dissenting.
I dissent from the principal opinion in finding no error in the sustaining of the motion in limine of the Commission excluding evidence of circuity of route.
I agree and concur in the majority opinion’s treatment of the points raised concerning the timing of the motion and the issue raised as to error in reading the instructions after argument had commenced. However, in my view, the case should be reversed and remanded, and these issues do not require decision since they are unlikely to recur.
Fundamental to the issue posed in this case is an understanding of the physical situation. The landowners purchased a tract of land and house. The tract is approximately 150 feet wide on the north and south sides, 200 feet wide on the east side, and 250 feet wide on the west. The grantor *193of the tract also conveyed a 30-foot strip of land for an easement running north approximately 1,000 feet to connect the tract of land to English Street in Marshall, Missouri. At the point where the 30-foot easement abuts English Street, an east-west street, Slater, joins English. The easement conveyed was the existing driveway from the house to English Street. After the landowners bought the property, others abutting the easement and, necessarily, anyone coming to the defendant’s residence, utilized the roadway. The City of Marshall annexed the land, including the land over which the easement runs, but the easement has never been dedicated as a public street. The deeds are dated April 1, 1967, and the date of the taking in condemnation was January 5, 1973, so no adverse use by anyone could have ripened into a prescriptive easement. M. H. Siegfried Real Estate, Inc. v. Renfrow, 592 S.W.2d 488 (Mo.App.1979). At the time of taking, the landowners had a right to enforce use by them of the easement. Such an easement is property. Link v. St. Louis-S. F. Ry. Co., 556 S.W.2d 714 (Mo.App.1977).
The improvement constructed by the Commission was a limited access roadway running generally northeast to southwest and cutting the 30-foot easement about 400 feet south of the defendant’s house.1 An access roadway terminates at the south end of the easement remaining to the north of the new highway. The landowner continues to utilize about 300 feet of the easement to reach the access road and then some 800 feet of access road continues parallel to the new limited access road to a point of access. The landowner’s property to which the easement is appurtenant abuts no part of the improvement. At the point where the easement was broken by the limited access highway, a cut was necessary and the access road apparently slopes to the east from the point where it reaches the easement of the landowners. During construction and apparently to the present, the landowners can reach Highway 41 by proceeding north to Ridge Street which was unimproved at the time of the taking. There is nothing to indicate Ridge Street abuts the landowner’s property in the evidence in this record. There is an inference that the easement was extended to the north by use to connect with Ridge Street.
The trial court, by sustaining the motion of the Commission, eliminated any evidence of circuity. The majority opinion asserts this is a proper ruling based on Christy v. Chicago, B. & Q. R. R., 240 Mo.App. 643, 212 S.W.2d 476 (1948); 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), and the “common injury rule” set forth in Christy.
These eases are inappropriate in fact and in law. Christy was a case where the railroad removed a bridge over the railroad right of way cutting the street which had traversed the bridge. It was thus, as the court points out, an obstruction in a public way and in a part of the public way not abutting the plaintiff’s land. As such, it damaged everyone who utilized the street and not the plaintiff alone. The Christy court specifically excepted the fact situation here presented:
It could not be said that a property owner would have reasonable access to his property, ..., if the property is connected with the obstructed street by a private way and the obstruction rendered the private way of no use. (See Rude v. City of St. Louis, supra, 93 Mo. 408, loc. cit. 415, 6 S.W. 257.)
There may be other instances where property does not abut upon the obstructed part of the street, yet, the obstruction might deprive the property owner of reasonable access to it. But such are not the facts in the case at bar.
212 S.W.2d at 479-80. The instant case is not the vacation nor closing of a public way or street or highway upon which the land abuts, but the obstruction of a private way.
*194The limited access highway cases, Brock-feld, supra, and Meier, supra, are equally not in point. Both of those cases hold that when the state, through the police power, denies access to the throughway and substitutes access to an outer roadway for all abutting owners, no damage accrues. The court in both cases relied heavily on the common injury doctrine as set forth in Christy. There was no difference in kind of damages, only the degree of damages by the various landowners whose right of access was limited.
Here, the landowner has lost something which no one else possessed. He had, prior to the taking, an undeniable claim of right to travel from his property to the intersection of Slater and English Streets, which are not involved in the improvement made by the Commission. It was an important and valuable right as evidenced by the fact that the deeds for the house and lot were simultaneously executed and recorded, and the landowner said it was a condition of the sale that the easement be given at the same time. The creation of the highway improvement has physically interrupted and rendered useless the private way he bargained for and to which he received a deed. Any such interference with the landowner’s easement by a private party would have entitled the landowner to injunctive relief and damages either temporary or as in the instant case loss of value to the dominant tract. M. H. Siegfried Real Estate, Inc., supra, at 494; De Salme v. Union Electric Light and Power Co., 232 Mo.App. 245, 102 S.W.2d 779, 782 (1937); Stilwell v. St. Louis and H. Ry., 39 Mo.App. 221 (1890).
The landowner was entitled to recover for the difference in market value of the dominant tract with the easement before the taking and without the easement after the taking. This question of value before and after necessarily involves the benefit accruing to the landowner from his right in the easement. That benefit included the right of direct access to the city streets and after the taking his indirect access is the measure of his inconvenience. Thus, the circuity of route is a factor affecting the market value of the property after the permanent interruption of the easement.
The majority opinion seems to tender as an alternative ground for affirmance the assertion that the evidence of circuitous route was before the jury.
The facts which demonstrated the circuity were before the jury, but the cross-examination by the Commission of the landowner’s expert effectively negated any inference that the jury could consider such facts. The court likewise instructed the jury that certain exhibits showing the access to the street system of Marshall before the taking were not to be considered to show such routes.
The landowners’ expert had given a figure of $7,000 to $9,000 for damages for “change in access” or “different approach.” Counsel for the Highway Department first established on cross-examination that the witness considered the grade of the access after condemnation and on motion the court struck the witness’s testimony as “being based on construction features.” Despite vigorous cross-examination on the issue, the expert stubbornly clung to his assertion of damage. ' The cross-examination asserted by questions that the easement had been established as a “street” or a “non exclusive easement.” The witness was then asked if his opinion would be different if the present access were streets, and his response was:
I still feel that the change in the street, whatever you want to call this, damaged the value of the property.
The Highway Department then moved for and received an order striking his testimony which was sustained. The effect of this order was to remove from the jury’s consideration the only basis for the expert’s opinion as to damage.
The court’s ruling on the motion in limine and the subsequent rulings striking the testimony of the expert witness effectively excluded from the jury’s consideration any testimony concerning the real basis for the claimed damage of the landowner: the value of the right of access and the detriment of circuity of route. The rulings of the trial court had the same effect as an instruction *195withdrawing the issue and evidence upon the issue from the jury. Evidence proper for consideration by the jury of an injury to the particular land which is not common to others affected by the improvement is properly considered on the issue of valuation and evidence as to the issue may not be withdrawn from the jury. St. Joseph Light and Power Company v. Ohlhausen, 621 S.W.2d 301 (Mo.App.1981).
I would reverse and remand for a new trial.
. It is doubtful that the petition describes the easement. The original judgment in condemnation is not in the file, but the judgment on the jury award fails to describe the easement. The case was tried on the theory the easement was taken.