Judge rules in favor of city in Bloomfield Road condemnation

Circuit Judge Benjamin Lewis upheld the commissioners’ awards in a case in which the city of Cape Girardeau is taking land for the widening of Bloomfield Road and construction of a walking trail.

The owners of the properties in the condemnation case argued in a hearing last week they should receive greater compensation because of the “heritage value” of the land.

But the Cape Girardeau County judge on Friday issued a nine-page ruling in which he rejected the defendants’ motion.

Patrick Evans, who owns the old Elmwood estate, and his sister Mary Evans Auer, who lives nearby, argued the three commissioners who valued the land failed to take into account the history of the property that once was home to Cape Girardeau pioneer Alexander Giboney and later home to famed civic leader Louis Houck, who married a Giboney.

The judge’s ruling won’t bring an end to the case.

The defendants’ lawyer, James F. Waltz of Cape Girardeau, on Monday filed “exceptions” to the commissioners’ valuation of the land, setting the stage for a future jury trial.

“It’s like a brand-new lawsuit,” Waltz said.

The court previously ruled the city can proceed with the project. Only final compensation remains to be decided.

The judge’s latest ruling supported the city’s payment of $55,000 in compensation to Evans for nearly two acres and $8,760 in compensation to Auer for a smaller tract of land.

In his ruling, Lewis wrote the property had been in the defendants’ family, dating to 1798.

He said that satisfied the condition the land be owned by the same family for more than 50 years. But Lewis found the defendants did not meet the second requirement for “heritage value,” ruling the taking of the land would not prevent the owners from using the land in “substantially the same manner.”

“There was testimony that, long ago, travelers would stop at the spring by the road to draw water for themselves and their horses and that they would pause to watch the sheep grazing at the entrance of Elmwood. While the spring remains, the horses, riders and wagons have been gone for a hundred years now, and the sheep are long gone as well,” Lewis wrote.

Lewis added, “There is no spring house or grotto over the spring, only a low spot in the pasture that feeds into a swale roughly parallel to the road.”

As for the city’s plans to remove some trees on the property as part of the road work, the judge found the compensation included the shade value of the trees.

Lewis also ruled the historic house on Evans’ property “will not be disturbed or diminished by the road improvement or the walking trail.” Lewis said the house sits “completely out of sight of the road.”

The judge also indicated Evans’ commitment to the historic nature of the property could change in the future. Lewis wrote Evans, who has part ownership of the adjacent Dalhousie Golf Club, has a legal agreement that allows him to build a new single-family residence on the property and reserves the right to build condominiums on the property after Sept. 22, 2020.

In his ruling, Lewis wrote Evans is seeking 150 percent of fair-market value for the land that will be taken for the road project.

But Lewis ruled state law does not allow additional compensation unless the planned improvements “substantially” affect the existing use of the property.

As for Auer’s property, Lewis found the project “will preserve the integrity” of a pond on the land, and a fence will be built between the walking path and the pond.

He said the taking of her land also did not qualify as a “homestead taking” that would have required compensation of 125 percent of fair-market value.

Lewis found the city is taking property within 300 feet of Auer’s home, but “the nearest edge of the taking is less than 20 feet closer to the house than the existing road surface.”

The judge ruled the road and trail project would not prevent Auer from using her property “in substantially the same manner” as it is used.

mbliss@semissourian.com

(573) 388-3641

Pertinent address:

44 N. Lorimier St., Cape Girardeau, Mo.