15 S.W. 437 (Mo. 1891), Chicago, M. & St. P.R. Co. v. Randolph Town-Site Co.

Citation15 S.W. 437, 103 Mo. 451
Opinion JudgeMacfarlane, J.
Party NameThe Chicago, Milwaukee & St. Paul Railway Company, Appellant, v. The Randolph Town-Site Company
AttorneyE. J. Broaddus for appellant. Prosser Ray and A. M. Hough, also, for appellant. Peak, Yeager & Ball for respondent.
Case DateFebruary 24, 1891
CourtSupreme Court of Missouri

Page 437

15 S.W. 437 (Mo. 1891)

103 Mo. 451

The Chicago, Milwaukee & St. Paul Railway Company, Appellant,

v.

The Randolph Town-Site Company

Supreme Court of Missouri, Second Division

February 24, 1891

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...

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81 practice notes
  • 107 S.W. 25 (Mo.App. 1908), The Barber Asphalt Paving Co. v. O'Brien
    • United States
    • Missouri Court of Appeals of Missouri
    • 6 Enero 1908
    ...sufficient to constitute a waiver." [Drainage District v. Campbell, 154 Mo. 151, 55 S.W. 276; Railroad v. Randolph Town-Site Co., 103 Mo. 451, 15 S.W. 437; Bank of Monett v. Howell, 79 Mo.App. 318; Briggs v. Railroad, 111 Mo. 168.] Following this rule, it is not necessary to determine ......
  • 166 S.W. 296 (Mo. 1914), Kansas City Southern Railway Company v. Second Street Improvement Company
    • United States
    • Missouri Supreme Court of Missouri
    • 2 Abril 1914
    ...been a taking of the property in a constitutional sense. Such seems to be the well-settled rule in this State. [Railroad v. Townsite Co., 103 Mo. 451; Simpson v. Kansas City, 111 Mo. 237; Railroad v. Railroad, 138 Mo. 591; State ex rel. v. Fort, 180 Mo. 97, 110.] There is nothing in this ca......
  • 200 S.W. 286 (Mo. 1917), Hays v. Hogan
    • United States
    • Missouri Supreme Court of Missouri
    • 22 Diciembre 1917
    ...211 Mo. 18; Smart v. Kansas City, 208 Mo. 162; Lovell v. Davis, 52 Mo.App. 342; Bank v. Armstrong, 92 Mo. 265; Farrell v. Transit Co., 103 Mo. 457. (3) The verdict of the jury is uncertain and ambiguous, and the trial court was justified in arresting the judgment, and granting a new trial b......
  • 233 S.W.2d 6 (Mo. 1950), 41743, Caruthersville School Dist. No. 18 of Pemiscot County v. Latshaw
    • United States
    • Missouri Supreme Court of Missouri
    • 11 Septiembre 1950
    ...of the proceedings. Secs. 1504-1506, 10348, R.S. 1939; Cory v. Ry. Co., 100 Mo. 282; Chicago, etc., Ry. Co. v. Randolph-Town-Site Co., 103 Mo. 451; So. Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 175. (11) In a condemnation proceeding the filing of a sufficient petition and the service of t......
  • Request a trial to view additional results
81 cases
  • 107 S.W. 25 (Mo.App. 1908), The Barber Asphalt Paving Co. v. O'Brien
    • United States
    • Missouri Court of Appeals of Missouri
    • 6 Enero 1908
    ...sufficient to constitute a waiver." [Drainage District v. Campbell, 154 Mo. 151, 55 S.W. 276; Railroad v. Randolph Town-Site Co., 103 Mo. 451, 15 S.W. 437; Bank of Monett v. Howell, 79 Mo.App. 318; Briggs v. Railroad, 111 Mo. 168.] Following this rule, it is not necessary to determine ......
  • 166 S.W. 296 (Mo. 1914), Kansas City Southern Railway Company v. Second Street Improvement Company
    • United States
    • Missouri Supreme Court of Missouri
    • 2 Abril 1914
    ...been a taking of the property in a constitutional sense. Such seems to be the well-settled rule in this State. [Railroad v. Townsite Co., 103 Mo. 451; Simpson v. Kansas City, 111 Mo. 237; Railroad v. Railroad, 138 Mo. 591; State ex rel. v. Fort, 180 Mo. 97, 110.] There is nothing in this ca......
  • 200 S.W. 286 (Mo. 1917), Hays v. Hogan
    • United States
    • Missouri Supreme Court of Missouri
    • 22 Diciembre 1917
    ...211 Mo. 18; Smart v. Kansas City, 208 Mo. 162; Lovell v. Davis, 52 Mo.App. 342; Bank v. Armstrong, 92 Mo. 265; Farrell v. Transit Co., 103 Mo. 457. (3) The verdict of the jury is uncertain and ambiguous, and the trial court was justified in arresting the judgment, and granting a new trial b......
  • 233 S.W.2d 6 (Mo. 1950), 41743, Caruthersville School Dist. No. 18 of Pemiscot County v. Latshaw
    • United States
    • Missouri Supreme Court of Missouri
    • 11 Septiembre 1950
    ...of the proceedings. Secs. 1504-1506, 10348, R.S. 1939; Cory v. Ry. Co., 100 Mo. 282; Chicago, etc., Ry. Co. v. Randolph-Town-Site Co., 103 Mo. 451; So. Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 175. (11) In a condemnation proceeding the filing of a sufficient petition and the service of t......
  • Request a trial to view additional results