dissenting.
The issue in this case is whether the diversion of traffic away from an owner’s property caused by a relocation or other change in a highway by the State is a taking or element of a taking for which compensation is due.
Until today, the law in Missouri has been that such a diversion is not a compensable taking, State ex rel. State Highway Commission v. Brockfeld, 388 S.W.2d 862 (Mo. banc 1965); State ex rel. State Highway Commission v. Meier, 388 S.W.2d 855 (Mo. banc 1965). A majority of United States jurisdictions adhere to this rule, Mackie v. Watt, 374 Mich. 300, 132 N.W.2d 113, 118 (1965); 2A Nichols on Eminent Domain § 6.4443[4], 3rd Ed. (1976).
In Meier, the State changed the highway on which respondent’s motel was located from one to which respondent’s driveway directly connected to one of limited access. Part of respondent’s property was taken. After the change respondent’s driveway connected to the outer access road of the highway. Travelers could reach the motel only by the more circuitous use of a distant interchange and the access road. The issue was whether respondent was entitled to compensation for the reduced value of her property due to the change in traffic flow. This Court stated,
“[T]he State and any of its agencies are not liable for any decrease of property values by reason of such diversion of traffic, because such damages are ‘damnum absque injuria’, or damage without legal injury. The trial court, therefore, erred in admitting evidence of depreciation of the value of respondent’s property by reason of the diversion of traffic and the so-called ‘loss of access.’ ” Id. at 857.
The trial court in the instant case properly implemented this law by requiring appellant’s counsel to ask the expert witnesses the “tailed” questions.
Today’s decision has two immediately obvious effects.
One is that of shifting the cost of loss of property values due to diversions of traffic to the State. The added cost will to some extent affect the evaluation of proposed changes in roadways. As a corollary, one might also ask whether the State should be entitled to tax or otherwise collect the increased value accruing to other property owners as a result of beneficial changes in traffic flow. This may or may not be good policy.
The other effect is to grant windfall profits to the current owners of property along the State’s highways. Prior to today’s decision the market value of property along the State’s highways necessarily discounted the risk that the State would divert traffic from the property; the value was thus lower by some amount. Today’s decision removes the risk of traffic diversion by telling property owners that they will be compensated for any such future diversion; the value of their property is thus higher because the risk is removed. The current owners will receive the one-time windfall profit which will result as the market adjusts from the higher risk/lower value level under the law prior to today to the lower risk/higher value level under the law announced by this decision. This may or may not be good policy.
The decision announced today overrules Brockfeld and Meier sub silentio and embarks on a new course without addressing the desirability of this course. Without expressing my views on the policies at issue, I must dissent from a decision which overrules our prior law and sets a new course without addressing the issues or considering the consequences.
Accordingly, I respectfully dissent.
PER CURIAM:
In its motion for rehearing respondent strenuously argues that this Court has overruled the decisions of this Court in State ex rel. State Highway Commission v. Brockfeld, 388 S.W.2d 862 (Mo. Banc 1965) and State ex rel. State Highway Commission v. Meier, 388 S.W.2d 855 (Mo. Banc 1965). That contention is incorrect. The Court does not intend to and does not overrule or disturb the decisions in Brockfeld or Meier.
*921The issue on this appeal is a simple one. Is it proper for the trial court to require the addition of a tail to the standard question to valuation witnesses asking for their expert opinion as to the value of the owner’s remaining property immediately after the taking. We hold that it is not.
This conclusion is consistent with the instructions concerning the use of MAI in condemnation cases. For example, it is well settled that in determining the value of a landowner’s remaining property after a taking by condemnation, general benefits conferred upon all property within usable range of the new highway may not be considered by the jury. State ex rel. State Highway Commission v. Southern Development Co., 509 S.W.2d 18 (Mo. 1974). If the jury is to be told not to consider certain evidence or some issue, it is done on request by giving a withdrawal instruction. See MAI 34.01, 34.02 and 34.03 and accompanying Notes on Use. It is not done by adding a tail to questions asked valuation witnesses which says to them to leave out of consideration any loss of traffic or any general benefits conferred upon all property within usable range of the new highway in assessing the fair market value of the land after the taking. If the Court should hold in this case that it was proper to add the tail about leaving diversion of traffic out of consideration, it would follow that a tail about excluding consideration of such things as general benefits would be proper and that the valuation question might end up with several tails.
We hold that the addition of such tails is improper. If there is reason to advise the jury to eliminate consideration of some evidence or some element and one of the parties requests and is entitled to such direction it should be done by a withdrawal instruction in accordance with the Notes on Use to MAI 9.02, 34.01, 34.02 and 34.03.