15 S.W. 931 (Mo. 1891), The Chicago, Sante Fe & California Railway Company v. McGrew

Citation15 S.W. 931, 104 Mo. 282
Opinion JudgeMacfarlane, J.
Party NameThe Chicago, Sante Fe & California Railway Company, Appellant, v. McGrew
AttorneyGardiner Lathrop and C. T. Garner, Jr., for appellant. J. D. Shewalter for respondent.
Case DateMarch 17, 1891
CourtSupreme Court of Missouri

Page 931

15 S.W. 931 (Mo. 1891)

104 Mo. 282

The Chicago, Sante Fe & California Railway Company, Appellant,

v.

McGrew

Supreme Court of Missouri, Second Division

March 17, 1891

April, 1891

Appeal from Ray Circuit Court. -- Hon. James M. Sandusky, Judge.

Reversed and remanded.

Gardiner Lathrop and C. T. Garner, Jr., for appellant.

(1) The court erred in excluding competent evidence offered by the plaintiff. Dorlan v. Railroad, 46 Pa. St. 520. (2) Besides, the cost of building new chutes and a new switch were not only not proper elements of damage, but they were not even claimed in defendant's "answer and cross petition" by which he is bound. While the pleading may in the first instance have been unnecessary, yet having made it he ought to be limited and bound by it. 1 Rorer on Railroads, pp. 383-4; Railroad v. Linn, 14 Am. & Eng. R. R. Cases (Neb.) 198; Fleming v. Railroad, 34 Ia. 353; Railroad v. Lansing, 16 Barb. 68; Railroad v. Whalen, 11 Neb. 585; Railroad v. Hummel, 27 Pa. St. 99; Patten v. Railroad, 33 Pa. St. 426; Dorlan v. Railroad, 46 Pa. St. 520; Gilmore v. Railroad, 104 Pa. St. 275; In re Railroad, 53 Barb. 457; Railroad v. Palmer, 24 P. 342. (3) The court erred in refusing plaintiff's eighth instruction as asked and in modifying same. Bridge Co. v. Schaubacher, 57 Mo. 582; Springfield v. Schmook, 68 Mo. 394; Railroad v. Waldo, 70 Mo. 629. (4) The fifteenth instruction, as modified, is subject to substantially the same objections as the eighth. Again the jury would be left to speculate and conjecture. The modification of plaintiff's sixteenth instruction so as to permit the liability to injury from accident to "be considered in so far as it may bear on the question of the practicability of an over pull" ought not to have been made by the court. (5) The instructions asked by the plaintiff which the court refused should have been given, and the instructions given by the court at the instance of defendant abounded in errors.

J. D. Shewalter for respondent.

(1) The offer or statement of a party "to give" or sell a right of way is not competent on a trial of an assessment of damages. The statute makes it incumbent on the plaintiff to attempt a settlement with the land-owner, before applying for the appointment of commissioners; the proof that an effort was so made, and the parties failed to agree, being a jurisdictional fact, the propositions pro and con., looking to that end are privileged. 1 Redfield on Railways [4 Ed.] sec. 69, p. 246; Refining Co. v. Elevator Co., 82 Mo. 121; Gray v. Railroad, 81 Mo. 126; Mills on Em. Domain [2 Ed.] sec. 112, and authorities, n. 3 and 4; Railroad v. Miller, 125 Mass. 1; 1 Rorer, 30 and 302; 1 Redf. on Railways, p. 247, and note. (2) The mere difficulty of ascertaining damages -- if such difficulties exist -- is no reason for not allowing damages at all. 1 Sedgwick on Dam., top p. 200, note a. (3) And when part of the property is taken, which is essential to use of another part, the assessment should include the loss to business, or value of the property for the time necessary to make the change, so as put the property in working order, in reference to the changed conditions. Mills on Em. Dom., secs. 192, 177 and 179; Bridge Co. v. Schaubacher, 57 Mo. 582; Pattison v. Boston, 19 Pick. 166; Pattison v. Boston, 23 Pick. 425; 3 Sutherland on Dam., pp. 438, 440; Railroad v. Copps, 72 Ill. 188; Railroads v. Hill, 56 Pa. St. 460; 2 Wood on Railroads, pp. 918 and 919 and note 5, 921, 905, 907, note 3,896; 1 Wood, pp. 709, 672, n. 707; 1 Rorer, on Railroad, 383, 376, 385, 388. (4) The court committed no error as to the instructions.

OPINION

[104 Mo. 286] Macfarlane, J.

This is a suit to condemn a right of way thirty feet wide over lot 939 in block 122, out-lot 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 the 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 one hundred and fifty feet in length north and south, and fifty 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, northeast and northwest of these lots. About the center of lot 939, defendant had sunk a coal shaft, by means of which his coalfield was worked. North of the shaft about forty-five 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 through 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 sidetrack extended opposite [104 Mo. 287] 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 debris of the mine was carried over the upper one and dumped into the river, and the coal was carried over the lower one to the sidetrack of the Wabash road and loaded into its cars. The shaft was about fourteen feet in dimensions east and west, and seven feet north and south. The coal and debris 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

Page 932

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 the plaintiff insisted the changes could be made, and upon which evidence was offered, were as follows:

That the works 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 [104 Mo. 288] 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...

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