that the contents consisted of leafy material, hulls and seeds that had the physical appearance of marihuana; that microscopically the leafy material had a warty appearance, the presence of a “sisal of hairs” and secretions of resin. The seeds in this bag had the appearance of miniature coconuts with characteristic veins on the surface and a general oval shape. When questioned about the process of sterilization of marihuana seeds, he testified that this is done by a heat process in the course of which the hulls come off and which process leaves the seeds clean and smooth. He gave his opinion that State’s Exhibit No. 1 contained marihuana seeds and marihuana leaf particles.

Ware further testified that the bag marked State’s Exhibit No. 2 (the bag found in the drawer of the bedside table, as previously related) was also examined by him. It contained a pipe, cigarette papers and also plant material. The plant material weighed 8.0 grams. His examination of this material also led him to the opinion that it was marihuana. Ware also performed various chemical tests on the plant material and hulls from each exhibit which further confirmed that such material was marihuana.

He only conducted microscopic examination of the seeds but did not do the germination test, which consists of either planting the seeds or placing them in a moist, warm container. He gave as his expert opinion that the seeds in State’s Exhibit No. 1 were not sterile.

Prior to the trial, the defendant filed his motion to suppress the evidence of State’s Exhibits No. 1 and No. 2 upon the grounds that the search warrant was improper and illegally issued, and that the search and seizure of this evidence, under the warrant, was unreasonable and illegal. An evidentiary hearing was held on this motion prior to trial. At this hearing, the state introduced the Magistrate’s records as to the search warrant, as above described, and the testimony of Sheriff Smith. The defendant offered no evidence in support of his motion. The trial court overruled the motion and the defendant thereafter unsuccessfully asserted these same complaints in his motion for a new trial. The same points are raised on this appeal as Points I and II of the Points Relied Upon in his brief.

However, the record shows that when the state had its Exhibits No. 1 and No. 2, the fruits of the search and seizure so far as this case is concerned, marked and identified, no objection was lodged by the defense based upon these grounds. When these exhibits were offered into evidence (perhaps, as a matter of trial strategy), defense counsel stated: “I have no objection.” In this posture of the record, the defendant’s attack upon the validity of the search and seizure has not been preserved for review.

The rule is now firmly settled that where the validity of a search is questioned and the admission of the fruits of such search is sought to be suppressed in order to preserve any alleged error by reason of the admission of such evidence, the objection thereto must be raised at the earliest opportunity, kept alive by timely objection to the introduction at trial, and preserved by the motion for a new trial. Following the imperative force of previous decisions of the Supreme Court, this court so ruled in State v. Roberts, 530 S.W.2d 428, 431[1] (Mo.App.1975). See also, State v. Simone, 416 S.W.2d 96, 100[11] (Mo.1967); State v. Yowell, 513 S.W.2d 397, 402[1] (Mo. banc 1974); State v. Ealey, 519 S.W.2d 314, 320[5, 6] (Mo.App.1975), and cases cited therein.

The defendant’s failure to object and his agreement to the admission of State’s Exhibits No. 1 and No. 2 precludes appellate review of his Points I and II, and they are ruled against him.

By Point III of defendant’s assignments of error, he asserts that the court erred in overruling his motion for a directed verdict at the close of the state’s evidence upon the ground of the state’s alleged failure to prove that its Exhibits No. 1 and No. 2 contained proscribed marihuana which, by weight, exceeded 35 grams. This assignment is based upon the theory that the exception explicit in Section 195.010(20), RSMo 1969, as amended Laws 1975, excepts sterile marihuana seeds which are incapable of germination as proscribed substances.

Afton Ware, the forensic chemist (whose qualifications were admitted) very positively gave his expert opinion that the seeds in State’s Exhibit No. 1 were not sterile (and thus within the exception) and was explicit in his reasons for this opinion, as above summarized. The weight of this testimony was for the jury. Since he positively testified that the combined weight of the marihuana found in Exhibits No. 1 and No. 2 was 43 grams, and in view of the fact that the defendant offered no evidence to the contrary, the state met its burden on this point.

Moreover, the defendant (and the state) lose sight of the provisions of Section 195.-180 RSMo 1969, a part of the Uniform Narcotics Drug Act, wherein it is provided:

“In any * * * action or proceeding brought for the enforcement of any provision of this law, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this law, and the burden of proof of any such exception, excuse, proviso or exemption, shall be upon the defendant.” (Emphasis supplied)

The courts of this state have universally held that the burden of proof as to a statutory exception rests throughout with the defendant. State v. Virdure, 371 S.W.2d 196, 201-202[9] (Mo.1963); State v. McAllister, 468 S.W.2d 27, 29-30[4] (Mo.1971); State v. McCauley, 522 S.W.2d 152, 154—155[5] (Mo.App.1975); State v. Hubble, 494 S.W.2d 358, 362[6] (Mo.App.1973). The defendant here has not met this burden and his Point III is ruled against him.

Defendant’s Points IV, V and VI all deal basically with the same problem. He argues that the trial court erred in failing to sustain his motion for a directed verdict at the close of the state’s case (IV and V) and in submitting the case to the jury under Instruction 5 (VI) for the reason that the state’s evidence failed to make a submissi-ble case that the defendant knowingly had over 35 grams of marihuana in his possession or under his control.

Both possession and knowledge are essential elements of the crime, but both may be proved circumstantially. State v. Burns, 457 S.W.2d 721, 724-725[1-3] (Mo.1970). Actual physical possession is not necessary. Whatever difficulties heretofore existing with reference to controlled substances found on a “premises” as meeting the requirements of possession and control have been placed at rest in State v. Wiley, 522 S.W.2d 281, 292[20, 21] (Mo. banc 1975), where the court said:

“[20] In narcotics or controlled substance cases, the law has developed the policy that a person in exclusive control of the premises will be deemed to have possession and control of the substance found on the premises. The basis for this inference has recently been stated in State v. Funk, supra, at 360, [State v. Funk, 490 S.W.2d 354 (Mo.App.1973)] quoting from People v. Nettles, 23 Ill.2d 306, 178 N.E.2d 361, 363 (1961). * * Human experience teaches that narcotics are rarely, if ever, found unaccountably in a person’s living quarters.’
[21] The same principle that a person may be deemed to have possession of the substance found on the premises may be applied even when the defendant does not have the exclusive control of the premises, since there may be joint control with the same consequences as if there were exclusive control. But, states Funk, supra, at 361, if there is joint control then there must be some ‘further evidence or admission connecting the defendant with the illegal drugs.’ ”

There was ample evidence that the defendant, Johnson and Stewart were in joint control of the premises at 604 North 17th Street and that Stewart and the defendant shared the room in which the controlled substance was found. State’s Exhibit No. 1 was found in the room in a “chest of drawers” presumably used for the storage of their personal effects, and State’s Exhibit No. 2 was found in a “bedside stand” adjacent to the bed in which the defendant and Stewart were sleeping. These facts constitute “further evidence” (other than joint control of the premises) within the rule as stated in Funk, as approved and adopted in Wiley, supra.

As was said in State v. Brickley, 521 S.W.2d 16, 17[3] (Mo.App.1975):

“Actual possession is not necessary to sustain a conviction; constructive possession will suffice where, as here, other facts buttress an inference of defendant’s knowledge of the presence of drugs. One such incriminating fact is a defendant’s access to an area in which drugs are found. 56 A.L.R.3rd 946, et seq., State v. Worley, 375 S.W.2d 44[3] (Mo.1964).” (Emphasis supplied)

“Conscious possession” of drugs can be and usually is supplied by circumstantial evidence. State v. Davis, 515 S.W.2d 773, 777[4, 5] (Mo.App.1974).

The fact that Stewart was also using the sleeping room and also had easy access to the marihuana does not destroy the applicability of the inference of knowledge of the defendant. State v. Lockhart, 501 S.W.2d 163, 164[1] (Mo.1973).

The factual issue of defendant’s conscious or knowing possession of the drug was thus in the case and was properly submitted to the jury under Instruction No. 5, which is MAI-CR 14.10. The authorities cited by defendant in support of his Points IY, V and VI have been carefully reviewed and none of them are at war with the general principles of law as herein noted and followed. Each of them is factually distinguishable and inapposite to the facts of this case. Each case must be decided upon its own facts. Defendant’s Points IV, V and VI are ruled against him.

Defendant’s last point (VII) is presented without citation of authority. He asserts that the court erred in overruling his motion for a new trial because the jury’s verdict was the result of speculation, conjecture and confusion, and of bias and prejudice against the defendant, and was not a fair expression on the part of all the jurors. In the argument portion of his brief, defendant restates his position that the state’s evidence failed to establish that the defendant was shown to have sole and exclusive and knowing possession of marihuana in excess of 35 grams. These contentions have been fully covered above.

Additionally, the defendant complains that when the jury first returned and announced it had reached a verdict, the foreman handed the court three separate verdicts signed by the foreman, as shown by the record. Thereupon, the following appears:

“THE COURT: * * * All right, Mr. Foreman, you have returned two (sic) verdicts. The court cannot accept two (sic) verdicts, so I’ll have to return it to you for further deliberation. You will retire.”

Thereafter, the jury returned its verdict here under review.

It thus appears that the court properly refused to accept multiple verdicts, did not in any sense coerce the jury, and its action resulted in the return, in proper form, of a single verdict. Nothing in this trial incident appears that would lead to the unsupported conclusion reached by defendant, that the finding of guilt or innocence was influenced by the mistaken use of the jury forms supplied in the instructions. No prejudice is apparent and no misconduct by the jury is reflected in the record. Defendant’s Point VII is ruled against him.

The judgment below is affirmed.

All concur.

      . Other proscribed material was found in other parts of the house during the search and retained by the police officials. Under another search warrant executed the afternoon of October 30, 1974, a search of the yard uncovered other material. However, the nature and content of this material is not relevant to this appeal. The guilt or innocence of the defendant in this case rests upon State’s Exhibits 1 and 2.


author: ROBERT R. WELBORN, Special Judge.

text:
    Donald L. KERNS, Appellant, v. Lillie M. KERNS, Respondent.
    No. KCD 28810.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.

      Richard E. Duggan, Duggan & Keleher, Kansas City, for appellant.
    Edward A. Coulson, William E. Shull, Philip D. Gettig, Gettig, Coulson & Shull, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Dissolution of marriage proceeding. Trial court dissolved marriage on petition of husband and awarded wife $200 per month for maintenance for a period of 30 months, beginning May 1, 1976. Husband has appealed, attacking only the maintenance award.

Donald L. Kerns and Lillie Margueritte Kerns were married December 13, 1970. Donald was 46 years old at that time, his wife three years older. Both had been married previously. Donald was obligated to pay $300 per month for the support of minor children, arising from his prior marriage. Lillie M. received $150 per month for the support of her three minor children. At the time of the dissolution in this case, one minor child still lived with Lillie M. and she was still receiving $150 per month for her support. Donald continued to pay $300 monthly support for his children.

Donald operated a small construction business at the time of the dissolution in this case. He had tried other business ventures, with little success, and had been adjudicated bankrupt in 1971. At the hearing on the maintenance allowance, he testified that his gross taxable income for 1975 was $8,400, with a net taxable income of some $5,400. Lillie M.’s testimony questioned the accuracy of Donald’s income tax return as evidencing his actual income. Her testimony would have supported a finding that his actual income was in excess of the amount he claimed.

Although appellant’s argument here includes the contention that there was inadequate demonstration of his ability to meet his needs while meeting those of the respondent (§ 452.335 2. (6), RSMo Cum.Supp. 1975), his sole point relied on is: “The court erred in awarding maintenance to respondent on the basis that respondent was capable of earning a substantial income and it was not necessary for respondent to stay home to care for young children.” (The quotation is not intended to approve this statement as a model of compliance with Rule 84.04(d).' It does show the limited Question presented on this appeal.)

Section 452.335 1. (2), RSMo Cum.Supp. 1975, permits an award of maintenance only if the court finds that the spouse seeking such an award “[i]s unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.”

The evidence in this case showed that, at the time of the marriage, respondent was employed as a real estate salesperson. When she married appellant, she restricted her activity in that area because appellant preferred to “have her as a housewife.” Following the marriage, she assisted appellant in his business ventures, but continued her real estate work, earning approximately $3,500 in 1971, $1,200 in 1972, $2,200 in 1973, $800 in 1974, $2,500 in 1975, and an average of $250 per month for the first quarter of 1976.

Respondent testified that a nervous condition which appeared in the summer of 1975 and for which she was under a doctor’s care had kept her away from the real estate office and depressed the amount of her earnings.

She testified that her monthly expenses were approximately $800. She has no source of income of significance other than her earnings in the real estate business and the $150 per month which she receives for the support of the child living with her. She fell in debt some $1,500 following her separation from appellant.

On cross-examination respondent stated that the nervous condition arose out of her marital problems and that she felt that dissolution of the marriage would cause her condition to improve. There were some questions posed to her about a potential ability to earn $1,000 per month. Respondent’s reply was “I could make a thousand dollars one month and nothing the next.”

On the record, this court cannot find the trial court’s award of maintenance erroneous. Respondent’s claim was not based upon any necessity to remain at home in order to care for children. Her claim must rest upon her inability “to support [herjself through appropriate employment.” Respondent testified to her actual earnings and expenses and to a nervous difficulty which limited her earning ability. Her evidence was sufficient to permit a finding of lack of ability to support herself, at least for the limited period of the award here questioned.

The sole authority relied upon by appellant, In re Marriage of Neubern, 535 S.W.2d 499 (Mo.App.1975), does not compel a different conclusion. There were a number of factors present in that case, including an award of marital property to the wife of a business from which she might be expected to support herself, her employment experience and her lack of “physical, mental or emotional disabilities * * *535 S.W.2d at 503[4, 5], In this case, the marital property is not a factor and there was evidence of limitation upon respondent’s ability to provide for herself through employment.

There was evidence to support the trial court’s conclusion on the issue here raised. Review of the evidence heard by the trial court produces no “firm belief that the decree or judgment is wrong.” Murphy v. Carrón, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976). Therefore, the award of the trial court must be affirmed.

Judgment affirmed.

All concur.


text:
    Coy G. KENNEDY and Leona J. Kennedy, Plaintiff-Respondents, v. Drexel FINDLEY and Martha A. Findley, Defendant-Appellants.
    No. 28828.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.

      Thomas E. Ryan, Popham, Popham, Conway, Sweeny & Fremont, P. C., Kansas City, for defendant-appellants.
    Downs & Pierce, Robert D. Colley, St. Joseph, for plaintiff-respondents.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

Coy Kennedy and his wife brought an action in ejectment against Drexel Findley and wife. The Findleys counterclaimed on the ground they had obtained title to the disputed real estate by adverse possession for more than ten years under § 516.010, RSMo 1969. The court found in favor of the Kennedys and ordered the Findleys to vacate the disputed land.

On this appeal Findley contends the court erred in finding in favor of Kennedy and in failing to find title to be vested in Findley by adverse possession. Reversed.

The Kennedys purchased the East half of Lots 2 and 3, Block 8, Plattsburg Land and Building Association in the City of Platts-burg, in 1953. Lot 2 is a tract 150 feet by 90 feet with the frontage on Clay Avenue which is Highway 116, the west boundary is Mulberry Street, the east boundary is an alley, and Lot 3 is to the south. Lot 3 is likewise a tract 90 feet by 150 feet. To the north of Lot 3 is Lot 2, on the west is Mulberry Street, on the east is an alley and on the south is Lot 6. The east half of Lots 2 and 3 would be a tract 75 feet east and west by 180 feet north and south, bounded by Highway 116 on the north, the alley on the east, the west half of such lots on the west, and Lot 6 on the south.

The Findleys are the owners of the east half of Lot 6. This tract is immediately south of the east half of Lot 3. The Findley tract was purchased by Robert Frost in 1957. At the time Mr. Frost purchased this lot, he was told the boundary between his tract and Lot 3 was a row of trees. Mr. Frost stated he believed he owned to the tree line, and, although he rented the property to tenants, he cleared the area up to the tree line and tore down an old shed which was located near the tree line.

At the time the Kennedys purchased their property, the same tree line was pointed out as the boundary to the Kennedys by their sellers. Both Mr. and Mrs. Kennedy testified that until 1970 they believed the tree line was the boundary between their tract and the Frost-Findley tract. The Kennedys both stated they did not occupy any property south of the tree line, nor did they make any claim of owning any land south of the tree line until 1970 when the Kennedys had occasion to examine their deed and decided their property had to extend south of the tree line in order to give them the 180 feet their deed called for.

Both Mr. and Mrs. Kennedy testified there was no dispute concerning the boundary line until 1970. Up to that time they did not claim south of the tree line nor did Frost or Findley claim north of that line. The Kennedys agreed that Frost’s tenants, who occupied before Findley moved onto the Frost tract in 1964, had occupied up to the tree line. There is no dispute that after 1964 Findley occupied up to the tree line.

After Findley occupied the Frost tract, he had a garden just south of the tree line, and after he discontinued the garden, he seeded the area and kept it mowed. He stated the tree line consisted of small trees with the largest about eight inches in diameter. Thereafter, a clothesline was placed on this tract and the Findleys continued to occupy it and claimed it as being a part of their lot.

Shortly prior to 1967, Findley paid to have the trees forming the tree line cut. He discussed this with Kennedy and Kennedy made no objection since both parties, at that time, assumed the trees formed the boundary. In 1967 Findley erected a chain link fence running east and west on the old tree line. He also enclosed the disputed tract on the east and west to join the disputed tract with his backyard. Kennedy made no objection to the erection of the fence, again, because all the parties believed the fence was on the boundary.

The first question concerning the location of the boundary arose in 1970 when Mrs. Kennedy had occasion to examine their deeds and stated she did not believe their property extended 180 feet south from Highway 116. Nothing tangible was done, although conversations were held with the Findleys in which the Kennedys indicated they believed the Findleys were actually encroaching on the Kennedy land. The Kennedys testified Findley offered to buy the tract in question after a problem as to the location of the boundary arose. In 1973, the Kennedys had a survey made which showed the fence was built on the Kennedy property by 41 feet on the east and 41.4 feet on the west. It is this tract of about 41 feet north and south and 75 feet east and west, which is on the south part of the east half of Lot 3, which is in controversy-

At the conclusion of the evidence the trial court dictated informal findings of fact in which he indicated a belief that none of the parties knew the location of the boundary line and for that reason the claim of Find-ley did not meet the open, notorious, continuous and adverse parts of the test by which adverse possession is measured. Further, the court indicated that he did not believe Findley could tack his possession onto the Frost possession because Frost had conveyed to Findley only the east half of Lot 6 and had not conveyed to Findley by deed that part of Lot 3 which constituted the disputed strip.

The court was in error when he declared the possession of the disputed strip in this case could not meet the open, notorious, continuous and adverse test required to establish title by adverse possession. The basis of the court’s belief in denying this claim was the ignorance on the part of all parties as to the location of the true boundary.

Agers v. Reynolds, 306 S.W.2d 506 (Mo.1957) is a case remarkably similar to this case. In that case a claim of adverse possession, based on a claim up to a fence line in ignorance of the location of the true boundary, was upheld. The court quoted from two prior cases, State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174 (1941) and Bell v. Barrett, 76 S.W.2d 394 (Mo.1934), on the precise question here at 306 S.W.2d 506, 511[4] as follows:

“The principle, as stated in all of our prior decisions, may be reduced to this: If the possessor occupies the land in question intending to occupy that particular piece as his own, his occupancy is adverse. It is not necessary that he intend to take away from the true owner something which he knows belongs to another, or even that he be indifferent as to the facts of the legal title. It is the intent to possess, and not the intent to take irrespective of his right, which governs. Possession is a legal concept. It involves two things: A present or, in the case of constructive possession, a past ability to control the thing possessed plus an intent to exclude others from such control. Or, in the language sometimes used in the cases, to exercise dominion over the object possessed. One may have such an intent in the case of property actually belonging to another, because he intentionally wants to take it away from the owner. But he may also have this intent because he is mistaken as to the facts of legal ownership.”

The above rule adequately settles the controversy here. Both Frost and Findley stated they claimed up to the tree line which was replaced by a fence which completely enclosed the disputed strip. Kennedy admits he did not occupy or claim to own any part of this strip for more than ten years, while Frost and Findley did occupy the strip as their own. This undisputed state of facts is more than ample to support a finding of adverse possession on the part of Frost and Findley and demonstrates the finding by the trial court on this question of law was in error.

The trial court was likewise in error on the question of Findley tacking his possession to Frost. Frost testified unequivocally that from the time he purchased the property in 1957, he occupied and claimed to own up to the tree line which later became the fence line. Findley likewise made this same claim. While Frost conveyed only the east half of Lot 6 to Findley, he testified he intended to convey Findley all of the land running to the tree-fence line. Findley likewise testified he intended to purchase all of the land running to that same line. Kennedy verified this intent when he stated he understood Frost had conveyed the disputed strip to Findley. In Crane v. Loy, 436 S.W.2d 739 (Mo.1968) the court stated at 743[4, 5]:

“Where a person having title by deed to a lot or tract of land described in the deed also has inclosed with it and is in possession of adjoining land to which he has no record title and conveys the land by the description in the deed, and delivers with it the possession of the entire inclosure, the continuity of possession will not be broken and the two possessions may be joined and considered as one continuous possession. The point at issue is the intended and actual transfer of possession of the land held adversely.” 5 Thompson, Real Property, Sec. 2551, p. 565. As previously noted “The possession of an adverse occupant need not be transferred by deed.” Ridgeway v. Holliday, 59 Mo. [444] l. c. 453. In 1872 the court said, “Not even a writing is necessary if it appear that the holding is continuous and under the first entry.” Crispen v. Hannavan, 50 Mo. 536, 549.

In this case Kennedy does not deny Frost intended to deed to Findley the disputed strip. Under the rule quoted in Crane, the possession of Findley is properly to be tacked to the possession of Frost.

Under the standard of review in this court-tried case, as defined in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) the judgment must be reversed because the court erroneously applied the law. For that reason judgment should be entered in favor of the Findleys on Kennedy’s petition, and in favor of the Findleys on their counterclaim for adverse possession.

This cause is remanded to the circuit court with directions to enter a judgment finding the issues on the petition and on their counterclaim in favor of Findley and declaring the Findleys to be the owners of the disputed tract as shown by the survey, Exhibit I, and to declare that the Kennedys do not have any right, title or interest in and to such tract.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    In re the MARRIAGE OF Irma J. ENGELHARDT, Petitioner-Respondent, and Alvin J. Engelhardt, Respondent-Appellant.
    No. 28944.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.
    Snowden, Crain & DeCuyper, Joseph Y. DeCuyper, Hsiang-Lin Lee, Kansas City, for respondent-appellant.
    Dorsey, Brannon & Dorsey, John Gregory Dorsey, North Kansas City, for petitioner-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment which modified divorce decree by increasing allowance for child support, awarded attorney’s fees for trial of the motion to modify, and awarded brief costs and temporary attorney’s fees for this appeal. The question is whether the awards constituted an abuse of discretion. Affirmed.

Irma J. and Alvin J. Engelhardt were divorced May 26, 1972. Mrs. Engelhardt was awarded custody of the couple’s minor daughters, Catherine Ann, 13, Susan Elaine, 10, and Carol Jeannette, 8. Mrs. Engel-hardt was awarded $240 per month for support of the children.

Mrs. Engelhardt moved February 4,1976, to modify the divorce decree to increase the award for child support. She prayed also for attorney’s fees for prosecution of her motion.

Irma J. Engelhardt lived with Catherine Ann, Susan Elaine, and Carol Jeannette in a $114.50 per month rental home at 5237 Northeast 37th Street, North Kansas City, Missouri. Alvin J. Engelhardt had remarried and was living with his new wife in a $250 per month rental home at 5705 Northwest Hillside Drive, Kansas City North, Missouri.

Mrs. Engelhardt’s costs for maintenance of the children had increased generally since the divorce due to the general increase in the cost of living. The children are older, are now teenagers, and require more. Catherine Ann is now in Senior High School with the usual added expenses for books and social and class activities. All three children now eat more, wear adult-size clothing, and have need for cosmetics. Personal items cost more for teenagers than for children. All three children have added social activities such as basketball games and dances. Mrs. Engelhardt’s rent is $10 more per month than in 1972. ■ She had obtained new employment at Fleet-Mate Products at a gross salary of $600 per month, and a net of approximately $400. Her previous employment at Grand Avenue Bank grossed $518.27 per month. Her net at the bank, $350, amounted to about the same when insurance benefits there were considered. Her utilities costs had increased. She did not know the amount; it was a “percentage per month.” Other costs for medical and debts had remained as budgeted. Her itemized expenses amounted to $646.50.

Mrs. Engelhardt figured her need for child support at $400 per month. She estimated Mr. Engelhardt’s current salary at $1200 per month, an increase of $400 per month since the divorce. Mr. Engelhardt had increased the child support without court order to $280 per month, $20 of which was to purchase hospitalization insurance at Grand Avenue Bank, because it could be obtained cheaper there than through Mr. Engelhardt. She does not have such an opportunity on her new job. She also asked for an award of attorney’s fees.

All three girls had been employed from time to time, usually at baby-sitting. Their incomes were quite small, $2.00 to $3.00 per week to as much as $15.00 per week in the past summer by the oldest daughter. The money went to their own needs and recreation.

Alvin J. Engelhardt was employed by the City of Kansas City as Airport Safety Manager at KCI Airport. In 1972 his income was around $820 per month and it is now $1,284 per month. He is paid 26 times per year. His net pay after deductions for federal and state income taxes, city taxes, Social Security, medical and life insurance, savings bonds, pension, and credit union is $743.02 per month. He has monthly payments on accounts with Master Charge, Penney’s, and Sears totaling $45 per month. Other obligations for utilities, rent, food, recreation, transportation, etc., for him and his wife, and including the $280 per month paid for child support, amounted to $920.40. His wife’s employment enabled him to make up the difference between such figure and his net pay.

Mrs. Engelhardt’s attorney, a practicing lawyer for eight years, set his reasonable charge for service at $40 per hour for 6.7 hours devoted to her case.

Upon the foregoing evidence, the court increased the award for child support from $240 per month to $120 per month for each child ($360 per month), and awarded Mrs. Engelhardt $225 for attorney’s fees.

Alvin J. Engelhardt appealed the foregoing awards, and Irma J. Engelhardt sought an order for attorney’s fees and costs in connection with the appeal.

The foregoing request was heard on August 24, 1976. Evidence concerning both parties’ incomes and expenses were reiterated as in the prior hearing, and Mrs. En-gelhardt’s attorney estimated his additional time and cost of brief on appeal, upon which the court ordered appellant to pay respondent cost of brief of $50 and temporary attorney’s fee of $250.

Inasmuch as both parties address the scope of review, it is noted that the case is for review upon both the law and the evidence with due regard to be given the opportunity of the trial court to have judged the credibility of the witnesses. See Rule 73.01.3(a)(b), V.A.M.R., and its construction, Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo.banc 1976).

Appellant contends the court abused its discretion (I) in its increase of child support “without being supported by substantial evidence to justify the needs of the children and without considering the ability of the appellant to pay,” and (II) in the awards for attorney’s fees “without such being supported by substantial evidence to justify her need to have the expense borne by the appellant.”

Determination of the proper amount to be paid by a father to fulfill his obligation to support his children requires a balancing between the needs of the children and the ability of the father to pay. S. v. S., 514 S.W.2d 1, 8[13] (Mo.App.1974); Smolly v. Hoffman, 458 S.W.2d 579, 581 (Mo.App.1970).

And in order to award attorney’s fees to the wife (or spouse), there must have been evidence to establish her need to have such expense borne by her husband, and if the disparity of means to pay is sufficient, the wife should be allowed to look to her husband for payment of her attorney’s fees. Larison v. Larison, 524 S.W.2d 159, 161[11, 12] (Mo.App.1975).

A judgment for child support can be modified upon proof of a change of conditions subsequent to entry of original judgment with the burden resting on the moving party. § 452.370, RSMo 1969; In re Marriage of Cook, 532 S.W.2d 833, 838[10] (Mo.App.1975).

Irma J. Engelhardt, the mother, adduced evidence of changed conditions. Her children were growing into teenagers with more needs at a time when her and their cost of living had increased. Such was a change of conditions upon which to found modification of the child support award. Smolly v. Hoffman, supra, 458 S.W.2d l.c. 581[3].

Mrs. Engelhardt also adduced evidence of a 50% increase in Mr. Engelhardt’s income. This was not, in itself, sufficient reason to modify the child support award; but once changed circumstances were shown which justified a modification of the child support award, the husband-father’s increased income was relevant to his ability to pay and was properly considered by the trial court. Lane v. Lane, 439 S.W.2d 550, 552[4, 5] (Mo.App.1969).

Mrs. Engelhardt adduced evidence that she and her children have had to use all her salary and the father’s child support payments for maintaining herself and the children. She also showed that the children’s father had an increase in his means, both by way of his own 50% salary increase and a salary earned by his new wife which was available to maintenance of their own life style. In such circumstances, a disparity of means existed and the award of attorney’s fees and costs was not an abuse of discretion.

In addition to the authorities mentioned, the resolution of this case is supported by McGinley v. McGinley, 513 S.W.2d 471 (Mo.App.1974), and Walter v. Walter, 544 S.W.2d 271 (Mo.App.1976). See also Nixon v. Nixon, 525 S.W.2d 835, 838[5], 839[7, 8] (Mo.App.1975).

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    Don M. BAYSINGER, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28951.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.
    Timothy A. McNearney, Independence, for appellant.
    John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   PER CURIAM.

Following an evidentiary hearing, appellant’s Rule 27.26 motion to vacate judgments and sentences entered and pronounced on pleas of guilty to second degree burglary and stealing was denied.

After appellant pleaded guilty to the charges, sentencing was deferred awaiting a pre-sentence investigation. Thereafter, appellant was sentenced to five years on each charge, same to run consecutively, and placed on probation. Appellant’s Rule 27.26 motion was filed following a probation revocation hearing which resulted in his probation being revoked.

Appellant bottoms his claim for post-conviction relief on a single ground — his pleas of guilty were involuntarily induced by counsel’s promise that any sentences imposed would run concurrently. Although appellant testified at the evidentiary hearing held in conjunction with his Rule 27.26 motion that counsel promised and assured him that any sentences would run concurrently, the same was refuted by testimony given under oath by appellant at the time his pleas of guilty were made and accepted, and inferentially, if not directly, by other testimony offered by the state at the evi-dentiary hearing.

The burden rested upon appellant to prove the single ground relied upon and the scope of appellate review is limited to a determination of whether the findings, conclusions and judgment of the trial court are “clearly erroneous”. Rule 27.26(f) and (j); and Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968). Weighing the evidence and assessing the credibility of witnesses is peculiarly within the province of the trial court. Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971).

Application of the above principles to the record at hand, after taking cognizance of the posture of the evidence, impels the conclusion that no error of law appears and that the findings, conclusions and judgment of the trial court are not clearly erroneous. An extended opinion in this case would have no precedential value and the judgment is affirmed in accordance with Rule 84.16(b).

Judgment affirmed.

All concur.


text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION OF MISSOURI, Plaintiff-Respondent, v. ARMACOST MOTORS, INC., et al., Defendants, and Airport-Auditorium Motel Corporation, Defendant-Appellant.
    Nos. KCD 27972 to KCD 27976.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.

      Frank P. Sebree, Frederick Beihl, Richard D. Woods, Shook, Hardy & Bacon, Kansas City, for defendant-appellant, Airport-Auditorium Motel Corp.
    Earl H. Schrader, Jr., Asst. Counsel, Missouri State Highway Commission, Kansas City, for plaintiff-respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   PER CURIAM.

As eventually becomes apparent, this case has had a hoary history. Airport-Auditorium Motel Corporation (hereinafter referred to as condemnee) appeals from five judgments entered by the trial court on March 17,1975, for damages for the taking of five parcels of land in their entirety in a condemnation action initiated by the State of Missouri on the relation of the State Highway Commission of Missouri (hereinafter referred to as a condemnor). One broad pervasive issue is common to each appeal and the five separate appeals have been consolidated for purpose of appellate disposition. Briskly stated, condemnee claims the trial court erred in not treating the five parcels of land as a single assembled tract for the purpose of assessing condemnee’s damages.

The key facts are both numerous and somewhat complicated. In 1951 the City Planning Commission of Kansas City, pursuant to a contract with the State Highway Commission of Missouri, published and widely disseminated a book entitled “Expressways of Greater Kansas City.” Among other things it set forth the proposed route of what has been commonly referred to as the Crosstown Freeway Project. Condemnee’s chief executive officer admitted that he had knowledge of the contents of the book entitled “Expressways of Greater Kansas City” before condemnee acquired any of the five parcels of land, and therefore condemnee had prior knowledge that slightly less than one-half of the combined area of the five parcels of land, which condemnee subsequently acquired, lay in the path of the proposed route of the Crosstown Freeway Project. Title to four parcels of land vested in condemnee in February and March of 1963 and title to the fifth parcel of land vested in condemnee in April of 1963. No effort was made by condemnor to contact condemnee for the purpose of negotiating acquisition of the latter’s property until the interim between the vesting of title to the first four parcels and the fifth parcel. Suffice it to say negotiations were not fruitful. Condemnor’s petition for condemnation was filed August 27, 1963. Condemnee’s chief executive officer disclaimed having had any knowledge that all five parcels of land would be condemned in their entirety until condemnee was served with a summons and copy of the condemnation petition. Certain evidence introduced by condemnor infers that condemnee had knowledge that condemnor proposed to condemn a majority of the area represented by the five parcels of land before their assemblage was completed. On the other hand, an overview of all the evidence reveals that condemnee’s chief executive officer consistently expressed hope that changes and alterations in the proposed freeway project could or would be made whereby con-demnee might retain sufficient acreage to go ahead with the commercial project for which the land was being assembled, and evidence appears in the record from which it can be inferred that this hope was not entirely misplaced.

The five parcels of land owned by con-demnee were individually described in separate paragraphs of condemnor’s petition. In addition to naming condemnee as defendant, the petition also named the city and county collectors and the trustees and beneficiaries of various deeds of trust as defendants.

The report of the commissioners was filed November 8,1963. Separate amounts were fixed and awarded for each of the five parcels of land owned by condemnee. The separate amounts fixed and awarded by the commissioners, and the description and size of the various parcels to which they relate, are as follows:

Parcel 1: $144,000.00 (1426-32 Central-29,174.9 square feet)
Parcel 2: $85,200.00 (1433 Broadway— 14,200 square feet)
Parcel 3: $60,300.00 (1425 Broadway— 10,530.7 square feet)
Parcel 4: $60,375.00 (1417-23 Broadway —10,650 square feet)
Parcel 5: $31,650.00 (1415 Broadway— 5,325 square feet)

The amounts awarded by the commissioners were apparently paid into court on November 8, 1963, as parties stipulated that the date of taking of the five parcels of land was November 8, 1963.

Condemnee filed exceptions to the Commissioners’ Report as to all five parcels. Thereafter, by written motion (hereinafter referred to as motion to consolidate), con-demnee moved the trial court “to consolidate all its exceptions into one action and try them together as exceptions relating to one assemblage leading to one verdict by the jury.” An extensive evidentiary hearing was held in conjunction with the motion.

In addition to many of the facts heretofore mentioned, evidence introduced at the hearing further revealed the following facts deemed germane to the issue on appeal.

In 1953, condemnee, acting through “related” entities, launched efforts to acquire a tract of land in the general area in question which would be suitable for construction of a motel. The general area in question was selected as a prime location because of its proximity to the Municipal Auditorium located in “downtown” Kansas City. Throughout the remainder of the 1950’s, condemnee’s chief executive officer contacted over twenty motel and hotel operators, including the “Sheraton Corporation”, the “Hilton Corporation”, and the “Hotel Corporation of America”, regarding location, size, internal facilities and parking space for a successful motel operation. Additionally, he worked with several national real estate firms which specialized in hotel and motel developments. These efforts culminated in condemnee’s acquisition of the five parcels of land which are the subject of this condemnation action.

All five parcels of land were vacant and unimproved on the date of their taking and had been for some time prior thereto. All five parcels of land were contiguous although an alley ran between the four parcels of land which faced west and fronted on Broadway and the fifth parcel of land which faced east and fronted on Central. Moreover, all five parcels of land were in an area zoned M-l (light industry) which permitted their use for motel purposes.

On October 27, 1971, the trial court denied condemnee’s motion to consolidate. Shortly thereafter, condemnee delivered a letter to the trial court (treated by the trial court and the parties as a supplemental motion) wherein, as construed by the trial court, condemnee also asked the trial court to rule that “the various tracts of land may be enhanced in value because of the ‘reasonable probability’ of their being combined in the ‘reasonably near future.’ ” On December 2, 1971, the trial court amended its original order denying condemnee’s motion to consolidate and entered the following order:

“The order of this Court entered October 27, 1971, is amended to read as follows:
“Exceptions to the award of the Commissions for tracts mentioned in paragraphs 25.0, 26.0, 27.0, 28.0 and 29.0 of plaintiff’s petition, in each of which defendant Airport-Auditorium Motel Corporation is alleged to own an interest, are consolidated for trial before one jury. However, defendant’s motion that the cases be tried as if all the land constitutes one single tract for the purpose of arriving at values is overruled. The jury will be instructed to return a separate verdict with respect to each tract, and evidence rulings will be consistent with the above orders.
“Defendant’s motion, in the form of a letter, filed November 15, 1971, that the Court rule that the various tracts of land may be enhanced in value because of the ‘reasonable probability’ of their being combined in the ‘reasonably near future’ is overruled. The Court concludes that defendant knew, or should have known, that the land would be taken by plaintiff, before the parcels were combined in one owner, and before there was'any relationship between the various owners that might give rise to the reasonable probability of their being combined in the reasonably near future.
“This order is designated as a final order for the purpose of appeal.” (Emphasis added.)

Condemnee took an appeal from the amended order to the Supreme Court of Missouri. State ex rel. State Highway Comm’n v. Armacost Motors, Inc., 502 S.W.2d 330 (Mo.1973). Notwithstanding the trial court’s designation of the order “as a final order for the purpose of appeal”, the Supreme Court dismissed condemnee’s appeal for lack of a final judgment for purpose of appeal.

After the case was relodged in the trial court, condemnor and condemnee executed a protracted “Stipulation” which, inter alia, preserved for purpose of appeal viability of the pervasive issue now presented. Con-demnee’s exceptions were bench tried pursuant to the “Stipulation” and five judgments were entered, one as to each parcel of land. Each judgment awarding damages was rendered solely in favor of condemnee. As the amount awarded to condemnee in each of the five judgments was less than the respective amount fixed by the commissioners in their report, the trial court entered judgment in favor of condemnor and solely against condemnee for the amount by which each judgment in favor of con-demnee and against condemnor exceeded the amount of damages respectively fixed by the Commissioner’s Report “with interest” thereon “at the rate of six per cent (6%) per annum from and after January 1, 1964.” Condemnor did not appeal from any of the five judgments entered by the trial court.

Disposition of this appeal is aided by first posing and answering a hypothetical question. If condemnee had completed assembling the five contiguous, vacant and unimproved parcels of land into one ownership prior to any announcement that they lay in whole or in part in the path of the proposed freeway, and thereafter they became the subject of condemnation in their entirety, would condemnee have been entitled to have the five parcels of land treated as a single assembled tract for the purpose of assessing damages for their taking? This court concludes, for the following reasons, that this question must be answered in the affirmative.

By constitutional mandate, Article I, § 26, Constitution of Missouri, 1945, “private property shall not be taken . for public use without just compensation.” Drawing upon this constitutional mandate and a long line of case authority, MAI 9.01 (used where property is taken in its entirety) reflects that the measure of “just compensation” is the “fair market value” of the property immediately before its taking. In determining “fair market value” a jury is advised that it “should take into consideration all the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the near future.” MAI 16.02 (also drawing upon the constitutional mandate, supra, and a long line of case authority).

Broadly speaking, plottage is a recognized concept in the field of eminent domain. Although neither party has addressed the issue at hand in terms of plot-tage, it necessarily courses throughout by implication. Notwithstanding the fact that no Missouri cases speaking of plottage have been cited by the parties or disclosed by this court’s independent search, it is recognized in other jurisdictions and by text authorities and the logic and reasons underlying it are sound and persuasive. Apposite this case, plottage refers to an added increment of value which may accrue to two or more vacant and unimproved contiguous parcels of land held in one ownership because of their potentially enhanced marketability by reason of their greater use adaptability as a single unit; simplistically stated, an assemblage of vacant and unimproved contiguous parcels of land held in one ownership may have a greater value as a whole than the sum of their values as separate constituent parcels; and plottage value may be considered in determining damages, i. e., “fair market value”, when two or more vacant and unimproved contiguous parcels of land held in one ownership are taken in their entirety by exercise of the power of eminent domain. See: 4 Nichols on Eminent Domain, 12-425, § 12.35 (3rd rev. ed., 1976); 1 Orgel, Valuation Under the Law of Eminent Domain, 168-70, § 35 (2d ed. 1953); U. S. v. 49,375 Square Feet of Land, 92 F.Supp. 384, 391 (S.D.N.Y.1950); U. S. v. 29,930 Square Feet of Land, 49 F.Supp. 383, 385-86 (E.D.N.Y.1943); In re Armory Board, 73 App.Div. 152, 76 N.Y.S. 766, 767-68 (1902); and In re Certain Lands in City of New York, 127 Misc. 710, 217 N.Y.S. 544, 563 (Sup.Ct.1926). The term “plottage value” and the term “assemblage value” are sometimes used interchangeably. Arkansas State Highway Comm’n v. Witkowski, 257 Ark. 659, 519 S.W.2d 743, 746 (1975); and State v. Sauls, 234 La. 241, 99 So.2d 97, 102 (1958).

The mere presence of an alley between the four parcels of land facing Broadway and the one parcel of land facing Central did not destroy their contiguity. Public Water Supply Dist. No. 2 v. Alex Bascom Co., 370 S.W.2d 281, 285 (Mo.1963).

When the facts hypothesized in the previous question are juxtaposed with the concept of plottage, treatment of the five parcels of land as one unit leading to a single verdict for the purpose of assessing damages would accord with “fair market value” in the sense employed in MAI 9.01 and MAI 16.02, supra. Prom the standpoint of the trier of facts, doing so would facilitate assessment of the overall damages to which condemnee would be entitled for the taking of all five parcels of land in their entirety and the orderly presentment of all cognizable matters appertaining to “fair market value”, as determined by and subject to applicable principles of law and rules of evidence, which infuse all five parcels of land. A fragmented presentation of such matters would be confusing and disoriented.

A crucial factual question must now be posed and answered. As condemnee acquired all five of the parcels of land prior to condemnor’s institution of condemnation proceedings, though after obtaining knowledge that they lay, at least in part, in the path of the proposed Crosstown Freeway Project, is condemnee barred from having the five parcels of land treated as a single unit for the purpose of assessing damages when taken in their entirety? This question, at least in part, raises one of many legal conundrums associated with premature announcements of condemnation.

Condemnor vigorously argues that con-demnee’s acquisition of the five parcels of land after acquiring knowledge that they lay in whole or in part in the path of the proposed Crosstown Freeway Project vitiated condemnee’s claimed right to have the five parcels of land considered as a single unit for the purpose of assessing damages for their taking. The thrust of condemn- or’s argument being that the five parcels of land could never be used in combination because of the impending Crosstown Freeway Project. It is parenthetically noted that the same argument, if carried to its extreme, would enable a condemnor to contend that a condemnee who acquired a single parcel of land under matching circumstances would not be entitled to have its best use “under conditions to be reasonably expected in the near future” considered in determining its “fair market value”. Con-demnor further argues that condemnee assembled the five parcels of land in “bad faith” and therefore should be deprived of any enhanced value that might attach by treating them as a single unit.

While the arguments tendered by con-demnor have not been ruled on in this state in the context in which they are presently invoked, cases dealing with comparable, and in a broad sense, analogous situations exist, which this court deems applicable and controlling.

A premature announcement of condemnation falls short of an irrevocable commitment to exercise the power of eminent domain. In fact, condemnor in the instant case, for example, could have abandoned the condemnation proceeding, which was initiated some ten years after being prematurely announced, any time within ten days after the commissioners’ report assessing damages became final. Rule 86.06. An area touched by a premature announcement of condemnation is under a pall of condemnation blight and property owners therein, or would-be property owners therein, are literally “between a rock and a hard place”. The threat of condemnation proceedings is not an element of damages for a taking in condemnation. State ex rel. State Highway Comm’n v. Samborski, 463 S.W.2d 896, 903 (Mo.1971); St. Louis Housing Auth. v. Barnes, 375 S.W.2d 144, 147 (Mo.1964); and State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 817 (banc 1933). On the other hand, property owners who rely on premature announcements of condemnation which are later abandoned have no recourse against a prospective condemn- or. Hamer v. State Highway Comm'n, 304 S.W.2d 869 (Mo.1957). Consequently, premature announcements of condemnation do not freeze all movement of property in an affected area. Those possessing the power of eminent domain have successfully argued and established on previous occasions that evidence of the sale price of property sold to one other than condemnor after proposed condemnation has been publicly announced is admissible. The rationale thereof is succinctly stated in Kansas City v. Boruff, 295 Mo. 28, 243 S.W. 167, 169 (banc 1922): “The land was upon the open market. The owner had the right to sell, and the purchaser the right to buy.” Condemnor in the instant case successfully advanced the same argument in State ex rel. State Highway Comm’n v. Rauscher Chevrolet Company, 291 S.W.2d 89 (Mo.1956). As evidenced by past litigation to which condemnor has been a party, condemnor has persistently sought to shroud itself with insularity regarding all adverse effects of premature announcements of condemnation while, at the same time, seeking to burden condemnees with all unfavorable fallout therefrom.

State ex rel. State Highway Comm’n v. Fénix, 311 S.W.2d 61 (Mo.App.1958), is closely in point. There condemnor introduced evidence inferring that condemnee purchased property and began construction of a motel upon it despite knowledge of its proposed condemnation. The court held that since there was no evidence that con-demnee acted in bad faith in purchasing the property and erecting the motel, a “false issue” was injected in the case and the trial court erred in admitting evidence of con-demnee’s prior knowledge of the proposed condemnation. The court struck at the heart of the matter, State ex rel. State Highway Comm’n v. Fenix, supra, at 64, with the following statement: “Having logically maintained and successfully established in the Hamer case, supra, that it may not be penalized as a result of advance disclosure of plans for a highway project, the Commission may not, now that the boot is on the other foot, penalize the landowner by reason of such advance disclosure.”

Condemnor in the instant case seeks to infer that condemnee assembled the five parcels of land to enhance their litigation value. In its brief, condemnor likens condemnee’s assemblage of the five parcels of land to “the modern equivalent of salting the gold mine”. Frontier Town Properties, Inc. v. State, 58 Misc.2d 388, 296 N.Y.S.2d 90, 105 (Ct.Cl.1968), pithily holds that “[djemonstrable had faith” is required to sustain an argumentative inference raised by a condemnor that a condemnee has acquired property in the path of a prospective condemnation project for the purpose of litigation value. This state hews to the general principle that a presumption exists that acts are performed in good faith. State v. Tillatson, 312 S.W.2d 753, 757 (Mo. banc 1958). A careful review of various exhibits and portions of evidence relied upon by condemnor fails to overcome this presumption or measure up to “demonstrable bad faith” on the part of condemnee in assembling the five parcels of land. Although all the evidence viewed in its entirety may well suggest that a more cautious person would not have engaged in an effort to assemble the five parcels of land under the existent circumstances, such lack of caution does not bear out condemnor’s charge of bad faith. Moreover, the trial court bottomed its ruling on condemnee’s motion to consolidate and treat the five parcels of land as one unit for the purpose of assessing damages solely on the fact that condemnee “knew, or should have known that the land would be taken by plaintiff [condemnor], before the parcels were combined in one owner, and before there was any relationship between the various owners that might give rise to the reasonable probability of their being combined in the reasonably near future”. Such knowledge on the part of condemnee, standing alone, does not subject condemnee to the brunt of a penalty as urged by condemnor. As the trial court did not so much as intimate or hint that condemnee was guilty of “demonstrable bad faith”, this court is impelled to conclude that in light of all the evidence condemnee was entitled to have all five exceptions consolidated and the five parcels of land treated as one unit for the purpose of determining their fair market value.

One final issue, raised by condemn- or, requires attention. Condemnor contends that if a single verdict for damages is returned in an amount less than the combined total of the separate amounts fixed by the commissioners in their report, it would be impossible to determine where and in what amounts liability would attach regarding the excess, all to condemnor’s irreparable harm and prejudice. Con-demnor hypothesizes that some or all of the original named defendants other than con-demnee might be liable for some portion of any excess that might theoretically arise. The issue which condemnor seeks to raise is purely abstract because the record fails to disclose that any of the other named defendants withdrew any part of the money paid into court by condemnor in response to the commissioners’ report. The only inkling that the money was withdrawn is reflected by the judgments entered by the trial court which indicate that all the money representing the commissioners’ awards was withdrawn solely by condemnee. Thus, the state of the record relegates the issue sought to be raised by condemnor in this case to a non-justiciable status. This court is quick to acknowledge that the abstract issue raised by condemnor involves virtually unlimited peripheral and core issues, albeit imaginary in this case, never addressed in any of the briefs. Assuming, arguendo, that the presently abstract issue ripens into reality in a future case, this court suggests, but expressly refrains from holding, that the debacle envisioned by condemnor could be obviated by fixing respective liabilities for any excess among individual defendants on the same percentage basis which the amount of each individual defendant’s distributed portion of the commissioners’ award bears to the sum total of all the commissioners’ awards paid out for each and every parcel subsumed by a single jury verdict, such being consistent with and permitting application of the formula prescribed by § 523.053.3, RSMo 1969.

Reversed and remanded for a new trial in conformity with this opinion.

All concur.

      . Evidence reflecting the facts set forth in this paragraph, as well as evidence of a comparable vein, is considered solely with regard to the bearing it may have on the question of con-demnee’s good faith in acquiring the five parcels of land.

      . Condemnor relies on State ex rel. State Highway Comm’n v. Commonwealth Drive-In Theatres, Inc., 413 S.W.2d 526 (Mo.App.1967). A reading of said case reveals that the facts therein are inapposite the case at hand.