Chicago, M. & St. P.R. Co. v. Randolph Town-Site Co.

Decision Date24 February 1891
PartiesThe Chicago, Milwaukee & St. Paul Railway Company, Appellant, v. The Randolph Town-Site Company
CourtMissouri Supreme Court

Appeal from Clay Circuit Court. -- Hon. J. M. Sandusky, Judge.

Affirmed.

E. J Broaddus for appellant.

(1) The value of the land is to be determined by the date of the appropriation and not of the condemnation. Daniels v Railroad, 41 Iowa 52; Jones v. Railroad, 14 Am. & Eng. R. R. Cases, 217; Cohen v. Railroad, 34 Kan 167; Railroad v. Hays, 14 Am. & Eng. R. R. Cases, 180; Mills on Em. Domain, sec. 175; Pierce on Railroads, 209; Dickenson v. Inhabitants, 13 Gray, 546; 7 Black, 209; 61 Pa. St. 369; 20 Pa. St. 240; Whitman v. Railroad, Allen, 313. (2) The original petition was sufficient, and the only damages to be assessed were for establishment, erection and maintenance of appellant's road. R. S. 1879, secs. 892, 894; Ring v. Bridge Co., 57 Mo. 498; Powers v. Hurmert, 51 Mo. 138; Mueller v. Railroad, 31 Mo. 262; Soulard v. City, 36 Mo. 552; Provolt v. Railroad, 57 Mo. 263; Provolt v. Railroad, 69 Mo. 633; Baker v. Railroad, 57 Mo. 274; Allen v. Railroad, 84 Mo. 651. (3) If original petition was defective, court should have permitted amendment and erred in striking it out. R. S. 1879, secs. 896, 3567, 3585; Carr v. Moss, 87 Mo. 447; Railroad v. Brick Co., 85 Mo. 329; Railroad v. Campbell, 62 Mo. 590; Railroad v. Story, 96 Mo. 622. May be amended when necessary to a fair trial. Railroad v. Allen, 22 P. 605; Railroad v. Strange, 23 N.W. 432; Esclick v. Mason City, 39 N.W. 700. (4) The commissioners were not instructed in their duty in estimating the damages and benefits if any. Lee v. Railroad, 53 Mo. 180. (5) Report of commissioners contains no description of the premises condemned. R. S. 1879, sec. 894; Railroad v. Kellogg, 54 Mo. 337; Railroad v. Story, 96 Mo. 621; Railroad v. Carter, 85 Mo. 457. (6) The court had no jurisdiction because there was no effort at any argument between company and respondent. Railroad v. Campbell, 62 Mo. 585; Ells v. Railroad, 57 Mo. 200; Moses v. Dock Co., 84 Mo. 245; In re Lind v. Clemens, 44 Mo. 540; Cunningham v. Railroad, 61 Mo. 36; Leslie v. City, 47 Mo. 478; Anderson v. City, 47 Mo. 484. (7) When exceptions were filed to report, the court should have set the same aside, and called a jury and tried the cause de novo, and this right was not waived. Railroad v. Story, 96 Mo. 620; Railroad v. Almeroth, 13 Mo.App. 91.

Prosser Ray and A. M. Hough, also, for appellant.

1 The rule assessing damages as of the date of the award is not the correct one It is opposed to the analogies of the law drawn from the rules in other actions affording compensatory relief. (2) The date of the filing of the petition is a better date. South Park v. Dunlevy, 91 Ill. 49; Burt v. Merchants' Co., 115 Mass. 1. (3) But neither the date of the award nor the date of the filing is the proper date. The evidence shows that plaintiff entered upon the land for the purpose of permanently appropriating it for a public easement in the fall of 1880, and that its possession was rightful because made with the owner's knowledge and consent, and with a waiver of prior compensation. (4) Possession of the land being rightful was, in Missouri, an irrevocable license, after plaintiff's expenditure of money and labor thereunder in the construction of the railroad, and the owner could not maintain ejectment against the plaintiff. Provolt v. Railroad, 57 Mo. 256; Baker v. Railroad, 57 Mo. 265; Hosher v. Railroad, 60 Mo. 329; Kanaga v. Railroad, 76 Mo. 207. (5) If the possession was obtained under any specific agreement, the owner could resort to his action for specific performance, and, if there was simply a consent to the appropriation and a waiver of prior compensation, he would have his common-law action for the damages, as of the date of the appropriation. (6) "To be exactly just, the compensation should be estimated as of the time of the taking." Lewis, Em. Domain, sec. 477; Parks v. Boston, 15 Pick. 198. (7) In states which require prepayment as in this, the rule ought to be the same, where the owner waives prepayment and consents to the appropriations for a permanent public easement. Assessment should be of the value at the time of taking. Mills, Em. Domain, sec. 174; Hosher v. Railroad, 60 Mo. 329; Patterson v. Boone Co., 3 Dill. 465; Low v. Railroad, 63 N.H. 557; Burt v. Ins. Co., 115 Mass. 1; McAulay v. Railroad, 33 Vt. 311; Cory v. Railroad, 100 Mo. 282. (8) The order is fatally defective in not specifying any date whatever for admeasuring the damages and in not specifying any of the elements of damages. The order should, as in the common-law writ, ad quod damnum, contain definite directions as to what the commissioners should consider. Lewis, Em. Domain, secs. 401-2; Heise v. Railroad, 62 Pa. St. 67; Epps v. Cralle, 1 Munford, 258; Chesapeake & O. Co. v. Key, 3 Cranch C. C. 599; Lee v. Railroad, 53 Mo. 180; Railroad v. Chrystal, 25 Mo. 546. (9) The court should have permitted appellant to amend its petition. Lewis on Eminent Domain, section 361, says "The practice of allowing amendments should find favor with the courts, since it saves time and expense both to the public and parties interested." Railroad v. Church, 53 Pa. St. 445; Windham v. Litchfield, 22 Conn. 226; Mullholin v. Thomas, 7 Ind. 165; Russell v. Turner, 62 Me. 496. Amendments are allowed increasing the amount of damages, etc. Lewis, Em. Dom., sec. 361. Why not, then, allow allegations which will decrease them? Railroad v. Burmell, 81 Pa. St. 414; Railroad v. Jones, 103 Ind. 386.

Peak, Yeager & Ball for respondent.

(1) The compensation to be paid respondent by the appellant is the valuation of the land at the filing of the petition, or at the time appraisement is made by the commissioners. Upon rendition of the verdict by the commissioners, and payment of the amount by appellant, the title to the land is immediately vested in appellant. R. S. 1879, sec. 894. The petition alleges that the land is owned by respondent, and that appellant has located, surveyed and staked out its extension over and across said lands, and seeks to appropriate said land to appellant's use. It must follow, therefore, that the compensation to be paid respondent is the value of the land at the time these proceedings were had. 2 Wood on Railways, pp. 902, 910, 912; Railroad v. Bishop, 10 N.E. 372; Schrieber v. Railroad, 115 Ill. 340; Dupuys v. Railroad, 115 Ill. 197; Railroad v. Hopkins, 90 Ill. 316; Commissioners v. Dunlevy, 91 Ill. 49; Lyon v. Railroad, 42 Wis. 538; Railroad v. Orr, 8 Kan. 420; Reed v. Railroad, 25 F. 886; Williams v. Railroad, 60 Miss. 689; Gray v. Railroad, 81 Mo. 126. (2) The report of the commissioners and the judgment of the lower court should not be set aside, unless the court is thoroughly satisfied that the commissioners have erred in the principle upon which they have made their appraisement. St. Louis v. Lannigan, 97 Mo. 175. (3) Under the original petition filed herein, plaintiff would not be permitted to introduce evidence showing that plaintiff had taken possession of the land before the institution of these proceedings with the knowledge and consent of the defendant. Such proof would contradict the allegations in the petition, and this the plaintiff is not permitted to do. It can show nothing inconsistent with the facts set out in petition. Edwards v. De Bonney, 51 Mo. 129; Kuhn v. Weil, 73 Mo. 213; Ramsey v. Henderson, 91 Mo. 560; Wilson v. Abbott, 89 Mo. 537; Lennox v. Harrison, 88 Mo. 491. (4) No amended petition could be filed in this case. The statute provides for no amended petition, and the statute must be strictly pursued. Railroad v. Calkins, 90 Mo. 538; Gray v. Railroad, 81 Mo. 135; St. Louis v. Gleason, 93 Mo. 33. (5) The amended petition filed in this case is not an amended petition, but an entirely new cause of action. It sets out a different state of facts from those contained in the original petition, and presents new issues to be tried. The motion to strike out was, therefore, properly sustained. Scoville v. Gleason, 79 Mo. 449. (6) The appellant in this case having elected in the first instance to have the damages assessed by commissioners, and not by jury, and having failed upon the report of the commissioners to ask for a jury trial, must certainly be held to have waived its right to a trial by jury, Railroad v. Story, 96 Mo. 619; Railroad v. Brick Co., 85 Mo. 307. (7) The report of the commissioners contains a sufficient description of the land, and states that a plat of the land is filed with the report. This is sufficient. Railroad v. Story, 96 Mo. 611; Cory v. Railroad, 100 Mo. 282. (8) The petition in this case states that the plaintiff cannot agree with the defendant as to the amount of compensation to be paid. This was sufficient, although there had been no evidence offered of a failure to agree. Cory v. Railroad, 100 Mo. 282.

OPINION

Macfarlane, J.

This is a proceeding for the condemnation of the right of way for plaintiff's railway through the southeast quarter, section 9, and a part of the northwest quarter of the southwest quarter, of section 10, township 50, range 32, in Clay county, which belonged to defendant at the time the proceedings were instituted. The petition was filed on the sixth day of August, 1887.

The petition, after stating the incorporation of plaintiff and defendant, that plaintiff was engaged in the construction of a railroad from Ottumwa, Iowa, to Kansas City, in a southwesterly direction, through Clay county, and desired to procure the right of way therefor; that the road as located passed through the land of the defendant, describing the land, made the following averments:

"That your petitioner desires to construct...

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