Welsh v. Chicago
| Decision Date | 26 October 1885 |
| Parties | LOVISA D. WELSH and JAMES D. WELSH, Respondents, v. THE CHICAGO, BURLINGTON & KANSAS CITY RAILWAY Co., Appellant. |
| Court | Missouri Court of Appeals |
APPEEAL from Linn Circuit Court, HON. G. D. BURGESS, Judge.
Affirmed.
The facts are stated in the opinion.
L. T. HATFIELD and H. C. MCDOUGAL, for the appellant.
I. The evidence shows a valid condemnation of the right of way in 1870; that defendant's predecessor then entered upon the land and commenced the construction of its railroad; that work was suspended at request of plaintiff, who then “agreed to firnish the grading over said land” at a stipulated price, and that when this agreement was made “a part of the grading had already been done and a culvert put in.” The right to enter and actual entry being shown, the defendant's second declaration, that the burden was on plaintiff to show that the entry was without consent or authority of law; and its third declaration, that the condemnation proceedings were sufficient to divest title, should have been given.
II. The right to except to the report of the commissioners and to claim more damages than they awarded was a personal right, and could only be asserted by the owner of the land at time of appropriation. Such damages do not pass by a deed to purchasers at a judicial sale, as here, and plaintiffs purchased at their peril. Beal v. R. R., 61 Me. 298; McFadden v. Johnson, 72 Pa. St. 335.
III. The company did not abandon its right of way, but simply suspended work for Welsh's accomodation. Again the use by a railroad is a quasi public use of its right of way--much the same as the public holds in a public road. In the latter case it is held that non-user of the right for twenty years is necessary to raise a presumption of abandonment. State v. Culver, 65 Mo. 607.
IV. It was error to declare the measure of damages, as the court did by the first instruction for plaintiff, viz.: “for the amount of the damages so sustained by them as shown by the evidence,” not exceeding one thousand dollars. The case does not come within the rule of Springfield v. Smook (68 Mo. 394), but rather under the rule of Jamison v. Springfield (53 Mo. 224), and cases cited, viz.: “for the fair and reasonable value of the land taken.”
A. W. MULLINS, for the respondents.
I. The court could well have held the condemnation proceedings a nullity. It did not appear that the essential pre-requisites of the statute had been complied with. Ellis v. R. R., 51 Mo. 200; Cunningham v. R. R., 61 Mo. 33; R. R. Co. v. Carter, Sup. Ct. not yet reported.
II. Neff, under whom plaintiffs obtained title to the premises, never gave up possession of the land to defendant's predecessor, nor recognized its right to go upon his land and take or use any part of it. His possession was essentially hostile and adverse to the railroad company and all others claiming under it. School District v. Georges, 50 Mo. 194; R. R. Co. v. McGee, 75 Mo. 522; People v. Clarke, 9 N. Y. 349.
III. The court did not err in declaring the law as to the measure of damages. Plaintiffs were entitled to recover full damages for the taking and appropriation of their land. Combs v. Smith, Receiver, 78 Mo. 32; Mueller v. R. R., 31 Mo. 262; Soulard v. St. Louis, 36 Mo. 546; Cooley on Const. Lim. (5 Ed.) 699.
The petition in this case is very similar to the petition in the case of Combs v. Smith, Receiver (78 Mo. 32). It alleges that Lovisa Welsh is the wife of James Welsh, and that the defendant is a railroad corporation created and existing under the laws of the states of Missouri and Iowa. It then alleges that, on or about the “____ day of September, 1881, the said defendant by its agents, servants and employes, with force and arms and without leave and wrongfully, entered upon the following described land and premises situate in the county of Linn and state of Missouri, to-wit: Fifteen (15) acres off of the west side of that part of the east half of the southwest quarter of section five (5), in township fifty-seven (57) of range twenty (20), outside and south of Gentry's addition to the town of Laclede, of which said land and premises the plaintiffs were in the actual, exclusive and peaceable possession and occupation, and the plaintiff, Lovisa D. Welsh, the owner thereof, and threw down, destroyed and removed the fences, gates and bars inclosing said land and premises, and proceeded to make and construct a railroad track, and in making the embankments and cuts therefor, dug up and destroyed a large number of hedge plants, to-wit, about fifty thousand, and that defendant has completed the road-bed and has laid down the cross ties and iron rails thereon through said land and premises, and that the railroad so constructed runs through said land, entering thereon near the northeast corner thereof and running thence in a southwesterly direction a distance of about one hundred rods, and thus dividing said land into two triangular lots or parcels. And that in constructing said railroad defendant has taken a strip of land through said premises about one hundred feet in width, and in making the cuts and embankments for the same has rendered the same valueless as a part of plaintiff's premises.
Plaintiffs say that they are ready and willing, and here offer to convey to the defendant or such other corporation as may be named by it, or to such person as it may designate, said strip of ground upon the payment of the damages sustained and just and reasonable compensation being made plaintiffs.
Wherefore, plaintiffs say, that by reason of all of said wrongful acts of the defendant, the plaintiffs have sustained damages to the amount of one thousand dollars, and for which they ask judgment with costs.”
The answer admitted that the defendant was the owner of the railroad described in the petition, and that it constructed its line of road through and across the land therein described, but denied all the other allegations in the petition.
The defendant further answering, said: “That in the month of March, 1870, the Missouri Central Railroad Company * * * in which said company, plaintiff, James M. Welsh, was a stockholder, was engaged in the construction of its railroad * * * as provided in its articles of association, and while so engaged it became necessary to cross the lands described in plaintiff's petition, then owned and in the possession of Henry F. Neff, and being unable to agree with said Neff as to the amount of compensation said Neff should receive for the right of way over said lands, the said Missouri Central Railroad” procured the appointment of three commissioners to assess the damages for said right of way, due notice thereof being given to said Neff; that on the 11th of ...
To continue reading
Request your trial