Springfield Southwestern Railway Company v. Schweitzer

• Decision Date: 05 August 1913
• Citation: 158 S.W. 1058,173 Mo.App. 650
• Parties: SPRINGFIELD SOUTHWESTERN RAILWAY COMPANY, Appellant, v. JACOB C. SCHWEITZER AND NEW PHOENIX FOUNDRY & MACHINE COMPANY, Respondents
• Court: Missouri Court of Appeals

158 S.W. 1058

173 Mo.App. 650

SPRINGFIELD SOUTHWESTERN RAILWAY COMPANY, Appellant, v. JACOB C. SCHWEITZER AND NEW PHOENIX FOUNDRY & MACHINE COMPANY, Respondents

Court of Appeals of Missouri, Springfield

August 5, 1913

Appeal from Polk County Circuit Court.--Hon. Argus Cox, Judge.

Reversed and remanded.

Robert T. Railey and Barbour & McDavid for appellant.

(1) In condemnation proceedings when the entire tract of land is taken, as was done in this case, the full measure of damage is the reasonable market value of the land taken. Railroad v. McGrew, 104 Mo. 290; Railroad v Porter, 112 Mo. 368; Railroad v. Real Estate Co., 204 Mo. 575; Street Railway v. Walsh, 197 Mo. 392. (2) The owner of the fee and those owning an interest in the land condemned have the same interest in the compensation awarded as they had in the land and the court will so distribute it. Ross v. Gates, 183 Mo. 347; Buchanan v. Kansas City, 208 Mo. 682; Union Depot Co. v. Frederick, 117 Mo. 146-7; Railroad v Baker, 102 Mo. 560; Railroad v. Weaver, 86 Mo 473; Chicago v. Messler, 38 F. 302. (3) Injury to business, loss of profits, inconvenience to the owner, damage to personal property, or the expense of removing it, are not to be estimated as direct elements of damages and evidence relating thereto should have been excluded. Railroad v. Knapp-Stout & Co., 160 Mo. 412; Railroad v. Porter, 112 Mo. 373; Railroad v. Anderson, 113 S.W. 1031; Ranlet v. Railroad, 62 N.H. 561; Lewis on Eminent Domain (2 Ed.), sec. 488.

John Schmook and T. J. Murray for respondent.

(1) Reference should be had to the use for which the property is suitable, having regard to the existing business or wants of the community or such as may reasonably be expected in the immediate future. Its adaptability for the purpose for which it is being used is a proper element of value for consideration. Railroad v. Cartan, etc., Co., 197 Mo. 565. (2) If the lessee was conducting a business on the property which would be broken up or interrupted by taking the property for the public use he was entitled to compensation for that injury. St. Louis v. Abeln, 170 Mo. 318; Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 282; St. Louis v. Brown, 155 Mo. 545; Blincoe v. Railroad, 16 Okla. 286, 83 P. 903; Railroad v. Getz, 105 Pa. St. 547. (3) When a leasehold interest is taken the measure of damages to the tenant is the actual value of the leasehold interest, including loss or depreciation of tenants' fixtures, reasonable cost of removal and refitting in new quarters and injury to business during the period of interruption. The landlord's damages are the value of the rent and the reversion. Sedgwick on Damages (8 Ed.), sec. 1157, p. 113; Edmands v. Boston, 108 Mass. 535; Railroad v. Schneider, 127 Ill 144; Edmands v. Boston, 108 Mass. 135; Re William & Anthony Sts., 19 Wend. 678; Dyer v. Wightman, 66 Pa. 425.

OPINION

FARRINGTON, J.

The appeal in this case was first taken to the Supreme Court from which the cause has been transferred to this court (151 S.W. 128) for the reason that the title to real estate is not involved.

The plaintiff, on January 22, 1906, filed in the circuit court of Greene county a petition to condemn certain property owned by Jacob C. Schweitzer, on which was located the plant of the New Phoenix Foundry & Machine Company which held a lease on a part of the Schweitzer property for a term of one year terminating on December 30, 1905, but which contained a provision for renewal for a term of three years at a fixed rental of fifty dollars per month; and the foundry company had exercised its option to renew. This company, the party defendant principally interested in this appeal, operated on the leased premises a foundry in which was stored machinery necessary for the operation of such a business as well as pig iron, merchandise, tools, loose materials and personal property which usually goes with such a business. Appraisers were appointed by the circuit court to view the property, and they placed the damages to be paid by the plaintiff for the taking of this particular tract of land at $ 4200, but did not apportion this amount between Schweitzer, the landowner, and the defendant foundry company. In due time, exceptions were filed by both Schweitzer and the foundry company. The venue of the case was changed to Polk county. Before the case came on for trial in the circuit court of Polk county on exceptions to the report of the appraisers, the plaintiff and Schweitzer compromised their differences, the evidence showing that Schweitzer was paid $ 6800 for the entire tract of land taken, a part of which was the land on which was located the foundry, and that he executed a deed to the entire fee to the plaintiff and dismissed his exceptions to the report of the appraisers. The cause was proceeded with on the exceptions filed by the foundry company, and the court sitting as a jury found that the damage to the land on which the foundry was located, exclusive of and independent of any special value of the leasehold held by the foundry company, was $ 6000, and found that in order to continue the business of the foundry company and to preserve its machinery and materials from loss and destruction it was necessary to remove them to another place. This was accomplished by the foundry company, and the necessary expense incurred in the removal was $ 634.31, besides a loss of fire brick, which the evidence shows were broken and damaged by reason of the removal, amounting to eighty-six dollars. It was found that the expense of removing the pig iron, tools, loose materials, engine, machinery, etc., together with the damage to the fire brick estimated at eighty-six dollars, amounted to $ 720.31 in excess of the rental value of the property, and for this amount judgment was entered against the plaintiff in favor of the foundry company.

There is evidence to the effect that the plaintiff and Schweitzer were co-operating in this transaction; and, reading the evidence, coupled with the fact that Schweitzer was fully settled with, one is led to believe that they were standing together in the controversy.

The foundry company undertook to show the damages it sustained by reason of the removal in that it lost customers and that the building to which it moved was not as well located for such business as was the old plant. The court found against it on these claims and placed the finding and judgment for the $ 720.31 solely on the necessary removal expenses which were incurred by the foundry company in taking its property to the new location, and the damage to the fire brick occasioned by breakage.

Plaintiff objected and excepted to the admission of testimony showing the cost and expense of removal, asked in its refused declarations of law that this item be not taken into consideration, and raised the question in its motion for a new trial and again in this court in its assignment of errors.

The sole question before this court is whether a tenant with a lease three years yet to run has a right, when the property to which his lease attaches is taken on condemnation proceedings, to be reimbursed for the expense incurred in removing his personal property from the place taken, and whether he is entitled to recover for the damages sustained by said personal property in moving by breakage and deterioration.

The majority of the courts hold that compensation cannot be recovered for the cost of removing personal property from the condemned premises. [See, Mo. P. Ry. Co. v. Porter, 112 Mo. 361, 20 S.W. 568; St. Louis, etc., R. Co. v. Knapp-Stout, etc., Co., 160 Mo. 396, 61 S.W. 300; Edmands v. Boston, 108 Mass. 535; Cobb v. Boston, 109 Mass. 438; Williams v. Com., 168 Mass. 364, 47 N.E. 115; Ranlet v. Concord R. Corp., 62 N.H. 561; New York Cent. R. Co. v. Pierce, 35 Hun (N.Y.) 306; New York, West Shore and Bluff Ry. Co. v. Cosack, 35 Hun (N.Y.) 633; Becker v. Philadelphia, etc., Terminal R. Co., 177 Pa. 252, 35 A. 617; 8 Am. & Eng. Anno. Cases 696, note; 4 L.R.A. (N.S.) 890, note.] The courts of Kansas, Illinois, Oklahoma, and, at one time, Pennsylvania, held contra. [See, Blincoe v. Choctaw, O. & W. R. Co., 16 Okla. 286, 83 P. 903, 4 L.R.A. (N.S.) 890; Atchison, etc., R. Co. v. Schneider, 127 Ill. 144, 20 N.E. 41; Getz v. Philadelphia & R. R. Co., 105 Pa. 547; s. c., 113 Pa. 214, 6 A. 356.]

The reasons for not allowing this damage are (1) that the tenant would have to move anyhow, and this is one of the incumbrances attaching to the act of placing personal property on leased premises; (2) it is not within the language of the Constitution--that the expense of moving it is neither a taking nor a damaging of the property; and (3) that a verdict would necessarily be based upon conjecture, as one tenant might locate his personal property within a few feet or a few yards or a few blocks of the place from which it is removed, another might move it a mile distant (as in this case), and another might go still farther. The cost of removal would apparently differ greatly.

As our Supreme Court has ruled in no uncertain terms that the expense of removing personal property from condemned premises cannot be recovered by the owner of such personal property, it is our plain duty to follow that ruling. Nor is any very careful analysis required to see that no real conflict exists in the opinions of the Supreme Court on this question.

In the case of St. Louis, etc., R. Co. v. Knapp-Stout Co., supra where a railroad company condemned a right of way through a lumber yard owned by the defendant, the question came squarely before the Supreme Court whether the lumber which was piled upon the strip of ground taken and which must necessarily be lost unless removed could be moved by the defendant and a...