St. Louis, Memphis & Southeastern Railroad Company v. Drummond Realty & Investment Company
| Decision Date | 29 June 1907 |
| Citation | 103 S.W. 977,205 Mo. 167 |
| Parties | ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant, v. DRUMMOND REALTY & INVESTMENT COMPANY |
| Court | Missouri Supreme Court |
Appeal from Gasconade Circuit Court. -- Hon. Wm. A. Davidson, Judge.
Affirmed.
L. F Parker and John W. Booth for appellant.
(1) Respondent having accepted the damages awarded by the commissioners, there was nothing left for trial by jury. (a) In the appropriation of land for a public use the appropriator may pay the damages awarded by the commissioners, take possession of the land, apply the same to public use, and yet file and prosecute exceptions to the award. This, however, is solely for the reason that it is authorized by the statute. R. S. 1899, secs. 1266 and 1268. But this does not necessarily confer upon the land-owner (whether a corporation or a private person), the right to file and prosecute exceptions after accepting the damages awarded by the commissioners. We have failed to find any Missouri case bearing on this question which does not appear to overlook matters vital to the proper interpretation of the statute, or in which the short notes of briefs of counsel contained in the reports, seem to indicate that all such matters were called to the notice of the court. (b) The question presented in this point is purely a question of the proper construction of sections 1266 and 1268, Revised Statutes 1899, and there is nothing in section 21, article 2 nor in section 4, article 12, of the Constitution, which calls for or authorizes any other construction of said sections 1266 and 1268 than the very words of the statute of themselves require. Section 21, article 2, of the Constitution of Missouri of 1875, applies to every possible exercise of the right of eminent domain for a public use, and leaves it to the legislative department of the State to say whether the compensation to the owner shall be ascertained by "a board of commissioners" or by "a jury." Its language in this behalf is: "Such compensation shall be ascertained by a jury or board of commissioners of not less than twelve freeholders, in such manner as shall be prescribed by law." This covers the whole subject -- authorizing the Legislature to provide for the compensation being ascertained by commissioners, or by jury (trial). Section 4 of article 12 provides that "The right of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of the right of eminent domain any incorporated company shall be interested either for or against the exercise of said right." This can not be reduced to the form, "The right of trial by jury shall be held inviolate in all claims for compensation, when in the exercise of the right of eminent domain any incorporated company shall be interested either for or against the exercise of said right," because this would be a practical repeal of the words, "in all trials of claims for compensation." Unless these words, "in all trials of claims for compensation," be refused any force, section 4, article 12 applies only to trials provided for, by law, under the authority of section 21 of article 2. That is, to such (jury) trials as the statute may authorize -- and then only in case an incorporated company may be interested either for or against the exercise of the right of eminent domain. And, inasmuch as at common law the right of trial by jury in such proceedings did not exist, the legislative powers may under these two sections of the Constitution authorize trial, of the amount of compensation for land taken under the power of eminent domain, by a jury of less than twelve men, in all cases, except when an incorporated company is interested for or against the exercise of said right. The full force of said section 4 of article 12 goes only to secure a trial by a jury of twelve men when the law provides or gives a right to such trial. It has nothing in it compulsorily requiring the law-making power in any case to do more than provide for a board of commissioners to ascertain the compensation to be paid. Rothan v. Railroad, 113 Mo. 132; Lewis on Em. Dom., sec. 531. (2) Though lands separated by public highways may constitute a single tract, yet unity of ownership is not of itself enough to require them to be treated as one tract in proceedings for condemnation to a public use. There must be something in the facts from which it may appear that each part is so situated or is of such a character that its convenient use with the other parts gives some value to all the parts as an entirety which would not exist with reference to the several parts taken separately. Railroad v. Aubuchon, 199 Mo. 352.
James L. Minnis for respondent.
(1) The receipt by respondent of the sum awarded by the commissioners as damages did not preclude respondent from the right to have the damages assessed by a jury. Railroad v. Aubuchon, 199 Mo. 352; Rothan v. Railroad, 113 Mo. 132; Railroad v. Fowler, 113 Mo. 473; Railroad v. Clark, 119 Mo. 357; Railroad v. Fowler, 142 Mo. 687; Railroad v. Donovan, 149 Mo. 103; Railroad v. McElroy, 161 Mo. 591; State ex rel. v. Fort, 180 Mo. 103; Railroad v. Roberts, 187 Mo. 319. (2) Respondent's instruction 1 was proper. Railroad v. Aubuchon, 199 Mo. 352; Union Elevator Co. v. Railroad, 135 Mo. 365; 2 Lewis on Eminent Domain (2 Ed.), secs. 465 and 471a; Railroad v. Shoemaker, 160 Mo. 432. (a) Appellant by its instructions 1 and 2 submitted the case to the jury on precisely the same theory as set forth in respondent's instruction 1, and will not therefore be heard to complain. Harrington v. Sedalia, 98 Mo. 583. (b) If respondent's instruction 1 was erroneous in the particular complained of, it was cured by appellant's instruction 8. Norton v. Kramer, 180 Mo. 536; Perrette v. Kansas City, 162 Mo. 238. (3) Instruction 9 offered by appellant was properly refused. Authorities cited under point 1. Instruction 8, given at the instance of appellant, covers the same subject, and is more favorable to appellant than its refused instruction 9. Casey v. Gill, 154 Mo. 184. (4) The damages awarded by the jury are not excessive. Railroad v. Knapp-Stout & Co., 160 Mo. 416; Kansas City v. Bacon, 147 Mo. 274.
This is a proceeding begun in the circuit court of St. Louis county by the plaintiff railroad company to condemn a right of way for its railroad through land of the defendant in that county. The commissioners made their report assessing defendant's damages as $ 9,470, which amount plaintiff paid into court and took possession of the land. In due time defendant filed exceptions to the report and demanded a jury to assess the damages; afterwards defendant demanded of the clerk the money paid into court and it was delivered to him. When the exceptions came on to be heard the court sustained the same and ordered a new assessment of damages to be made by a jury. On application of plaintiff the venue was changed to Gasconade county; the cause was tried in the circuit court of that county with the result of a verdict of the jury assessing defendant's damages at $ 22,500, whereupon the court rendered judgment for defendant for $ 13,030, being the amount of the jury's award less $ 9,470, the amount of the commissioners' report which the defendant had already received; from that judgment the plaintiff has appealed.
I. Plaintiff's first proposition is that defendant having accepted the damages awarded by the commissioners that was the end of the controversy, there was nothing left for trial by the jury.
This court has already decided that point against the plaintiff's contention in several cases, the last one being a case in which this plaintiff was a party. [St. Louis Memphis & S. E. R. R. Co. v. Aubuchon, 199 Mo. 352, 97 S.W. 867.] The law is that the condemning corporation shall pay the amount of the commissioners' award into court as a condition precedent to its taking possession of the land, and upon such payment the corporation may take possession and proceed with the construction of its road, and at the same time the owner of the land so taken or damaged may take the amount of money so deposited, but the payment of the award into court does not preclude the corporation nor does the receiving of it by the land-owner preclude him from further litigating the question of the amount of compensation. Notwithstanding such payment into court by the plaintiff and such receiving of the amount by the defendant, either party may, within the time prescribed, file exceptions to the commissioners' award and litigate the ad quod damnum...
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