Chicago, S. F. & C. Ry. Co. v. McGrew

• Decision Date: 17 March 1891
• Citation: 15 S.W. 931,104 Mo. 282
• Court: Missouri Supreme Court
• Parties: CHICAGO, S. F. & C. RY. CO. v. McGREW.<SMALL><SUP>1</SUP></SMALL>

15 S.W. 931

104 Mo. 282

CHICAGO, S. F. & C. RY. CO. v. McGREW.¹

Supreme Court of Missouri, Division No. 2.

March 17, 1891.

EMINENT DOMAIN — DAMAGES — EVIDENCE — INSTRUCTIONS.

1. Where a railroad company condemns a right of way across defendant's lot in such a way as to separate his engine from his mining shaft and machinery at the pit top, it is proper for the jury, in estimating the depreciation of value of the property, to take into consideration the number and speed of passing trains, the danger of accidents to defendant's employes, and the risk of fires.

2. The connection of the mine with another railroad is a valuable property right, and if necessary changes and readjustment of engine, shaft, and other appliances rendered it necessary to change the railroad connection, or make a new one, the reasonable expense thereof should be allowed.

3. Where it becomes necessary to wholly abandon the shaft its value should be allowed as damage, and not the expense of making a new one.

4. It is not error to instruct that, if the appropriation of the right of way has entirely cut off defendant's connection with the other road, and so prevented the operation of the mine, defendant is entitled to damages from the loss of business from the filing of the commissioners' report to the completion of plaintiff's road.

5. Defendant is entitled to compensation in money, and cannot be required to accept in lieu thereof licenses and privileges to go upon and use the right of way or a release of part of it.

6. As the switch, chute, pit top, and other connections of the mine were not actually taken, though they may have been rendered valueless for the purposes for which they were designed, it does not follow that they have become valueless for all purposes, and it is error to instruct the jury to allow damages to the extent of their full value, instead of their depreciation in value.

7. Since plaintiff has a right to show that the value of the property is not totally destroyed, but that the mine can still be operated, an instruction that plaintiff, after taking defendant's property, cannot insist upon his using the strip taken, either by a superstructure or by means of a subterranean device, or by any other means, which tends to increase the dangers to his employes or the inconveniences or dangers of operating the shaft, which would make it difficult to get careful and prudent men to work in the mine, is misleading.

Appeal from circuit court, Ray county; JAMES M. SANDUSKY, Judge.

This is a suit to condemn a right of way 30 feet wide over lot 939, in block 122, outlot 19, in the town of Camden, Ray county, the property of defendant. Commissioners were appointed by the judge in vacation. They made an assessment of $3,000 damages, and filed their report. This report was afterwards set aside by the court upon exceptions filed by defendant. The case was tried by a jury, and a verdict of $7,000 returned, upon which judgment was rendered against plaintiff. The evidence shows that this lot was about 150 feet in length north and south, and 50 feet in width. Defendant also owned lots 938 and 940, adjoining and on either side of lot 939, being of the same dimensions. At the point where these lots are located the Missouri river runs nearly east and west. The track of the Wabash Railroad extends along the bank of the river near the water's edge. On the north side of and adjacent to the right of way of the Wabash Railroad a public street was located. These lots abutted on this public street. Plaintiff located its railroad adjacent to and parallel with the Wabash road, occupying the street by consent of the town, and providing another street north of its located line. Defendant also owned a large tract of coal land lying north, north-east, and north-west of these lots. About the center of lot 939 defendant had sunk a coal-shaft, by means of which his coal-field was worked. North of the shaft about 45 feet, and on the same lot, defendant had located his engine-house and engine by which the shaft was operated. Through lots 938 and 940 defendant had condemned its right of way to the vacated street on the south. From the river north the land ascended into the hills beyond the railroads. From a switch of the Wabash Railroad a spur or side track extended opposite the shaft. At the entrance of the shaft was a superstructure, called a "pit top." From this two trestles, one above the other, extended towards the river. These trestles were provided with tracks, and, by means of small cars, the débris of the mine were carried over the upper one and dumped into the river, and the coal was carried over the lower one to the side track of the Wabash road, and loaded into its cars. The shaft was about 14 feet in dimensions east and west and 7 feet north and south. The coal and débris were brought up through the shaft by means of two cages, one on the east and one on the west side of the shaft, which were lowered and raised by means of a wire cable extending from the engine over a pulley at the top of the pit top. From the bottom of the shaft small rail tracks diverged to different parts of the mine, by which the coal was carried from the mine to the shaft, and raised by the cages. Plaintiff's railroad was located between this shaft and the engine-house, somewhat nearer the engine than the shaft, thus separating them. In order to operate the mine it was evident that some readjustment of the existing arrangements would have to be made. Several plans were proposed, and evidence offered to prove their practicability, the expense necessary to make the changes and readjustment thereunder, and the time necessarily consumed in so doing. The land actually taken was of insignificant value. The damage claimed by defendant, and not controverted by plaintiff, was on account of interruption of the mining business of defendant, the expense of readjustment, and the loss while necessarily engaged in making changes. The theories upon which plaintiff insisted the changes could be made, and upon which evidence was offered, were as follows: That the work could be operated without relocating either the engine or shaft, by what was denominated either an over pull or under pull. The former plan was to erect a superstructure at the engine, and operate the mine by a cable through this superstructure over the right of way to the pit top; the latter was to tunnel under the track, and make the connection through the tunnel. Another plan was to move the engine up the hill to the north, and pass the cable over the track to the pit top. Plaintiff's evidence tended to prove the practicability of these theories, and defendant's evidence tended to prove their impracticability. Defendant insisted that the only feasible arrangement that could be made was to abandon entirely the new shaft, sink another further up the hill, north of the location of plaintiff's railroad, and move the engine and engine-house also north. This plan, it was contended, would necessitate the abandonment also of the connection with the Wabash Railroad, and delay the business of defendant until a new connection would be made with plaintiff's road when built. Evidence was offered tending to prove the practicability of this readjustment, and the expense thereof, the time it would take to complete the change, and of damages for loss of the use of the mine until working arrangements could be perfected by connection with plaintiff's road. Plaintiff also advanced a theory for readjustment, which, it insisted, was practicable, and would entail much less expense than any of those proposed. This was to remove the engine to the south side of the location of its road, on the south end of either lots 938 or 940, which it had already condemned for its right of way. To prove the practicability of this plan plaintiff offered to prove that it had tendered to defendant a release to the south part of these lots to be used for locating the engine-house and engine. This evidence was excluded. Over plaintiff's objection evidence was offered by defendant and admitted by the court tending to prove that there would be liability of fire escaping from locomotives and igniting the engine-house and machinery and the superstructure to the shaft while in such near proximity to the railroad, and there would be also increased risk to laborers should the engine and shaft be separated by the railroad. Defendant filed a bill of the items of his damage as follows:

                Damages for being cut off from the
                 Wabash Railroad until completion of
                 the plaintiff's road..................   $30,000 00
                Permanent damages for being cut off
                 from the Wabash switches, etc.........     5,000 00
                Value of present shaft.................     5,000 00
                Damages to mining property, arising
                 from uncertainty of sinking new shaft
                and danger of water and sand flowing
                in and damaging mines..................     5,000 00
                Cost of moving and altering engine
                 new engine house, and pit top.........     2,000 00
                Changes at bottom of mine..............     1,000 00
                Damages to mines, arising from having
                 to cross and recross railroad in going
                 to and from same......................     1,000 00
                                                          __________
                                                          $49,000 00
                

The court gave the jury a number of instructions asked by plaintiff, and also refused a number. Several were also given on request of defendant, and the court on its own motion gave instructions covering the whole case.

Gardiner & Lathrop and C. T. Garner, Sr., for appellant. J. D. Shewalter, for respondent.

MACFARLANE, J., (after stating the facts as above.)

It would be impossible to review these instructions in detail within a reasonable limit, and without attempting to do so we will merely consider the legal propositions enunciated by them, and undertake to ascertain the law that should govern in determining the rule of damages as applied to the facts in this case.

1. The...