author: RENDLEN, Judge. CLEMENS, Judge

text:
    Dr. Edward L. EYERMAN et al., Plaintiffs-Appellants, v. MERCANTILE TRUST CO., N.A., et al., Defendants-Respondents.
    No. 35699.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 22, 1975.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 12, 1975. Application to Transfer Denied July 14, 1975.

      Armstrong, Teasdale, Kramer & Vaughan, Edwin S. Fryer, St. Louis, for plaintiffs-appellants.
    Harry W. Kroeger, Lashly, Caruthers, Rava, Hyndman & Rutherford, Michael C. Walther, Thompson, Mitchell, Douglas, Neill, Guerri & Elbert, Fred E. Arnold, St. Louis, for defendants-respondents.
   RENDLEN, Judge.

Plaintiffs appeal from denial of their petition seeking injunction to prevent demolition of a house at # 4 Kingsbury Place in the City of St. Louis. The action is brought by individual neighboring property owners and certain trustees for the Kingsbury Place Subdivision. We reverse.

Louise Woodruff Johnston, owner of the property in question, died January 14, 1973, and by her will directed the executor “. to cause our home at 4 Kingsbury Place . to be razed and to sell the land upon which it is located . . . and to transfer the proceeds of the sale . to the residue of my estate.” Plaintiffs assert that razing the home will adversely affect their property rights, violate the terms of the subdivision trust indenture for Kingsbury Place, produce an actionable private nuisance and is contrary to public policy.

The area involved is a “private place” established in 1902 by trust indenture which provides that Kingsbury Place and Kings-bury Terrace will be so maintained, improved, protected and managed as to be desirable for private residences. The trustees are empowered to protect and preserve “Kingsbury Place” from encroachment, trespass, nuisance or injury, and it is “the intention of these presents, forming a general scheme of improving and maintaining said property as desirable residence property of the highest class.” The covenants run with the land and the indenture empowers lot owners or the trustees to bring suit to enforce them.

Except for one vacant lot, the subdivision is occupied by handsome, spacious two and three-story homes, and all must be used exclusively as private residences. The indenture generally regulates location, costs and similar features for any structures in the subdivision, and limits construction of subsidiary structures except those that may beautify the property, for example, private stables, flower houses, conservatories, play houses or buildings of similar character.

On trial the temporary restraining order was dissolved and all issues found against the plaintiffs.

Defendants question plaintiffs’ standing to bring this suit, arguing that plaintiffs are not parties in interest who may invoke the rights of beneficiaries of the will against a trustee to enforce a trust or enjoin its breach, citing Restatement, Second, Trusts § 200. This is not such a suit. Plaintiffs’ action is not to invoke the rights of beneficiaries of the will for enforcement of a trust or to enjoin its breach; instead, they seek protection of competing interests shared by themselves and the general community against a capricious condition of a will directing the defendant-executor to destroy estate property. If appellants are successful, important rights personal to plaintiffs and the public will be vindicated and it is only incidental that the effect on decedent’s estate will increase funds available for distribution to the beneficiaries. Here the gift is not a devise of particular land to specific beneficiaries, but instead testatrix’s house is to be razed and the lot converted to cash. From this we find no intent to preserve the land for a settled purpose or the use of any person or group; instead, it becomes a gift of money, indefinite as to amount, for the residual estate.

The issues, simply stated, involve: (1) Private nuisance; (2) enforcement of restrictive covenants and (3) public policy.

Plaintiffs clearly have standing to raise the issues of nuisance abatement and enforcement of the restrictive covenants in the subdivision indenture. Persons threatened with wrongful interference of property rights may seek injunction against a threatened nuisance, Lee v. Rolla Speedway, Inc., 494 S.W.2d 349 (Mo.1973), and the trust indenture regulating Kingsbury Place empowers the trustees or any property owner to bring suit to enforce the covenants. Under Rule 52.01 trustees of an express trust may bring a civil action in their own names in such representative capacity. As to plaintiffs’ standing to raise the public policy issue, we must determine whether plaintiffs alleged a legally protec-tible interest. Allen v. Coffel, 488 S.W.2d 671, 674 (Mo.App.1972); Smith v. Cowen, 350 S.W.2d 96 (Mo.App.1961); Rule 52.01. Though defendants cite no authority on the question of whether private individuals have a legally protectible interest sufficient to give them standing to raise public policy issues, the question has been examined by federal courts in recent years. In United States v. S.C.R.A.P., 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), the Supreme Court held that members of an environmental organization had standing to challenge a railroad surcharge on shipping rates of recyclable materials on allegation that the higher rates would discourage the use of recyclable waste materials and promote increased use of new raw materials, thus adversely affecting the environment. Plaintiffs pleaded, more specifically, the environment surrounding their legal residences would be affected, causing them direct, personal injury. The Supreme Court recognized the test for standing as whether plaintiffs alleged that they had been or will in fact be perceptibly harmed by the challenged action, not merely that they can imagine circumstances in which they might be harmed or that the actions are generally undesirable. This concept was restated in Coalition for the Environment v. Volpe, 504 F.2d 156, 165 (8th Cir. 1974), noting a dual test of whether the challenged action will cause plaintiffs injury in fact, and whether the injury is within the “zone of interests” created by statutes which plaintiffs contended were being violated, suggesting the need for a causal relationship between the action challenged and the injury complained of.

In Volpe the 8th circuit granted standing to individuals living near a property development who alleged that they would be injured by increased traffic and loss of open space. According to the court, such allegations constituted “statements of specific injury experienced by ascertainable individuals who reside near or pass through the affected area.” Coalition for the Environment v. Volpe, supra at 167. These considerations are applicable even when plaintiffs raise aesthetic or environmental interests which they wish to protect, or that these interests may be common to the entire community, so long as the named plaintiffs are threatened with specific, personal injury. “Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection . . . ” Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). See United States v. S.C.R.A.P., supra, 412 U.S. at 687, 93 S.Ct. 2405.

Whether # 4 Kingsbury Place should be razed is an issue of public policy involving individual property rights and the community at large. The plaintiffs have pleaded and proved facts sufficient to show a personal, legally protectible interest.

Demolition of the dwelling will result in an unwarranted loss to this estate, the plaintiffs and the public. The uncon-tradicted testimony was that the current value of the house and land is $40,000.00; yet the estate could expect no more than $5,000.00 for the empty lot, less the cost of demolition at $4,350.00, making a grand loss of $39,350.00 if the unexplained and capricious direction to the executor is effected. Only $650.00 of the $40,000.00 asset would remain.

Kingsbury Place is an area of high architectural significance, representing excellence in urban space utilization. Razing the home will depreciate adjoining property values by an estimated $10,000.00 and effect corresponding losses for other neighborhood homes. The cost of constructing a house of comparable size and architectural exquisiteness would approach $200,000.00.

The importance of this house to its neighborhood and the community is reflected in the action of the St. Louis Commission on Landmarks and Urban Design designating Kingsbury Place as a landmark of the City of St. Louis. This designation, under consideration prior to the institution of this suit, points up the aesthetic and historical qualities of the area and assists in stabilizing Central West End St. Louis. It was testified by the Landmarks Commission chairman that the private place concept, once unique to St. Louis, fosters higher home maintenance standards and is among the most effective methods for stabilizing otherwise deteriorating neighborhoods. The executive director of Heritage St. Louis, an organization operating to preserve the architecture of the city, testified to the importance of preserving Kingsbury Place intact:

“The reasons [sic] for making Kingsbury Place a landmark is that it is a definite piece of urban design and architecture. It starts out with monumental gates on Union. There is a long corridor of space, furnished with a parkway in the center, with houses on either side of the street, The existence of this piece of architecture depends on the continuity of the [sic] both sides. Breaks in this continuity would be as holes in this wall, and would detract from the urban design qualities of the streets. And the richness of the street is this belt of green lot on either side, with rich tapestry of the individual houses along the sides. Many of these houses are landmarks in themselves, but they add up to much more . I would say Kingsbury Place, as a whole, with its design, with its important houses . . . is a most significant piece of urban design by any standard.”

To remove # 4 Kingsbury from the street was described as having the effect of a missing front tooth. The space created would permit direct access to Kingsbury Place from the adjacent alley, increasing the likelihood the lot will be subject to uses detrimental to the health, safety and beauty of the neighborhood. The mere possibility that a future owner might build a new home with the inherent architectural significance of the present dwelling offers little support to sustain the condition for destruction.

We are constrained to take judicial notice of the pressing need of the comxnu-nity for dwelling units as demonstrated by recent U.S. Census Bureau figures showing a decrease of more than 14% in St. Louis City housing units during the decade of the 60’s. This decrease occurs in the face of housing growth in the remainder of the metropolitan area. It becomes apparent that no individual, group of individuals nor the community generally benefits from the senseless destruction of the house; instead, all are harmed and only the caprice of the dead testatrix is served. Destruction of the house harms the neighbors, detrimentally affects the community, causes monetary loss in excess of $39,000.00 to the estate and is without benefit to the dead woman. No reason, good or bad, is suggested by the will or record for the eccentric condition. This is not a living person who seeks to exercise a right to reshape or dispose of her property; instead, it is an attempt by will to confer the power to destroy upon an executor who is given no other interest in the property. To allow an executor to exercise such power stemming from apparent whim and caprice of the testatrix contravenes public policy.

The Missouri Supreme Court held in State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S.W. 806, 808 (banc 1918), that the taking of property by inheritance or will is not an absolute or natural right but one created by the laws of the sovereign power. The court points out the state “may foreclose the right absolutely, or it may grant the right upon conditions precedent, which conditions, if not otherwise violative of our Constitution, will have to be complied with before the right of descent and distribution (whether under the law or by will) can exist.” Further, this power of the state is one of inherent sovereignty which allows the state to “say what becomes of the property of a person, when death forecloses his right to control it.” McClintock v. Guinotte, supra at 808, 809. While living, a person may manage, use or dispose of his money or property with fewer restraints than a decedent by will. One is generally restrained from wasteful expenditure or destructive inclinations by the natural desire to enjoy his property or to accumulate it during his lifetime. Such considerations however have not tempered the extravagance or eccentricity of the testamentary disposition here on which there is no check except the courts.

In the early English case of Egerton v. Brownlow, 10 Eng.Rep. 359, 417 (H.L.C. 1853), it is stated: “The owner of an estate may himself do many things which he could not (by a condition) compel his successor to do. One example is sufficient. He may leave his land uncultivated, but he cannot by a condition compel his successor to do so. The law does not interfere with the owner and compel him to cultivate his land, (though it may be for the public good that land should be cultivated) so far the law respects ownership; but when, by a condition, he attempts to compel his successor to do what is against the public good, the law steps in and pronounces the condition void and allows the devisee to enjoy the estate free from the condition.” A more recent application of this principle is found in M’Caig’s Trustees v. Kirk-Session of the United Free Church of Lismore, et al., 1915 Sess.Cas. 426 (Scot.). There, by codicil to her will, testatrix ordered certain statues erected to honor her family in a tower built in the form of an amphitheater on a hilb Balustrades were to be erected so that even the public would have no access inside the tower. Special provision was made for keeping out the public and the ground enclosed was expressly declared to be a private enclosure. There were no living descendants of any member of the family who might, if so permitted, take pleasure in contemplating the proposed statues. The court states at 434: “If a bequest such as in Miss M’Caig’s codicil were held good, money would require to be expended in perpetuity merely gratifying an absurd whim which has neither reason nor public sentiment in its favor.” In striking down the provisions of the codicil, the court further notes that there is indeed a “difference between what a man, uncognosed, may do at his own hand, and what the law will support under the provisions of his will . . . therefore, without being illegal in the sense of being contrary to any express rule of the common law or contrary to any statute, the principle of public policy will prevent such post-mortem expenditure. Whether the act is sufficiently contrary to public policy to warrant the court’s interference must depend on the degree to which it is against public policy.” The court further observed that the erection of the eleven statues “would be of no benefit to anyone except those connected with the carrying out of the work, for whose interest she expresses no concern.” M’Caig’s Trustees v. Kirk-Session of the United Free Church of Lis-more, et al., supra at 438. In the case sub judice, testatrix similarly expressed no such concern; nothing in the will or record indicates an intent to benefit any razing company called upon to destroy her beautiful home.

In the case of In re Scott’s Will, Board of Commissioners of Rice County v. Scott et al., 88 Minn. 386, 93 N.W. 109 (1903), the Supreme Court of Minnesota stated, when considering the provision of a will directing the executor to destroy money belonging to the estate: “We assume, for purpose of this decision, that the direction in the codicil to the executor to destroy all of the residue of the money or cash or evidences of credit belonging to the estate was void.” In re Scott’s Will, supra at 109. See also Restatement, Second, Trusts § 124, at 267: “Although a person may deal capriciously with his own property, his self interest ordinarily will restrain him from doing so. Where an attempt is made to confer such a power upon a person who is given no other interest in the property, there is no such restraint and it is against public policy to allow him to exercise the power if the purpose is merely capricious.” The text is followed by this illustration: “A bequeaths $1,000.00 to B in trust to throw the money into the sea. B holds the money upon a resulting trust for the estate of A and is liable to the estate of A if he throws the money into the sea.” Restatement, supra at 267.

In Brown v. Burdett, 21 Chan.Div. 667 (Eng.1882), the testatrix devised her house with directions that the doors and windows be boarded, shuttered, bricked and sealed, to be held by the trustees in this wasteful manner for twenty years and thereafter to the named beneficiaries as tenants in common. This provision was stricken by the court at 673: “I think I must ‘unseal’ this useless, undisposed of property.” The provision of the will was void and found to be a nullity and the court declared that the house and premises were undisposed of by will for a term of twenty years from the testatrix’s death.

In Restatement, Second, Trusts § 124(g), at 267, the writers suggest this hypothesis as an illustration of the principle involved in Brown v. Burdett, supra:

“A devises a house and lot to B ‘in trust’ to block up the windows and doors and leave the house vacant for 20 years. B holds the house and lot upon a resulting trust for the estate of A and is liable to the estate of A if he blocks up the windows and doors.”

It is important to note that the purposes of testatrix’s trust will not be defeated by injunction; instead, the proceeds from the sale of the property will pass into the residual estate and thence to the trust estate as intended, and only the capricious destructive condition will be enjoined.

In Colonial Trust Co. v. Brown et al., 105 Conn. 261,135 A. 555 (1926) the court invalidated, as against public policy, the provisions of a will restricting erection of buildings more than three stories in height and forbidding leases of more than one year on property known as “The Exchange Place” in the heart of the City of Water bury. The court stated:

“ ‘As a general rule, a testator has the right to impose such conditions as he pleases upon a beneficiary as conditions precedent to the vesting of an estate in him, or to the enjoyment of a trust estate by him as cestui que trust. He may not, however, impose one that is uncertain, unlawful, or opposed to public policy.’
* * * * * *
In the instant case, the length of time during which the testator directed that the property should remain in the trust, and the complete uncertainty as to the individuals to whom it would ultimately go, preclude any thought of an intent on his part to forbid the cumbering of the property by long leases or the burdening of it with large buildings, lest the beneficiaries be embarrassed in the development of it along such lines as they might themselves prefer. The only other purpose which can be reasonably attributed to him is to compel the trustee to follow his own peculiar ideas as to the proper and advantageous way to manage such properties. That the restrictions are opposed to the interests of the beneficiaries of the trust and that they are imprudent and unwise is made clear by the statement of agreed facts, but that is not all, for their effect is not confined to the beneficiaries. The Exchange Place property is located at a corner of the public square in the very center of the city of Waterbury, in the heart of the financial and retail business district, is as valuable as any land in the city, and is most favorably adapted for a large building containing stores and offices, and the homestead is located in the region of changing character, so that its most available use cannot now be determined. To impress the restrictions in question upon these properties, as the statement of agreed facts makes clear, makes it impossible to obtain from them a proper income return or to secure the most desirable and stable class of tenants, requires for the maintenance of the buildings a proportion of income greatly in excess of that usual in the case of such properties, and will be likely to preclude their proper development and natural use. The effect of such conditions cannot but react disadvantageously upon neighboring properties, and to continue them, as the testator intended, for perhaps 75 years or even more, would carry a serious threat against the proper growth and development of the parts of the city in which the lands in question are situated. The restrictions militate too strongly against the interests of the beneficiaries and the public welfare to be sustained, particularly when it is remembered that they are designed to benefit no one, and are harmful to all persons interested, and we hold them invalid as against public policy.” l.c. 564. (Emphasis ours.)

See also Restatement, Second, Trusts § 166(b), pp. 348-349, and illustration at p. 349.

The term “public policy” cannot be comprehensively defined in specific terms but the phrase “against public policy” has been characterized as that which conflicts with the morals of the time and contravenes any established interest of society. Acts are said to be against public policy “when the law refuses to enforce or recognize them, on the ground that they have a mischievous tendency, so as to be injurious to the interests of the state, apart from illegality or immorality.” Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615, 620 (1946); Brawner v. Brawner, 327 S.W.2d 808, 812 (Mo. banc 1959).

Public policy may be found in the Constitution, statutes and judicial decisions of this state or the nation. In re Rahn’s Estate, 316 Mo. 492, 291 S.W. 120 (1927). But in a case of first impression where there are no guiding statutes, judicial decisions or constitutional provisions, “a judicial determination of the question becomes an expression of public policy provided it is so plainly right as to be supported by the general will.” In re Mohler’s Estate, 343 Pa. 299, 22 A.2d 680, 683 (1941). In the absence of guidance from authorities in its own jurisdiction, courts may look to the judicial decisions of sister states for assistance in discovering expressions of public policy. In re Rahn’s Estate, supra at 125.

Although public policy may evade precise, objective definition, it is evident from the authorities cited that this senseless destruction serving no apparent good purpose is to be held in disfavor. A well-ordered society cannot tolerate the waste and destruction of resources when such acts directly affect important interests of other members of that society. It is clear that property owners in the neighborhood of # 4 Kingsbury, the St. Louis community as a whole and the beneficiaries of testatrix’s estate will be severely injured should the provisions of the will be followed. No benefits are present to balance against this injury and we hold that to allow the condition in the will would be in violation of the public policy of this state.

Having thus decided, we do not reach the plaintiffs’ contentions regarding enforcement of the restrictions in the Kingsbury Place trust indenture and actionable private nuisance, though these contentions may have merit.

The judgment is reversed and the cause remanded to the Circuit Court to enter judgment as prayed.

DOWD, P. J., concurs.

CLEMENS, J., dissents in separate opinion.

CLEMENS, Judge

(dissenting).

I dissent.

My initial, but not dominant, concern is the inadequacy of plaintiffs’ brief. Despite the mandate of Rule 84.04(c) that an appellant’s brief present a concise statement of relevant facts, plaintiffs’ brief merely sets out separate testamentary summaries by each of ten witnesses. Such summaries are permissible to supplement, but not to supplant, a concise statement of relevant facts. Plaintiffs’ inexcusable breach imposes upon the court a burden we should not assume, and this appeal should be dismissed for failure to comply with Rule 84.04(c). Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223[3] (Mo.App.1972). In view of the majority opinion, however, I have considered the alternative of Rule 79.04, which allows us to rule a case on its merits if we find plain error constituting a miscarriage of justice. But I find no plain error here.

The simple issue in this case is whether the trial court erred by refusing to enjoin a trustee from carrying out an explicit testamentary directive. In an emotional opinion, the majority assumes a psychic knowledge of the testatrix’ reasons for directing her home be razed; her testamentary disposition is characterized as “capricious,” “unwarranted,” “senseless,” and “eccentric.” But the record is utterly silent as to her motives.

The majority’s reversal of the trial court here spawns bizarre and legally untenable results. By its decision, the court officiously confers a “benefit” upon testamentary beneficiaries who have never litigated or protested against the razing. The majority opinion further proclaims that public policy demands we enjoin the razing of this private residence in order to prevent land misuse in the City of St. Louis. But the City, like the beneficiaries, is not a party to this lawsuit. The fact is the majority’s holding is based upon wispy, self-proclaimed public policy grounds that were only vaguely pleaded, were not in evidence, and were only sketchily briefed by the plaintiffs.

The only plaintiffs in this ease are residents of Kingsbury Place and trustees under its indenture. In seeking to enjoin the removal of testatrix’ home at # 4 Kings-bury Place, these plaintiffs claim they are entitled to an injunction first, by virtue of language in the trust indenture; secondly, because the razing would constitute a nuisance; and thirdly on the ground of public policy. But plaintiffs have not shown the indenture bars razing testatrix’ home or that the razing would create a nuisance. And no grounds exist for ruling that the razing is contrary to public policy.

The Trust Indenture. Kingsbury Place is a “private place” established in 1902 by trust indenture. Except for one well-tended vacant lot (whose existence the majority ignores in saying the street minus # 4 Kingsbury Place would be like “a missing front tooth”) the trust indenture generally regulates size, constructions and cost of structures to be built on Kingsbury Place. It empowers the trustees to maintain vacant lots and to protect the street from “encroachment, trespass, nuisance and injury.” The indenture’s acknowledgment that vacant lots did and would exist shows that such lots were not to be considered an “injury.” The fact the indenture empowers the trustees to maintain vacant lots is neither an express nor an implied ban against razing residences. The indenture simply recognizes that Kingsbury Place may have vacant lots from time to time — as it now has — and that the trustees may maintain them — as they now do. The indenture itself affords plaintiffs no basis for injunc-tive relief.

Nuisance. Plaintiffs contend the non-existence of the Johnston dwelling would create a nuisance. Plaintiffs opined the home’s removal would be detrimental to neighbors’ health and safety, would lower property values in the area and would be undesirable aesthetically, architecturally, socially and historically. These opinions were based upon conjecture rather than upon a reasonable degree of certainty; hence, they were not binding on the trial court. Kinzel v. West Park Investment Corp., 330 S.W.2d 792[3] (Mo.1959); Abernathy v. Coca-Cola Bottling Co. of Jackson, 370 S.W.2d 175[1, 2] (Mo.App.1963). Plaintiffs’ witnesses made questionable comparisons with other neighborhoods and speculated a nuisance would arise if the dwelling were removed. These witnesses concluded the lot would thereafter remain vacant, because the trustees would breach their duty under the indenture to maintain the lot, and because the existing private police patrol would no longer function. None of these conclusions have bases in fact. The record reveals the one existing vacant lot on Kingsbury Place is well-maintained by the trustees; it does not constitute a nuisance. There is no reason to presume a second vacant lot would be left untended or that private police would cease patrolling. The facts do not support an inference that plaintiffs’ rights in the use of their own lands would be invaded by removing the Johnston home. They are not entitled to injunctive relief on the basis of imagined possibilities.

Public Policy. The majority opinion bases its reversal on public policy. But plaintiffs themselves did not substantially rely upon this nebulous concept. Plaintiffs’ brief contends merely that an “agency of the City of St. Louis has recently [?] designated Kingsbury Place as a landmark,” citing § 24.070, Revised Code of the City of St. Louis. Plaintiffs argue removal of the Johnston home would be “intentional . destruction of a landmark of historical interest.” Neither the ordinance cited in the brief nor any action taken under it were in evidence. Indeed, the Chairman of the Landmarks and Urban Design Commission testified the Commission did not declare the street a landmark until after Mrs. Johnston died. A month after Mrs. Johnston’s death, several residents of the street apparently sensed the impending razing of the Johnston home and applied to have the street declared a landmark. The Commissioner testified it was the Commission’s “civic duty to help those people.”

The majority opinion goes far beyond the public-policy argument briefed by plaintiffs. It suggests the court may declare certain land uses, which are not illegal, to be in violation of the City’s public policy. And the majority so finds although the City itself is not a litigant claiming injury to its interests. The majority’s public-policy conclusions are based not upon evidence in the lower court, but upon incidents which may have happened thereafter.

The court has resorted to public policy in order to vitiate Mrs. Johnston’s valid testamentary direction. But this is not a proper case for court-defined public policy.

In Asel v. Order of Commercial Travelers, 355 Mo. 658, 197 S.W.2d 639[1] (banc 1946), the court viewed as contrary to public policy any act that is inherently vicious and contrary to natural justice. The Asel court further cited as the definitive statement of public policy “the principle which declares that no one can lawfully do that which has a tendency to be injurious to the public welfare. 12 Am.Jur., § 666, now 12 Am. Jur.2d, § 175. But plaintiffs’ theory below was that only the plaintiffs, not the public, were injured by the imminent demolition of the Johnston home.

The leading Missouri case on public policy as that doctrine applies to a testator’s right to dispose of property is In re Rahn’s Estate, 316 Mo. 492, 291 S.W. 120 [1, 2] (banc 1927), cert. den. 274 U.S. 745, 47 S.Ct. 591, 71 L.Ed. 1325. There, an executor refused to pay a bequest on the ground the beneficiary was an enemy alien, and the bequest was therefore against public policy. The court denied that contention: “We may say, at the outset, that the policy of the law favors freedom in the testamentary disposition of property and that it is the duty of the courts to give effect to the intention of the testator, as expressed in his will, provided such intention does not contravene an established rule of law.” And the court wisely added, “it is not the function of the judiciary to create or announce a public policy of its own, but solely to determine and declare what is the public policy of the state or nation as such policy is found to be expressed in the Constitution, statutes, and judicial decisions of the state or nation, not by the varying opinions of laymen, lawyers, or judges as to the de-

mands or the interests of the public.” And, in cautioning against judges declaring public policy the court stated: “Judicial tribunals hold themselves bound to the observance of rules of extreme caution when invoked to declare a transaction void on grounds of public policy, and prejudice to the public interest must clearly appear before the court would be warranted in pronouncing a transaction void on this account.” In resting its decision on public-policy grounds, the majority opinion has transgressed the limitations declared by our Supreme Court in Bahn’s Estate.

The right of these plaintiffs to injunctive relief is by no means clear and injunction is “a harsh remedy, granted only in clear cases.” American Pamcor, Inc., v. Klote, 438 S.W.2d 287[1] (Mo.App.1969). It requires judicial imagination to hold, as the majority does, that the mere presence of a second vacant lot on Kingsbury Place violates public policy.

As much as our aesthetic sympathies might lie with neighbors near a house to be razed, those sympathies should not so interfere with our considered legal judgment as to create a questionable legal precedent. Mrs. Johnston had the right during her lifetime to have her house razed, and I find nothing which precludes her right to order her executor to raze the house upon her death. It is clear that “the law favors the free and untrammeled use of real property.” Gibbs v. Cass, 431 S.W.2d 662[2] (Mo. App.1968). This applies to testamentary dispositions. Mississippi Valley Trust Co. v. Ruhland, 359 Mo. 616, 222 S.W.2d 750[2] (1949). An owner has exclusive control over the use of his property subject only to the limitation that such use may not substantially impair another’s right to peaceably enjoy his property. City of Fredricktown v. Osborn, 429 S.W.2d 17[2, 3] (Mo.App.1968), Reutner v. Vouga, 367 S.W.2d 34[11—13] (Mo.App.1963). Plaintiffs have not shown that such impairment will arise from the mere presence of another vacant lot on Kingsbury Place.

I find no plain error in the trial court’s denial of injunctive relief, and on the merits I would affirm the trial court’s judgment. Because of plaintiffs’ defective brief, however, I would dismiss the appeal.

      . All references are to V.A.M.R. unless otherwise indicated.

      . #4 Kingsbury Place was rated as being “highly architecturally significant”.

      . State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 424 S.W.2d 73[11] (Mo.App.1968); State ex rel. State Highway Commission v. Galeener, 402 S.W.2d 336[2] (Mo.1966); McCormick, Evidence (2nd Ed.) § 331.

      . OWNER OCCUPIED UNITS
      1960 1970 Change
      Metropolitan Area
      without St. Louis 269,873 347,443 +29%
      St. Louis City 68,967 62,359 -10%
      RENTER OCCUPIED UNITS
      Metropolitan Area
      without St. Louis 82,539 128,005 +55%
      St. Louis City 153,771 127,620 -17%
      The figure of 14% represents the total decline of owner occupied and renter occupied units.
      SOURCE: Census of Housing, United States Census Bureau, St. Louis SMSA Abstract.

      . The dissenting opinion suggests this case be decided under the general rule that an owner has exclusive control and the right to untrammeled use of real property, citing Reutner v. Vouga, 367 S.W.2d 34 (Mo.App.1963), City of Fredericktown v. Osborn, 429 S.W.2d 17 (Mo.App.1968), and Gibbs v. Cass, 431 S.W.2d 662 (Mo.App.1968). Although maxims of this sort are attractive in their simplicity, standing alone they seldom suffice in a complex case. None of the cited cases pertains to the qualified right of testatrix to impose, post mortem, a condition upon her executor requiring an unexplained destruction of estate property; instead, they involve, respectively, surface water, use of property for commercial purposes and restrictive covenants as to subdivision lot sizes. Each acknowledges the principle of an owner’s “free use” as the starting point but all recognize competing interests of the community and other owners of great importance. Accordingly, the general principle of “free and untrammeled” use is markedly narrowed, supporting in each case a result opposite that urged by the dissent in the case at bar.

      , See also Phoenix Assurance Co. of N. Y. v. Royale Investment Co., 393 S.W.2d 43[1] (Mo.App.1965), holding “public policy is not an unknown and variable quantity upon which a valid judgment may be based. It is to be determined by the Constitution, the laws, and the judicial decisions of the State.”

      . In his treatise on The Nature of the Judicial Process, p. 141, Mr. Justice Benjamin Cardozo discussed the role of the judge as a legislator and warned: “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.”


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Donald KESSLER, Appellant, v. STATE of Missouri, Respondent.
    No. 36640.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 3, 1975.
    Larry S. Phillips, Edina, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas J. Ka-vanaugh, Asst. Atty. Gen., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant Donald Kessler appeals from trial court’s denial of his Rule 27.26, V.A.M.R., motion to withdraw pleas of guilty and to modify or vacate conviction of two separate charges of arson. He contends his guilty pleas were induced by his inculpatory statement given law officers upon their assur-anee be would be given concurrent two-year sentences and granted probation; he was sentenced to consecutive terms of five years and three years, respectively. We affirm.

Kessler was arrested on September 13, 1972 and charged with two counts of arson that occurred on September 4, 1972 and September 11, 1972. He was interrogated on the day of his arrest by Sergeant Bair of the Missouri State Highway Patrol and Lewis County Sheriff Pearl Hicks. He was represented by court-appointed counsel, Mr. Dennis Smith. After consultation with Mr. Smith, movant pleaded guilty to both counts, requesting probation.

Before accepting Kessler’s guilty pleas, the trial court determined movant understood the two sentences could run consecutively for a total of ten years; that the court was not bound by any requests made by movant, his attorney or the State and that granting probation was within the discretion of the court. The court then sentenced him to five and three years, to run consecutively, and denied the request for probation.

Kessler then filed a Rule 27.26 motion. He testified that at the time of his arrest and interrogation he was intoxicated. He stated he gave a statement during his interrogation on the promise he would get two years for each offense, to run concurrently, and that he would receive probation. He contended Mr. Smith induced him to plead guilty, promising he would be placed on probation.

Sergeant Bair and Sheriff Hicks testified no promises were made to movant. Mr. Smith testified he informed movant of his right to a jury or bench trial and that he emphasized, in oral meetings and in a letter to Kessler, he could not promise movant would receive probation and assessment of punishment would be in the sole discretion of the judge.

Appellate review is limited to the determination of whether the findings, conclusions and judgments of the trial court are clearly erroneous. Rule 27.26(j), V.A.M.R., State v. Mountjoy, 420 S.W.2d 316 (Mo.1967). The trial court determines whether allowing movant to withdraw his plea corrects manifest injustice. Rule 27.-25, V.A.M.R. In this determination the trial court, as the trier of facts, assesses the credibility of witnesses. On review, this court will defer to the trial court’s determination of credibility unless abuse of discretion is shown. Walster v. State, 438 S.W.2d 1, 3 (Mo.1969). The trial court found the court’s questions before accepting movant’s guilty pleas were comprehensive and his answers unequivocal. State v. Jackson, 514 S.W.2d 638, 641[4] (Mo.App.1974). The trial court denied appellant’s Rule 27.26 motion and found his guilty pleas voluntarily and intelligently made, with effective representation by counsel. The findings of the trial court are presumptively correct and are to be sustained unless clearly erroneous. Crosswhite v. State, 426 S.W.2d 67 (Mo.1968).

Before accepting movant’s guilty plea the trial court ascertained he understood the consequences and that he was not induced to enter the plea on the basis of false hope or ill-founded expectations. Rule 25.04, State v. Roach, 447 S.W.2d 553, 556[3—5] (Mo.1969). Movant was present at the hearing of his Rule 27.26 and was represented by counsel at all times. The trial court had the opportunity to assess the credibility of movant’s testimony and the conflicting testimony of Sergeant Bair, Sheriff Hicks and Mr. Smith. It is within the discretion of the trial court to disbelieve movant and believe the other witnesses. The evidence does not leave us with the definite or firm conviction a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1947).

We hold it cannot be said the trial court’s findings, conclusions and judgment are clearly erroneous and judgment is affirmed.

KELLY and STEWART, JJ., concur.


author: HARBISON, Justice.

text:
    James Lee WARPOOL, Jr., Appellant, v. Ida Mae Warpool FLOYD et al., Appellees.
    Supreme Court of Tennessee.
    March 24, 1975.
    Rehearing Denied June 9, 1975.
    Branstetter, Moody & Kilgore, Carrol D. Kilgore, Nashville, for appellant.
    G. Howard Doty, J. F. Doty, Nashville, for appellees.
   OPINION

HARBISON, Justice.

This case presents for decision the issue of whether children of half-brothers and sisters of an intestate take equal shares of his personal property with children of brothers and sisters of the whole blood. The chancellor held that they are entitled to equal shares, and the administrator has appealed here, seeking appropriate instructions as to the distribution of intestate personal property.

The decedent had one full brother and sister, both of whom predeceased him. The sister died without issue, but the brother left one child surviving. He is the administrator as well as the full nephew by blood of the decedent.

Decedent, who never married, was predeceased by both parents. His father, however, by a previous marriage had ten children, all of whom had predeceased the decedent. Eight of these, however, left surviving children, representatives of whom were named as defendants in the court below. There are some twenty-eight of these nephews and nieces of the half blood.

Under the law of intestate distribution in this state, there is no representation among collateral kindred, after the children of brothers and sisters. T.C.A. § 31-202. Children of brothers and sisters, however, do take by representation, and it has been held that they take the intestate’s personal property per stirpes, rather than per capita. Housley v. Raster, 176 Tenn. 174, 140 S.W.2d 146 (1940).

The statutes governing distribution of intestate personal property give priority to the surviving spouse and/or children of a decedent. Where there are no persons in these categories, however, the parents are preferred. The statutes then provide as follows:

“If no father or mother, to brothers and sisters, or the children of such brothers and sisters representing them, equally.” T.C.A. § 31-201(5).

The statutes provide that if there are neither brothers, sisters, nieces nor nephews, then the personal estate is distributed “to every of the next of kin of the intestate who are in equal degree, equally.” T.C.A. § 31-201(6).

In the case of Kyle v. Moore, 35 Tenn. 183 (1855), this Court expressly held that brothers and sisters of half blood shared equally in intestate personal property with brothers and sisters of the whole blood.

The Court noted that under the statutes then in effect, which were derived from earlier North Carolina statutes, where there were no children, distribution was to be made “to the next of kindred, in equal degree, of or unto the intestate, and their legal representatives, and in no other manner whatsoever.”

The Court noted that in the computation of the degrees of kinship, there was no distinction between the half blood and the whole blood. The Court said:

“There is no law giving any preference to the half blood on the side of the transmitting ancestor, to the exclusion of the other line, in the distribution of personalty.” 35 Tenn. at 185.

The Court in that case took note of express provisions in the statutes governing the descent of real property, which had altered the feudal policy of earlier English law, excluding persons of the half blood entirely. Statutes in effect at the time of the decision of the Kyle case, and still in effect today, do make certain distinctions between acquired and inherited realty, insofar as inheritance by half-brothers or half-sisters are concerned. T.C.A. § 31-101(2) and (3).

These “ancestral property” provisions were not part of the law of distribution of personal property when the Kyle case was decided, nor have they since been included therein.

Prior to the decision of the Kyle case, and consistent with it, the Court had held in the case of Deadrick v. Armour, 29 Tenn. 588 (1850) that brothers and sisters of the whole blood and half blood shared equally in intestate personal property.

The Kyle case has not been overruled or modified by any subsequent decision of this Court, and appellant concedes that it would be controlling here except for certain changes in the statutes of distribution which occurred in the revision and codification of the state law, resulting in the Code of 1858. For the first time, in that code, there were included provisions for inheritance by brothers and sisters and their children, if the decedent did not leave a surviving spouse, child or parent.

It is insisted that because the words “brothers and sisters” were used in the Code of 1858, without qualification and without reference to relatives of the half blood, the Legislature intended to prefer brothers and sisters of the whole blood to those of the half blood.

This Court is unable to find such a legislative intent in the Code of 1858. It is true that the “ancestral property” statutes governing real estate were then in force, and that they contained explicit reference to half-brothers and half-sisters. The argument before us is that if the legislature had intended for siblings of the half blood to share fully with those of the whole blood, the legislature would have so provided.

It is equally plausible to assume, however, that if the legislature had intended to exclude half-brothers and half-sisters or to put them in a less-preferred category than full siblings, it could easily have so provided. Since it did not do so, it is the opinion of the Court that the legislature did not so intend, and that the holdings in the Kyle and Deadrick cases, supra, were not intended to be modified.

In the case of Housley v. Laster, 176 Tenn. 174, 140 S.W.2d 146 (1940), this Court said:

“Distribution of personalty was controlled in this State at an early date by chapter 3 of the North Carolina Acts of 1766; later by section 2429 of the Code of 1858; and now by section 8389 of the Code of 1932. While these several statutes vary in phraseology, all provide that children of brothers and sisters, nephews and nieces of intestate, take the intestate’s personalty by representation, that is, per stirpes.” 176 Tenn. at 176, 140 S.W.2d at 146.

The Court cited cases decided both before and after the Code of 1858, and did not find in that code an intention on the part of the legislature to change prior law with regard to the method of inheritance by nieces and nephews.

We are of the opinion that the decision of the chancellor is correct and is in accord with what has been the general understanding of the Bench and Bar of this state for over one hundred years. See 2 Phillips’ Pritchard, Law of Wills and Administration of Estates, § 773 (3rd ed. 1955).

While authorities from other states are not particularly helpful in matters of local law such as this, the courts generally have not looked with favor upon excluding relatives of the half blood in the absence of an express statutory provision. See 23 Am. Jur.2d, Descent and Distribution § 47; 26A C.J.S., Descent and Distribution § 36. The proposed Uniform Probate Code § 2-107 provides:

“Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.”

Finding no legislative history which would lead us to believe that the General Assembly intended to- prefer siblings of the whole blood over those of the half blood, we hold that half-brothers and half-sisters share equally with full brothers and sisters in the distribution of intestate personalty, and that their children, taking by representation, take equally with the children of full brothers and sisters.

The decree of the chancellor is affirmed at the cost of appellants.

FONES, C. J., and COOPER, BROCK and HENRY, JJ., concur.


author: TODD, Judge.

text:
    Charles W. SPEIGHT, Commissioner of Highways, etc., Petitioner-Appellant, v. Jim LOCKHART, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 28, 1975.
    Certiorari Denied by Supreme Court June 9, 1975.

      R. A. Ashley, Jr., Atty. Gen., State of Tenn., Russell G. Lazenby, Jr., Asst. Atty. Gen., State of Tenn., Nashville, for petitioner-appellant.
    Prank Buck, McAllen Foutch, Smithville, for defendant-appellant.
   OPINION

TODD, Judge.

In this eminent domain proceeding, there was a taking of a strip 25 feet in depth across the entire 785 feet frontage of defendant’s land for the purpose of widening State Highway 56. In addition, a 1,000 square foot drainage easement was impressed upon the remainder of the tract. The jury awarded $1,750.00 for the property taken and $5,000.00 for incidental damages to the remainder. Both parties have appealed.

In the Trial Court and in this Court, issues arise from the plans for widening the highway which provide only one entrance to defendant’s property from the highway and the statutes providing for regulation of entrances to state highways which statutes are as follows:

“54-540. Entrances into highways— Regulations. — In order to prevent the obstruction or restriction of the flow of water along, across or under any highway on the state highway system, the impounding of water upon or within any such highway, the damaging in any way or manner of any such highway, or the interference with or creation of any damage or hazard to public travel, the commissioner of highways of the state of Tennessee is hereby authorized and directed to make reasonable and proper rules and regulations governing the con struction of entrances into highways in the state of Tennessee on the state highway system. [Acts 1955, eh. 38, § 1; impl. am. Acts 1959, ch. 9, § 3.]
“54-541. Agreement prior to construction mandatory. — No person, firm, corporation or municipality shall hereafter construct any entrance into such highway without first having agreed to construct the same in accordance with said rules and regulations of the commissioner of highways. [Acts 1955, ch. 38, § 2; impl. am. Acts 1959, ch. 9, § 3.]
“54-542. Penalty for failure to comply. — Any person, firm, or corporation who shall hereafter construct any entrances into any highway on the state highway system without first having complied with the provisions of §§ 54-540 —54-542 shall be guilty of a misdemean- or and punished accordingly. [Acts 1955, ch. 38, § 3.]” (Emphasis Supplied)

It is the theory and insistence of the defendant landowner that the enactment of the foregoing statutes created a potential limitation and burden upon the rights of access to the public highway in respect to every property fronting upon a state highway in the State of Tennessee. Defendant concedes that said potential limitation or burden did not immediately authorize a suit in inverse condemnation by every potentially affected landowner; however defendant does insist that when any potentially affected landowner is before the courts in a proceeding for assessment of damages to his property in connection with the abutting highway, such owner must assert and collect his damages for said statutory impairment of his rights or be forever barred from relief, citing Hawkins v. Dawn, 208 Tenn. 544, 347 S.W.2d 480 (1961). For this reason, defendant insists that he is entitled to recover in the present action his damages for impairment of access rights under the quoted statutes. The Trial Judge agreed with defendant and instructed both witnesses and jury to consider the impairment of rights under said statutes.

Defendant also insists that the quoted statutes are unconstitutional and that the Trial Judge erred in not so holding.

The petitioner insists that said statutes are constitutional and entirely immaterial to the issues in the present case. Petitioner concedes that defendant has certain access rights to the public way, but denies that any such rights are being acquired by this proceeding. Petitioner insists that any action for denial of access must await an overt denial of access and may not be based upon a prospective possibility of denial.

As illustration of the powers being exercised by the petitioner under said statutes, there has been filed in this record a booklet entitled, “Rules and Regulations for Constructing Driveways on State Highway Right of Way,” effective April 3, 1967.

The foreword of said booklet is as follows:

“The following rules and regulations are designed to afford easy and safe ingress and egress to roadside establishments adjacent to the State’s highways and to afford maximum protection to the traveling public, and to insure a uniform system of construction on the State Highway right-of-way.”
“These rules and regulations are based on experience of the Tennessee Department of Highways and recommendations of the Committee on Planning and Design Policies of the American Association of State Highway Officials.”

Said regulations contain a comprehensive scheme of requirements for all driveways entering state highways, including “Buffer Area,” “Driveway Width,” “Driveway Angle,” “Edge Clearance,” “Corner Clearance,” “Setback” “Distance between driveways,” “Parking,” “Number and Arrangement of Driveways,” “Sight Distance,” “Driveway Surfacing and Profile,” “Curbs and Guide Posts,” “Drainage,” and “Signs.” A series of 15 drawings illustrate required designs of driveways both on the State right-of-way and upon private property outside the State right-of-way.

Sections XIV and XV of said regulations describe procedure for obtaining a permit to construct a driveway on a State Highway Right-of-Way. An applicant is required to furnish the following:

1. Location of property
2. Plot plan of property
3. Copy of deed (proof of ownership)
4. Explanation of proposed usage of property
5. Any other information which might affect the access design.

The applicant is required to approve design of the proposed entrance as prepared by the state highway engineers. The applicant is also required to post a cash bond of from $100.00 to $500.00, or a surety bond in the amount of $2,500.00 for a single project or $10,000.00 for a “Statewide Bond.”

There is also a reference to the maintenance of Liability Insurance “under the terms of the permit issued.”

In Tennessee, the rights of abutting property owners to unobstructed access to the public way have been repeatedly recognized.

In Stewart v. Illinois Central Railroad Company, 143 Tenn. 146, 225 S.W. 1042 (1920), it was held that a city was without authority to grant a railroad an easement in a street which would effectively deprive abutting property owners of their rights of access to the public way, citing Schopp v. City of St. Louis, 117 Mo. 131, 22 S.W. 898, 20 L.R.A. 783 (1893).

In City of Memphis v. Hood, 208 Tenn. 319, 345 S.W.2d 887 (1960), our Supreme Court said:

“Of course, the property owners fronting upon a public thoroughfare have a right to free and convenient access thereto. The right of ingress and egress attaches to the land. It is a property right, as complete as ownership of the land itself.” 208 Tenn. 324, 345 S.W.2d 889

However, in said case it was held that the changing of the frontage street from a two-way to a one-way street was the exercise of police power the results of which were not compensable in an eminent domain proceeding.

In State ex rel. Moulton v. Williams, 207 Tenn. 695, 343 S.W.2d 857 (1961), the Supreme Court recognized the authority of the State to limit access to highways built under T.C.A. § 54-2001 et seq. and 23 U.S. C.A. Sec. 111, the so-called “superhighway laws,” which are not involved in the present case. The Court stated, however, that aggrieved abutting landowners had their right of action in inverse condemnation under T.C.A. §§ 23-1423, 23-1424.

In Pack, Commissioner v. Belcher, 62 Tenn.App. 23, 458 S.W.2d 18 (1969), this Court reversed and remanded where the charge to the jury had failed to distinguish between taking of one parcel, where there was no substantial interference with access to the public way, and two other parcels, where access was completely destroyed. In said case, this Court quoted from the unreported opinion of this Court in Pack, Commissioner v. Cooper, December 30, 1966 as follows:

“The denial of access to and from private property abutting on public thoroughfares is a relatively new practice in highway construction in this state. The state and its political subdivision should not be allowed to deprive abutting property owners of this long established right unless a clear intention to extinguish that right is made to appear at the time such private property is taken for use as a public thoroughfare. Of course, such right may thereafter be taken by the condemning authority upon payment of just compensation therefor.” 62 Tenn. App., pp. 31, 32, 458 S.W.2d, p. 21

In Pack v. Belcher, this Court also said:

“It is urged by counsel for the landowners, and seems to have been the position of the Trial Judge, that after the enactment of Chapter 38, Public Acts of 1935, (54-540, 54-541, T.C.A.), rights-of-way acquired for highway purposes impaired the abutting property owners’ rights of ingress and egress and that such impairment, ipso facto, entitle the owner to damages. However, counsel overlooks the fact that such impairment, if any, may or may not be an incident to the taking in a given case, and that such impairment, if any, is not equivalent to the elimination of such rights of ingress and egress, as in the case of taking for a controlled access right-of-way where the purposes set forth in the declaration of taking and construction plans involve a complete obstruction or taking of the landowner’s right of access.
“If it be conceded that the taking of property by the State for highway purposes after the enactment of Chapter 38, Public Acts of 1955 (§§ 54-540-542, T.C. A.), might impair the landowner’s right of access, it should be made clear that his right of access may or may not be changed from that already existing and that the question depends upon the order of taking and the plans of the Highway Department made and filed, or it may depend on some future action of the Highway officials.” 62 Tenn.App., pp. 32 and 33, 458 S.W.2d, p. 22

In Shelby County v. Dodson, 13 Tenn.App. 392 (1930), this Court held that interference with the right of access to property from the public way was compensable even though no part of the property itself was actually taken, citing Morgan County v. Goans, 138 Tenn. 381, 198 S.W. 69 (1917); Pierce v. Gibson County, 107 Tenn. 224, 64 S.W. 33 (1901) and Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 416 (1898) in which latter case the Supreme Court said:

“He has a right of ingress and egress to his property — or, as it is called, an easement of access — and if this is taken away, or if it is impaired or incumbered without his consent, it is a taking of his property for public purposes, for which he is entitled to compensation. Elliott on Roads and Streets, pp. 526, 161; Anderson v. Turbeville, 6 Cold., 158; Railroad v. Bingham, 3 Pick. (87 Tenn.) 526, 11 S.W. 705.
“[The] right of ingress and egress may be valuable or not, and may be of more or less value, according to the location of the property. Thus, in the country districts, when a grade is changed through a man’s farm, the right of ingress and egress may, at any particular point, be of little or no value, and for it the abutting owner would be entitled to little or no damages; but, in case of suburban property, a way of ingress and egress to the front of every lot is a matter of importance, and the destruction or impairment of such way is a proper matter for compensation to the extent of the value of the right thus taken away. It is not a question of tort under the pleadings, but of taking a valuable property right without compensation, and the charge is not erroneous. Gray and Wife v. Knoxville, 1 Pickle (85 Tenn.) 101, 1 S.W. 622; Railroad v. Bingham, 3 Pickle (87 Tenn.) 526, 11 S.W. 705.” 101 Tenn., pp. 225, 226, 47 S.W., p. 417.

The brief of appellant-petitioner contains the following statement:

“The legislature enacted T.C.A. [§] 54-540 under the State’s police power and it has not given the Commissioner authority to restrict the number of entrances into an adjoining landowner’s property but rather to regulate the design and construction of such entrances. Nor, is there any attempt by the Commissioner in promulgating the rules and regulations, which were required to be filed in this case, to restrict the number of entrances into a landowner’s property.
“. . . Even assuming, arguendo, that T.C.A. [§] 54-540 authorized the State to limit the number of entrances in addition to the design, the taking in the present case and the construction of one entrance, being done under the laws of eminent domain, would not preclude a future action if the landowner were subsequently denied the right to construct another entrance at a different location on his adjoining property. His cause of action would not have accrued until the State denied him that right. The State did not deny him that right in the present proceeding.
“Finally, as an officer of this Honorable Court, the writer will state that in his opinion, if the landowner today makes application to the Department of Transportation for a permit to construct another entrance to his property at a different location along the 785 foot frontage, and if he designed the entrance according to the rules and regulations of the Department and otherwise complied therewith, the Commissioner would be acting illegally in refusing to issue a permit if his only reason was that the State had acquired control of access in this proceeding.”

In 39 Am.Jur.2d, Highway, Streets and Bridges, § 178, pp. 552 et seq., is found the following text:

“The right of access to and from a public highway or street is a natural easement and one of the incidents of the ownership or occupancy of land abutting thereon, and exists whether the fee to the way is in the public or in private ownership. There are eases stating that an abutting owner or occupant has a right of access to the full width'of the highway or street, and over its entirety to every part of his land, that is, for the entire distance that his land fronts upon the public way, but the general rule is that an abutting owner or occupant is not entitled to access to his land at every point between it and the highway but only to reasonable and convenient access to his property and the improvements on it. Regardless of whether a large tract is subdivided, the owner or occupant is entitled to a direct outlet on the highway for each reasonably independent economic-use unit thereof. The right of access may serve not only the personal comings and goings of the owner or occupant, but also his reasonable use of the property for business purposes.
“A properly authorized governmental unit has the power to regulate, reasonably, in the public interest, and without illegal discrimination, the extent of an abutter’s private right of access from his property to the highway or street. The cases hold or recognize, however, that such power of regulation does not extend to depriving an abutting owner completely of all access to the street or highway, at least not without compensation therefor. No fee or charge may be imposed or exacted for the exercise of such right of access.” 39 Am.Jur.2d, pp. 552, 553, 554

In 73 A.L.R.2d 640 and 47 A.L.R. 897 are collections of numerous authorities in support of the above text quotations.

In 39 C.J.S. Highways § 141, pp. 1079 et seq. is found the following text:

. . an abutting owner has two distinct kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the highway, and which are not common to the public generally; and this regardless of whether or not the fee of the highway is in him. These rights are property of which he may not be deprived without his consent, except on full compensation and by due process of law.
Regulation and restriction of rights. The rights of abutting owners are subordinate to the right of the public to proper use of the highway. Thus the exercise of the rights of abutting owners is subject to reasonable regulation and restriction for the purpose of providing reasonably safe passage for the public; but regulations or limitations cannot be sustained which unduly delimit or unreasonably in-termeddle with the rights of the abutting owners. The mere disturbance of the rights of the abutting owners by the imposition of new uses on the highway consistent with highway purposes must be tolerated.
“Right of access. As stated in Corpus Juris, an abutting landowner on a public highway has a special right of easement and user in the public road for access purposes, and this is a property right which cannot be damaged or taken from him without due compensation. While entire access may not be cut off, an owner is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway; if he has free and convenient access to his property and to the improvements thereon, and his means of ingress and egress are not substantially interfered with by the public, he has no cause of complaint.
“If necessary, to enable him to reach the traveled part of the road, he has the right to bridge a ditch or construct a grade for that purpose; but in doing so he has no right willfully to obstruct such ditch or highway, his rights as a private landowner being subordinate to the public right of constructing and keeping the highways in repair.
However, this right is subject to the condition that it must not unreasonably obstruct the way, or unreasonably render the use of the highway dangerous.
“The right of access of the abutting owner is subordinate to the rights of the state or the public at large, and is subject to reasonable regulation and restriction.” 39 C.J.S., Highways pp. 1079-1082

In the footnotes of both of the above texts are cited numerous authorities holding particular regulations or restrictions upon driveways either valid because reasonable or invalid because unreasonable.

In Town of Tilton v. Sharpe, 84 N.H. 393, 151 A. 452 (1930), it was held that, in the absence of extraordinary peril to the public, an abutting landowner has the right of access at all parts of his frontage on the public way.

Mueller v. New Jersey Highway Authority, 59 N.J.Super. 583, 158 A.2d 343 (1960), is authority for the proposition, stated supra, that the owner of a large tract is entitled to the right of access for each “reasonably independent economic-use thereof” (including subdivision lots).

In State ex rel. Highway Commission v. Hoffman, Mo.App., 132 S.W.2d 27 (1939), it was held that, even though the state had constructed six entrances to his property, the abutting owner was not precluded from constructing another entrance at his own expense, so long as the rights of the traveling public were not interfered with.

In State ex rel. Gebelin v. Department of Highways, 200 La. 409, 8 So.2d 71 (1942), the court held that the department of highways has authority to limit the number of access connections from private land to the public highway to such extent as necessary for public safety, but that the exercise of such authority is subject to review by the courts, and access may not be totally denied.

In Goodfellow Tire Co. v. Parks & Boulevards, 163 Mich. 249, 128 N.W. 410 (1910), it was held that abutting owners have the absolute right of access to the public way which may not be impaired by the denial of a permit by commissioners even though they have statutory power to make reasonable rules and regulations and issue permits.

In the present case, the defendant by pleadings and the Trial Court by orders sought to elicit from petitioner a definitive statement of the rights of access being taken and the rights remaining after the taking. In an understandable effort to avoid the relinquishment of any valid existing authority, petitioner responded in somewhat equivocal vein, leaving the Trial Judge in considerable doubt as to the position taken by petitioner in this suit and the position of defendant after the conclusion of this suit. For this reason, the Trial Court ruled in effect that, by virtue of the quoted statutes, petitioner had the unlimited power to regulate and limit defendant’s access to the public way and that defendant should be compensated for the loss of his rights.

In reviewing the ruling of the Trial Court, this Court must first pass upon the meaning and constitutionality of §§ 54-540-542, T.C.A., supra.

A legislative act will not be held invalid if there is any reasonable construction of the act which will permit it to stand. Farmer v. Wiseman, 177 Tenn. 578, 151 S.W.2d 1085, 135 A.L.R. 1169 (1941). See many other authorities to this effect annotated in 5 Tenn.Digest, Constitutional Law

A study of §§ 54-540-542, T.C.A., discloses that the purpose and intent of said statutes is to afford regulation of construction within the rights-of-way of state highways and not to authorize regulation or restriction of the rights of access of abutting property owners. Note that each of said code sections includes the word “construct” or “construction” and does not specify the exercise of the right of access as being subject to regulation.

Accordingly, this Court holds that the statutes validly confer upon the Commissioner of Highways the power to exercise reasonable supervision and regulation of construction upon and within the rights-of-way of state highways, including the power to require application for permits for such construction and the grant of such permits on reasonable conditions.

Said statutes are not construed by this Court to empower the Commissioner of Highways to prescribe or supervise modifications or construction upon private property outside the public right-of-way, nor to impose any conditions upon the right to make application for permission to perform any desired construction on the right-of-way, nor to deny rightful access to the right-of-way. To the extent that the present or any future regulations attempt to do so, they exceed the power conferred, and are or would be invalid.

This Court recognizes the many safety factors involved in the movement of vehicles from private driveways onto modern, high-speed highways. However, the statutes under consideration do not appear to grant to the Commissioner the power to control or restrict access except in connection with regulation of construction within the public right-of-way. Any other powers to promote safety must be otherwise derived.

Since in the view of this Court, the quoted statutes do not deprive the defendant of any property right, nor authorize any regulation or action which deprives defendant of any property right, it follows that said statutes are valid and constitutional and no rights to compensation arose by their passage or exist by their existence.

Since, in the view of this Court, any part of present or future regulations which deprives an abutting owner of his rights of access is unauthorized and invalid, it follows that defendant has no rights to compensation because of the existence of said regulations or the promulgation of any future regulations pursuant to said statutes.

It is, of course, recognized that, if he is denied a permit for driveway construction within a state right-of-way, a property owner may consider that his rights to access have been wrongfully denied. In such a case, and at that time, the property owner has access to the courts for review of the denial of permit or for compensation in inverse condemnation.

It is also recognized that the construction of the particular project for which this taking occurred (the widening of State Highway 56) may, by its very nature render access to the highway from defendant’s land physically more inconvenient, difficult, dangerous or expensive. If this can be shown, this would be valid grounds for award of incidental damages in the present case.

Since the assessment of damages has not been made under the principles announced herein, it will be necessary that the cause be remanded for trial anew in conformity herewith.

The foregoing disposes of all questions raised in the briefs or renders a discussion of same unnecessary, except as follows:

The proffered testimony of the witness, Paul McQueen, as to the distinction between a controlled access project and a limited access project was properly excluded as being a matter of law and immaterial to the issues of fact on this case.

The excessiveness of the verdict, as insisted by petitioner, or the inadequacy of the verdict, as insisted by the defendant, are no longer at issue in this appeal because the cause will be remanded for a new trial.

The judgment of the Trial Court is set aside and the cause is remanded for a new trial. The costs of this appeal will be taxed and paid as part of the costs in the Trial Court.

Reversed and Remanded.

SHRIVER, P. J., and DROWOTA, J., concur.


author: SHRIVER, Presiding Judge.

text:
    CITY OF COOKEVILLE, Plaintiff-Appellee, v. Cordell SMITH and wife, Fannie Smith, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    June 28, 1974.
    Certiorari Denied by Supreme Court March 24, 1975.

      John H. Poteet, Cookeville, for plaintiff-appellee.
    Joseph L. Lackey, Jr., Nashville, for defendants-appellants.
   OPINION

SHRIVER, Presiding Judge.

The Case

On November 30,1972, the City of Cooke-ville filed a condemnation petition in the Circuit Court of Putnam County, to acquire a tract of land located in the First Civil District of Putnam County, comprising the home and 30.56 acres of land belonging to defendants, Cordell Smith and wife. The First National Bank of Cookeville was made a party defendant by reason of the fact that they held certain deeds of trust to said land securing an indebtedness of approximately $10,000.00.

After a hearing, the right to condemn said property was upheld by the Court and an order of taking was entered, whereupon, the defendants, Cordell Smith and wife, perfected their appeal to this Court and have assigned error.

The Pleadings

The condemnation petition filed herein alleges that the City of Cookeville is about to begin a public works project through a cooperative effort between the City and the United States Department of Housing and Urban Development through its Model Cities Program, and the United States Department of Agriculture through its Soil Conservation Service. The purpose of the project is to establish a watershed reservoir for flood control and a multi-purpose recreational facility for the use of the general public.

It is alleged that, in order to construct said project, it is necessary that certain land belonging to the defendants, Cordell Smith and wife, be acquired.

It is further alleged that, pursuant to Section 23-1526, T.C.A., petitioner has determined that the fair market value of the property and interests being acquired is $45,860.00, which is deposited with the Clerk of the Circuit Court of Putnam County, whereupon, petitioner alleges that it is entitled to acquire possession of the property sought.

The answer of the defendants, Cordell Smith and wife, after admitting the statistical data asserted in the bill, denies that the City of Cookeville has the power of eminent domain to the extent it seeks to exercise same with respect to defendants’ property; that the determination to acquire all of defendants’ property in fee simple was an arbitrary and capricious determination that should be overturned by the Court; that thq City of Cookeville had not complied with requirements of the Uniform Relocation and Land Acquisition Policies Act of 1970, a Federal Act governing all acquisition wherein Federal funds are used; and it is prayed that the Court stay the issuance of the order sustaining the condemnation petition and appointing a Jury of View and the issuance of a writ of possession pending a hearing.

Assignment of Error

There is a single assignment of error, as follows:

“The Court erred in finding that the Relocation Plan adopted by the City of Cookeville met the requirements of 42 U.S.C. § 4691 [4625], because said Plan makes no reference to relocation for displaced persons who own farms.”

The Facts

We have before us a narrative Bill of Exceptions with certain exhibits comprising correspondence between the City and the defendants, Cordell Smith and wife, and their attorney.

The Bill of Exceptions recites that the case was heard on May 25, 1973 before the Honorable Scott Camp, Chancellor, sitting by interchange for Honorable Thomas H. Haile, Circuit Judge; that the issues raised were that the property was not needed for the construction of the public improvement and that the provisions and requirements of the Uniform Relocation and Real Property Acquisition Policies Act of 1970 had not been complied with.

It was stipulated that the other allegations in the petition were factual and need not be proved except as to the value of the property condemned. It was further stipulated that Resolutions bearing Nos. 187, 229 and 272, and an information brochure relating to the Uniform Relocation Act of 1970 would be introduced as exhibits for the plaintiff.

Plaintiff’s witness, Mr. Treadwell, testified that a resolution of the City Council authorized the construction of the lake and park project in question; that the name of the project is the Cane Creek Improvement Project, and that Federal financial assistance to the extent of $997,500.00 was being made available for the project.

The witness testified that the land owned by the defendants, Mr. and Mrs. Smith, was necessary in order to carry out the project and a map showing the reservoir area was introduced.

The next witness for plaintiff was Mr. Mike Patterson, Director of the Office of Community Development, with the duty to coordinate and carry out the Cane Creek Project. His work included the development of a Relocation Plan for the dispossessed persons in the project. In addition, it was his duty to secure the necessary services to administer the Relocation Plan, in pursuance of which duty he chose the Cookeville Housing Authority to administer same. He stated that this Agency had, as a part of its staff, qualified individuals with expertise in the field of relocation and he testified that adequate funds were provided in the Relocation Plan to pay for services that were rendered by the Cookeville Housing Authority and to pay any and all relocation benefits that would be due residents that were displaced by the Cane Creek Project and that the Relocation Plan had been expressly approved by the United States Department of Housing and Urban Development.

Mr. Patterson testified that he had attempted to discuss relocation with Mr. Smith and that Mr. Smith became hostile and told him that he was not planning on selling the property and that Mr. Patterson should get off his land and that he was not going to relocate.

The witness further testified that he had an updated listing of available housing but that Mr. Smith refused to discuss the matters with him and that, in addition to talking to Mr. Smith, several letters were sent to him to acquaint him with and urge him to use relocation benefits available to him and said letters are made Exhibits 1 through 5 to his testimony. He also made the Relocation Plan an exhibit to his testimony.

On cross-examination, he testified that he had not offered Mr. Smith any specific pieces of property because the defendant refused to discuss the matter with him. He stated that the Cookeville Housing Authority had maintained a listing of farms and houses that were available as possible relocation units as residences and for farm purposes but that Mr. Smith had consistently refused to cooperate and had ordered all persons involved in the project to stay off his land.

The defendant, Cordell Smith, admitted that he received the letters made Exhibits 1 through 5; that he had talked to Mr. Patterson and told him that he did not desire to sell his property to the City of Cookeville; that Mr. Patterson did not offer any property in which to relocate him and his wife, and that Mr. Patterson became irritated and told him that if he did not get off of the property, they would send a bulldozer in and push him out.

On recall, Mr. Patterson denied any statement to the effect that, if Mr. Smith did not get off the property, they would send a bulldozer out and push him off.

Chancellor’s Opinion

After taking the matter under advisement, the Chancellor, on October 4th, 1973, filed the following Memorandum Opinion:

MEMORANDUM OPINION
“I heard this ease at Cookeville oh May 25, 1973 sitting by interchange with Honorable Thomas H. Haile, Circuit Judge. Time was granted for briefs and the final brief was filed on September 25, 1973.
On January 16, 1973, the Circuit Judge ordered that a hearing be had upon petitioner’s right to acquire the involved land, and he stayed such right as the petitioner might have to enter an order sustaining the condemnation petition, to enter an order of taking, a writ of possession, and for a jury of view pending such hearing.
At the May 25th hearing before me, the defendants contended that there was no Relocation Plan for the project which was sufficient and which complied with the Federal law. The only other question was that the petitioner did not offer any proof that affirmative steps were taken to offer the defendants any alternatives as to where the defendants might be relocated.
As to whether or not there was a sufficient Relocation Plan, the evidence in the case speaks for itself. For me to comment upon and review the evidence at this level is not necessary nor is such required. I hold that the petitioner had adopted a sufficient Relocation Plan for all persons to be displaced by this project.
I further hold that the petitioner attempted to make available to the defendants, Cordell Smith and wife, Fannie Smith, adequate relocation assistance. Mr. Smith testified that he told the officials who contacted him that he was not interested in the project and that he refused to discuss it. On cross-examination Mr. Smith testified that he knew that the lake was being planned but that he was not interested in the project and that he ordered the persons engaged in the project to stay off his land.
I hold that the City of Cookeville was ready, willing and able to assist the Smith family in becoming relocated. The City would have rendered such assistance. The offers to help were refused by the Smiths. In that situation and on account of the attitude of the Smiths, there was nothing further that the City could do. I hold that the City of Cookeville was and is in substantial compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. [§] 4601.
I further hold that the tract of land described in the petition and containing 30.56 acres, more or less, is essential for the construction of the public works project described in the petition, and that it is essential that the same be condemned for use in said project.
Let an order of taking, an order sustaining the condemnation petition, and ordering a jury of view be prepared. A writ of possession will issue in favor of the City of Cookeville.
The Circuit Court Clerk at Cookeville, Tennessee, will file this Memorandum Opinion as a part of the technical record in the cause, but same need not be copied on the Minutes nor incorporated in the decree.
Done at Chambers at Sparta, Tennessee, on this the 3rd day of October, 1973.
. /s/Scott Camp SCOTT CAMP. CHANCELLOR, sitting by interchange for HONORABLE THOMAS H. HAILE, CIRCUIT JUDGE”

Thereafter, on November 6th, an Order of Taking was entered, from which an appeal was prayed and perfected.

Our Conclusions

The Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601, sets out certain requirements on any condemning agency where the Program is financed in any degree by Federal funds.

Section 4625 states, in part, as follows:

“Whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person on or after January 2, 1971, the head of such agency shall provide a relocation assistance advisory program for the displaced person which shall offer the services described in subsection (c) of this section . . . ”

Subsection (c) states, in part as follows:

“(c) Each relocation assistance advisory program required by subsection (a) of this section shall include such measures, facilities, or services as may be necessary or appropriate in order to—
(1) determine the need, if any, of displaced person for relocation assistance;
(2) provide current and continuing information on the availability, prices, and rentals of comparable decent, safe, and sanitary sales and rental housing, and of comparable commercial properties and locations for displaced businesses;
(3) * * *
(4) assist a displaced person from his business or farm operation in obtaining and becoming established in a suitable replacement location.”

Counsel for the appellants insist that the foregoing provisions of the Federal Act were not complied with by the petitioner in this case and that, therefore, said petitioner should be denied the right to take the property of the defendants by eminent domain.

See County Hwy. Comm. v. Smith, 61 Tenn.App. 292, 454 S.W.2d 124 (1970), where it was held that failure to comply with a Federal Statute did not affect the right to take.

From the findings of the Trial Judge, as set forth in his Memorandum Opinion, it is seen that he determined from the evidence before him that the petitioner had adopted a sufficient Relocation Plan for all persons to be displaced by this project.

He further found and held that the petitioner attempted to make available to the defendants adequate relocation assistance, which was refused by the defendants, and that the City of Cookeville was ready, willing and able to assist the Smith family in being relocated but that such assistance was refused. The Court found that the City was in substantial compliance with the Uniform Relocation Assistance Act and that the tract of land in question was essential for the construction of the public works project.

With these conclusions of the Chancellor, we are in agreement. It results that the assignment of error is overruled and the judgment of the Trial Court is affirmed.

Affirmed.

TODD, J., and SMITH, Special Justice, concur.