West End Narrow Gauge R.R. Co. v. Almeroth

Citation13 Mo.App. 91
PartiesWEST END NARROW GAUGE RAILROAD COMPANY, Respondent, v. MARTIN ALMEROTH, Appellant.
Decision Date12 December 1882
CourtCourt of Appeal of Missouri (US)

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.

KLEIN & FISSE, for the appellant: The court committed error in refusing to allow the defendant to file the answer which he tendered.-- Schlicker v. Gordon, 74 Mo. 534. The defendant was entitled, at his election, to have his damages assessed by a jury.--Const., Art. II., sect. 21; Rev. Stats., sect. 892.

B. D. LEE, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This is a proceeding under the statute, by a railroad corporation, to appropriate to the use of its road certain real estate of defendant.

The petition contains all the necessary allegations, and says that plaintiff has entered upon defendant's land with his consent, but cannot agree with him as to the proper compensation. It prays for the appointment of commissioners to assess damages, and is verified by the affidavit of plaintiff's president.

Defendant offered to file an answer which denied that the premises were necessary for plaintiff's road, that plaintiff and defendant could not agree as to compensation, and that defendant assented to plaintiff's entry, and admitted all other allegations of the petition.

The answer also set up that, in 1873, the St. Louis and Florissant Railroad Company instituted proceedings to appropriate this land, and that defendant in that case appealed from the judgment overruling exceptions to the commissioners' report; that the judgment was reversed and the cause remanded; that, pending this appeal, the St. Louis and Florissant Railroad Company was dissolved, and its franchise transferred to another corporation, which was in its turn dissolved and its property and franchises sold and conveyed to one Lionberger, who conveyed them to plaintiff; that, at this sale, defendant gave notice that he claimed that nothing in his land had passed to the St. Louis and Florissant Railroad or its successors; that the proceeding of the St. Louis and Florissant Railroad to condemn plaintiff's land was dismissed for want of prosecution, in January, 1881; that the last-named road entered on the land in question, and built and used its road over that land until its dissolution, and that its successors, including plaintiff, have continued to do so; and that plaintiff has had possession since March, 1879, to the exclusion of defendant, who instituted proceedings in ejectment, which are still pending. Defendant says that plaintiff does not intend to construct a railroad over the premises in question, and that these proceedings are instituted in bad faith, merely to deprive defendant of his right to the verdict of a jury in the ejectment suit as to his damages.

The trial court refused to allow defendant to file this answer, and proceeded to appoint commissioners against defendant's objection. The commissioners reported the damages at $70, which amount plaintiff at once deposited with the circuit clerk. Defendant's exceptions to the report of commissioners were overruled. When the exceptions came up for hearing, defendant demanded a jury to try the same, and to assess the damages which he sustained by the taking of his land, which the court refused. The court excluded evidence of proceedings to condemn the land formerly instituted by the St. Louis and Florissant Railroad Company.

The only points insisted upon here, are the action of the trial court in refusing to allow the answer to be filed, in refusing a jury to assess damages, and in excluding evidence as to the former proceedings by another company.

1. The right to apply private property to public use in those emergencies which cannot be efficiently met in any other way, exists in the state as a necessary attribute of its sovereign power. It is exercised in every civilized government, and in this country, subject to the limitation as to not taking private property for public use without just compensation, which is embodied in the organic law of every state in the Union, as well as in the constitution of the United States. In exercising this right, a railroad corporation in Missouri must show, of course, an express warrant of the legislature in conformity to the organic law of the state; and, though the law delegating the exercise of this power is to be strictly construed, it must not be so construed as to make the exercise of the power through a railroad corporation a farce ( Wells v. Railroad Co., 47 Me. 345), as it would become if, in a summary proceeding, every landholder could incidentally raise such issues as are presented by the answer which the defendant in the present case was not permitted to file.

The substantial provisions of our statute, so far as they relate to the present controversy, are as follows (Rev. Stats., sects. 892, 900):--

When it is sought to appropriate lands by a corporation for public use, and the corporation and owner cannot agree as to compensation, or if the owner has no capacity to contract, or cannot be found, the corporation may apply to the circuit court of the county where the land lies, or to the judge thereof in vacation, setting forth the general direction of the road, a description of the real estate sought, the names of the owners, etc., and praying the appointment of three commissioners, or of a jury, to assess damages. The statute provides for service of summons upon the defendant or notice by publication, as the case may be, and directs that the court or judge in vacation, “on being satisfied that due notice of the pendency of the petition has been given, shall appoint three disinterested commissioners who shall be freeholders, resident in the county,” etc., to assess the damages. They are to make their return, on oath, after view, to the clerk, which is to be filed and entered on the order-book of the court, and thereupon the company must pay to the clerk the amount so assessed, on making which payment, the company may hold the interest in the property appropriated for the uses named. There is a provision for execution if the damages are not paid, and for abandonment by the company within ten days. The party whose property is affected, is to be notified by the filing of the report, which may be reviewed by the court on written exception by either party filed ten days after notice. The court, on this review, “shall make such order therein as right and justice may require:” and on cause shown, may order a new appraisement. The new appraisement, at the request of either party, shall be made by a jury, under the supervision of the court, as in an ordinary inquiry of damages. But, notwithstanding such exceptions, the company may proceed to construct its...

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2 cases
  • St. Louis, K. C. & C. Ry. Co. v. North
    • United States
    • Missouri Court of Appeals
    • May 29, 1888
    ... ... 896; Railroad v ... Ridge, 57 Mo. 599; Almeroth v. Railroad, 13 ... Mo.App. 91; McReynolds v. Railroad, ... ...
  • Welch v. McAllister
    • United States
    • Missouri Court of Appeals
    • December 21, 1882

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