Kansas City Southern Railway Company v. Second Street Improvement Company
| Decision Date | 02 April 1914 |
| Citation | 166 S.W. 296,256 Mo. 386 |
| Parties | KANSAS CITY SOUTHERN RAILWAY COMPANY v. SECOND STREET IMPROVEMENT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.
Reversed and remanded (with directions).
C. A Braley and E. C. Wright for appellant.
(1) At the time of the institution of this suit there was no statutory law permitting a railroad company to condemn land merely for "tracks, sidetracks, switch tracks and like appurtenances of a railroad yard," and if there was any such law it is incumbent upon respondent to show the right has been given it in express terms or by necessary implication. Bridge Co. v. Stone, 173 Mo. 1. (2) If the respondent had the power to condemn any lands for the above purpose, it did not have power to condemn land outside the limits of Kansas City in excess of ten acres. (3) Thirty or more years ago there was no need for the large and extensive yards that railroads now require, but the Legislature has not kept abreast with those requirements and has not given railroads any additional powers, except for branch railroads in the last thirty years. At that time a right of way one hundred feet wide and a tract of land amounting to ten acres outside the city limits and six blocks within the city limits were deemed sufficient. R. S. 1909 sec. 3049; R. S. 1909, secs. 2369, 3067, 3069, 3073, 3215 3216; R. S. 1879, secs. 785, 826, 827, 900; Laws 1870, p. 91, sec. 4; Laws 1901, p. 98. (4) The plaintiff having allowed its lease to expire before it removed its improvements or instituted condemnation proceedings, they became a part of the freehold and the jury should have been allowed to consider the improvements as a part of the freehold in determining the amount of damage to which the defendant was entitled. Walsh v. Sichler, 20 Mo.App. 380; Beckwith v. Boyce, 9 Mo. 560; Wilkerson v. Farnum, 82 Mo. 677; Burcher v. Parker, 40 Mo. 120; Morrison v. Sohn, 90 Mo.App. 76; McAllister v. Beel, 53 Mo.App. 81; Iron Works v. Hitt, 49 Mo.App. 472; Hunt v. Railroad, 76 Mo. 115; Railroad v. Bradbury, 106 Mo.App. 457; Anthony v. Rockefeller, 102 Mo.App. 326; Exchange Co. v. Realty Co., 103 Mo.App. 24. (5) If the other improvements should not have been considered as a part of the freehold most certainly the "Stilwell Rest" built upon this defendant's land by Mr. Stilwell, a stranger to the title, became a part of the freehold and the court should have allowed the jury to so consider it in connection with the market value of the land condemned. Authorities above cited; also, Schaffner v. Schilling, 6 Mo.App. 42; Hunt v. Railroad, 76 Mo. 115. (6) The allegation in respondent's petition that the land belonged to or was owned by the appellant is an allegation that appellant also owned the improvements thereon that were of a permanent nature. Life Ins. Co. v. Tillery, 152 Mo. 421. (7) The railroad company having stated in its petition that the respondent was the owner of the land, is estopped to claim any improvements of a permanent nature like the ones in question. Peoria & Pekin Road v. Laurie, 63 Ill. 264. (8) Under the facts in this case, the jury should have been instructed to have considered the market value of the land, and made their assessment of damages as of October 6, 1902, instead of July 8, 1903. Regan v. Railroad, 111 Mo. 463; McElroy v. Independence Air Line, 172 Mo. 546; McReynolds v. Railroad, 110 Mo. 488; Hosher v. Railroad, 60 Mo. 303; Forsyth v. Boulevard, 127 Mo. 417; Webster v. Railroad, 116 Mo. 114. (9) The court committed reversible error in giving over appellant's objection instruction number 1, asked by respondent. Said instruction told the jury, among other things, in effect that it was the duty of the railroad to furnish the elevator with land and tracks for the storage of its cars of grain coming and going to the elevator in its daily operations. In effect, that for the exclusive use of this elevator the railroad must furnish, at the railroad's expense, land and tracks for all the elevator's business, or if anyone should build an elevator or mill adjoining a railroad track then that railroad must go out and buy lands for storage facilities. Railroad v. Mendonsa, 193 Mo. 518; Railroad v. Pfau, 212 Mo. 398. (10) The court erred in allowing commissioner E. S. Truitt to give evidence as to market value based upon his commissioners' report and allowing J. M. Benton, a deputy county assessor, to give market values based upon tax assessments. Railroad v. Roberts, 187 Mo. 309.
S. W. Moore, Cyrus Crane, O. W. Pratt and J. M. Souby for respondent.
(1) A railroad has power to condemn such land as is necessary for sidetracks and yard purposes and the court committed no error in refusing to sustain appellant's demurrer and motion to dismiss. It is admitted by appellant that no appellate court in this State has held that a railroad was limited to ten acres for switch and yard purposes outside of the city limits. Notwithstanding these concessions, appellant, for the purpose of being enabled to put plaintiff at its mercy, contends that this condemnation cannot be maintained by reason of the infirmity of our statutes. The statutes confer on railroad companies ample powers to condemn lands both for depot purposes and for switch tracks and yard purposes and that the limitation to ten acres applies only to depots and has no application, whatever, to switch tracks and yards. State ex rel. v. Railroad, 135 Mo. 645; Wells on Res Judicata and Stare Decisis, sec. 595; Thornton v. Thornton, 27 Mo. 302; Venable v. Railroad, 112 Mo. 125; Fears v. Riley, 148 Mo. 63. (2) Under the facts in this case defendant was not entitled to claim the railroad tracks and structures, which had been placed on the land by plaintiff, inasmuch as plaintiff's entry on the land was lawful and with the consent and permission of defendant and the structures placed on the land were also with defendant's knowledge and consent. Dietrich v. Murdock, 42 Mo. 279; Hosher v. Railway, 60 Mo. 329. The landowner is not entitled to compensation for improvements even when they were erected without his consent. The courts are unanimous in holding that he is not so entitled where they have been erected with his consent. Jones v. Railroad, 70 Ala. 227; Newgrass v. Railroad, 15 S.W. 188; Railroad v. Taylor, 24 P. 1027; Railroad v. Adam, 10 So. 465; Emerson v. Railroad, 75 Ill. 176; Daniels v. Railroad, 41 Iowa 52; Railroad v. Dunlap, 11 N.W. 271; Greve v. Railroad, 1 N.W. 816; Railroad v. Whitney, 99 N.W. 525; Railroad v. Mosier, 13 P. 300; Justice v. Railroad, 87 Pa. St. 28; Railroad v. McLane, 28 S.W. 454; Railroad v. Stancliff, 7 P. 530; Railroad v. Corbett, 60 P. 127; Lyon v. Railroad, 42 Wis. 538. (3) In instructing the jury to make their assessment of damages as of July 8 1903, the date of the filing of the report of the commissioners, the court correctly stated the law as applicable to this case. In re Forsyth Blvd., 127 Mo. 417; Benedict v. New York, 98 F. 789. (4) The court did not err in giving plaintiff's instruction numbered 1. Railroad v. Fowler, 142 Mo. 670. (5) The court committed no error in its rulings on the admissibility of evidence.
This is a condemnation proceeding, but one with some rather unusual features. A number of parties, headed by Arthur E. Stilwell and E. L. Martin, were interested in the construction of a railroad from Kansas City, Missouri, to the Gulf of Mexico. To this end there seems to have been several companies organized, which were largely officered by the same parties, and which seem to have had a community of interest in the one project, i. e., the railroad from Kansas City to the Gulf. The railroad proper, which did not touch Kansas City, but started from Grandview, near Kansas City, was built by the Kansas City, Pittsburg & Gulf Railroad, a corporation chartered for that purpose. Getting from Grandview into Kansas City was left to other terminal companies, which were finally merged into the Kansas City Suburban Belt Railroad. This latter was the result of a consolidation between the Consolidated Terminal Railway Company and other interests. At the same time and officered practically by the same parties was the Second Street Improvement Company, the defendant in this action. The chief duty of this land company (for such was and is the character of the Second Street Improvement Company) seems to have been to buy up the land along the proposed route of the Railroad companies, and land which said companies would have to have for construction purposes, and lease the same to the railroad companies. Accordingly in 1892 the defendant in this case bought twenty-eight acres of land in the east bottoms at Kansas City, Missouri, but outside of the city limits. On the second day of May it leased these lands to the Consolidated Terminal Railway Company, and this lease passed to the Kansas City Suburban Belt Railroad, upon the consolidation mentioned above. This lease ran for ten years, and gave to the lessee an option to purchase at stipulated prices at the end of the term, or during the term at annual periods. More of the details of this lease may be required in the course of the opinion.
During the term of this lease and pursuant to the rights conferred upon the lessee by it, the Suburban Belt Railroad erected on the land a roundhouse, turntable, machine shops and numbers of miles of railroad tracks. In 1898 the defendant, with the consent of the lessee, Suburban Belt Railroad, sold seven and one-half acres of the leased lands to the Kansas City Pittsburg & Gulf Railroad, a matter which may become material. Adversity overtook the two railroad corporations, and by foreclosure proceedings in the Federal court the property of both was sold...
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