St. Louis, O. H. & C. Ry. Co. v. Fowler

Decision Date28 November 1892
CourtMissouri Supreme Court
PartiesST. LOUIS, O. H. & C. RY. CO. v. FOWLER et al.

1. A petition for condemnation described the land to be taken as "a strip of ground or right of way, 66 feet wide, across a certain tract of land," describing such tract by metes and bounds, and referring for a more accurate description of the desired right of way to a plat filed with the petition, in which plat the right of way was so indicated that it could be located by a surveyor. Held, that the petition sufficiently complied with the statutory requirement that it should set forth "a description of the real estate or other property which the company seeks to acquire."

2. A witness testifying as to the injury inflicted on a tract of land by running a railroad through it may state that the land next to the railroad would be injured, and may point out on a map in evidence to what distance from the railroad such injury would extend.

3. It is improper to ask such witness on cross-examination whether the remainder of the tract was worth as much per acre after the right of way was taken out as it was before, since such question allows the witness to set off against the damages any benefit said land might, in common with other lands in the vicinity, receive from the construction of the railroad.

4. Where a railroad company pays into court the amount awarded by commissioners for land taken as soon as such award is made, a subsequent reassessment of such damages by a jury should be made on the basis of the value of the land at the time of the commissioners' report, since in such case the appropriation is made at the time of the first assessment.

5. Such reassessment should not include interest on the amount so paid into court, since the landowner has the right to withdraw and use such money pending the proceedings for reassessment of damages.

6. Rev. St. 1879, § 896, provides for assessment of damages in condemnation cases to be made "by a jury under the supervision of the court, as in ordinary cases of inquiry of damages." Held, that in condemnation suits the parties have a right to a change of venue for any of the reasons specified in the Code as causes for which "a change of venue may be awarded in any civil suit."

7. Where one defendant is made a party as trustee for another, a notice of application for change of venue, addressed to him, without adding the word "trustee," is sufficient.

8. Where a notice of application for change of venue on the ground of local prejudice states that knowledge of such prejudice first came to the party on the day the notice is given, the application should not be rejected for want of diligence, though made more than two years after the suit was begun.

9. Where an application for change of venue on the ground of local prejudice is made by a corporation, the affidavit in support of it may be made by the secretary of the corporation.

Cross appeals from St. Louis circuit court; L. B. VALLIANT, Judge.

Action by the St. Louis, Oak Hill & Carondelet Railway Company against Lucy A. Fowler and others to condemn a right of way. Both parties appeal. Reversed.

H. S. Priest and H. G. Herbel, for plaintiff. David Goldsmith, for defendants Rothan and others.

BLACK, J.

Plaintiff commenced this suit on the 8th October, 1886, in the circuit court of St. Louis, to condemn a right of way over 20 or more parcels of land, owned by different persons. Isaac Rothan, Rosa Goldsmith, and Meyer Goldsmith, her trustee, owned one parcel, containing some 24 acres. Having been duly served with summons, they appeared, and objected to the appointment of commissioners on these grounds: First, because the damages should be assessed by a jury; second, because the petition did not describe the property to be taken. These objections were overruled, and they excepted. Commissioners were appointed, who made report on the 22d November, 1886. On that day plaintiff paid into court $10,025.80 "to cover the awards of said commissioners." The report of the commissioners is not preserved in this record, so that we do not know the amount awarded to these defendants; for it is evident that the above amount is the aggregate of the damages allowed to the various property owners. On the 2d and 11th days of December, 1886, these defendants filed exceptions to the commissioners' report. The exceptions are not in the record before us. On the 27th of the same month the court sustained the exceptions, set aside the report, and ordered a new appraisement. The record does not show what, if anything, was done between this date and June, 1888, but at the last-named date the death of Rosa Goldsmith was suggested, and her heirs and devisees were made parties. This was done, on their motion, and after the service of scire facias upon plaintiff, issued at their request. On the 5th November, 1888, at the October term for that year, the plaintiff applied for a change of venue, stating in the petition therefor that the inhabitants of the city of St. Louis were prejudiced against it, and that knowledge of the existence of such prejudice first came to it on the 2d November, 1888, and since the adjournment of the last regular term of court. This petition was verified by the affidavit of George C. Smith, secretary of the plaintiff corporation, who says the matters and things set forth in the petition are true, and that the affiant and the plaintiff have just cause to believe the plaintiff cannot have a fair trial in the city of St. Louis, on account of the cause alleged in the petition. Notice of an intention to make this application was served on the attorney for all of these defendants on the 2d November, — three days before the application was filed in court. In this notice defendant Meyer Goldsmith is not described as trustee for Rosa Goldsmith, but simply as Meyer Goldsmith. The other defendants are all properly named. A jury trial was then had, resulting in a verdict for defendants for $11,541.20, and from the judgment thereon both sides appealed.

1. The first question to be considered is the defendants' objection that the petition fails to describe the land sought to be appropriated. The petition states, among other things, that the plaintiff "has duly surveyed and located, and is proceeding to construct," a line of road beginning, etc.; that it is necessary to acquire the right of way through various parcels, and, among others, "a strip of ground or right of way, 66 feet wide, across a certain tract of land," describing the defendants' 24 acres by its boundaries. "The area of right of way required being 1 42-100 acres, more or less. * * * And for a more accurate and perfect description of said several parcels or tracts of land above described, and the right of way over them sought to be acquired, reference is hereby made to the map or plat of said lands above referred to, and herewith filed, and made a part hereof, and upon said plat or map said above-described rights of way are colored blue." The entire tract is bounded in part by streets. The plat shows these streets and the other boundaries; that the railroad enters at the north side, and passes on, in a southeast direction, by a slight curve for a part of the way, and out at the east side, thus cutting off three or four acres in the northeast corner. The line of the road is shown on the plat by the strip colored blue, and there is a center line through this strip, with figures indicating 33 feet on each side of the center line. The following figures and letters also appear upon the face of the map, namely: "55×31.6. 2° 36' C.," — thus designating the degree of the curve in the right of way, as we understand. The plat professes, on its face, to be drawn to a scale of 200 feet to the inch. The streets on, and the lines of, the adjoining property, are all disclosed by lines. There are no figures or field notes on the plat, to indicate where the road enters or leaves the land. To do this resort must be had to the scale, which, as we have said, is stated on the plat itself. According to the statute, the petition should set forth "a description of the real estate or other property which the company seeks to acquire." There is no doubt but the petition may, as does this one, refer to a plat filed therewith for an accurate description of the property sought to be taken; and, if well described on the plat, that is sufficient. The plat in this case appears to have been prepared with care, and, since it specifies the scale on which it is made, it cannot be difficult for a surveyor to locate the strip with certainty; and, that being so, the description is sufficient. Descriptions in many respects like this have been held sufficient. Railroad Co. v. Kellogg, 54 Mo. 334; Railroad Co. v. Story, 96 Mo. 611, 10 S. W. Rep. 203; Cory v. Railroad Co., 100 Mo. 284, 13 S. W. Rep. 346; Chicago, M. & St. P. Ry. Co. v. Randolph Town-Site Co., 103 Mo. 452, 15 S. W. Rep. 437; Mills, Em. Dom. § 115.

2. The plaintiff, on its appeal, assigns as error the action of the trial court in refusing a change of venue. The defendants seek to support this ruling on several grounds, and the first is that the statute providing for change of venue in civil actions does not apply to eminent domain proceedings. Of the cases cited by the defendants, that of California S. R. Co. v. Southern Pac. R. Co., 65 Cal. 394, 4 Pac. Rep. 344, is most in point. There the proceedings to condemn were commenced in the county where the property was situated, and it was contended that another county was the residence of the defendant corporation, and therefore the place where the trial should be had. The court held that the law did not define the place of residence of a corporation, and that the proceedings were properly brought, and were to be tried in the county where the land was situated. That case, it...

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