20 S.W. 1069 (Mo. 1893), St. Louis, Oak Hill & Carondelet Railway Company v. Fowler

Citation20 S.W. 1069, 113 Mo. 458
Opinion JudgeBlack, P. J.
Party NameThe St. Louis, Oak Hill & Carondelet Railway Company, Appellant, v. Fowler et al.; Rothan et al., Appellants
AttorneyH. S. Priest and H. G. Herbel for appellant. David Goldsmith for defendants as appellants.
Case DateJanuary 23, 1893
CourtSupreme Court of Missouri

Page 1069

20 S.W. 1069 (Mo. 1893)

113 Mo. 458

The St. Louis, Oak Hill & Carondelet Railway Company, Appellant,

v.

Fowler et al.; Rothan et al., Appellants

Supreme Court of Missouri, First Division

January 23, 1893

Appeal from St. Louis City Circuit Court.--Hon. L. B. Valliant, Judge.

Reversed and remanded.

H. S. Priest and H. G. Herbel for appellant.

(1) The court erred in overruling plaintiff's application for a change of venue. Dowling v. Allen, 88 Mo. 293; Mix v. Kepner, 81 Mo. 93; Corpenny v. Sedalia, 57 Mo. 88; Constitution of Missouri, art. 12, sec. 4; Revised Statutes, 1879, sec. 896; Railroad v. Randolph, 103 Mo. 469; Railroad v. Story, 96 Mo. 621; Revised Statutes, 1879, sec. 3729; Revised Statutes, 1879, sec. 3461; Railroad v. Calkins, 90 Mo. 541. (2) The court erred in admitting incompetent and illegal evidence offered by defendant. Railroad v. Baker, 102 Mo. 559; Railroad v. Calkins, 90 Mo. 546; Railroad v. Waldo, 70 Mo. 630; Railroad v. Ridge, 57 Mo. 601; Balfour v. Railroad, 62 Miss. 508; Page v. Railroad, 70 Ill. 327. (3) The court erred in excluding competent and legal evidence offered by plaintiff. (4) The court erred in refusing legal instructions asked by plaintiff. See cases cited under point 2, supra. (5) The court erred in giving illegal instructions at the instance of defendants. Railroad v. Vivian, 33 Mo.App. 587; Shattuck v. Railroad, 23 N.H. 269; Hilton v. City, 99 Mo. 200; Wilcox v. Railroad, 35 Minn. 442, and cases cited under point 2, supra. (6) The court erred in giving instruction of its own motion. (7) The verdict is grossly excessive, and evidently the result of bias, passion and prejudice on the part of the jury. Bene v. Jeantet, 129 U.S. 683; Peterson v. Case, 18 American & English Railroad Cases, 581.

David Goldsmith for defendants as appellants.

(1) The plaintiff's application for a change of venue was properly refused, because the statute providing for changes of venue in civil actions is not applicable to proceedings of eminent domain. Railroad v. Railroad, 65 Cal. 394; Revised Statutes, 1889, sec. 3461; Koppikus v. Commissioners, 16 Cal. 254; Webster v. Commissioners, 63 Me. 27; Valentine v. Boston, 20 Pick. 201; Gates v. Bliss, 43 Vt. 299; People v. Hamilton, 39 N.Y. 109. (2) Said application was properly refused, owing to the lack of sufficient diligence on the part of the plaintiff. State to use v. Matlock, 82 Mo. 455; Wolf v. Ward, 104 Mo. 127. (3) Said application was properly refused, because no notice of it was given to Mr. Meyer Goldsmith, as trustee for Mrs. Rosa Goldsmith. Revised Statutes, 1889, sec. 2262; Johnson v. Moffett, 19 Mo.App. 159. (4) Said application was properly refused, because the verification of it was insufficient. In Matter of Whitson's Estate, 89 Mo. 58; Squires v. Chillicothe, 89 Mo. 232; Norvel v. Porter, 62 Mo. 310; Huthsing v. Maus, 36 Mo. 101; Corpenny v. Sedalia, 57 Mo. 91; Cook on Stockholders, sec. 17, p. 928; Newlands v. Ass'n, 54 Law Jour. Q. B. Div. p. 431; Barnett v. Co., 18 Q. B. Div. p. 817. (5) There was no error in the rulings on the admission and exclusion of evidence, of which the plaintiff assigns error. Adams v. Railroad, 57 Vt. 249; Co. v. Ferrell, 17 Pick. 58; Upton v. Railroad, 8 Cush. 600; Roberts v. Commissioners, 21 Kan. 247; Railroad v. Meyer, 39 Miss. 374; Railroad v. Ball, 5 Ohio St. 568; Washburn v. Railroad, 59 Wis. 364; Lewis on Eminent Domain, p. 595, note 6. (6) The refusal of the instructions, numbered two and three respectively, and asked by the plaintiff, was proper. State ex rel. v. St. Louis, 62 Mo. 246; see also the authorities under point 5. (7) The complaint made of the fourth instruction given for the defendants, namely, that it was misleading, "because it prohibits the assessment of peculiar benefits against defendants' lands, if the same benefits are shared by other lands through which the road does not run," is not well founded. This instruction could not have been misleading under the evidence, and it was, moreover, correct in the abstract. Railroad v. Waldron, 11 Minn. 515; Adams v. Railroad, 57 Vt. p. 250; Combs v. Smith, 78 Mo. 40. (8) The charge of interest from the date of the commissioners' report was proper, if the theory of the trial court and the plaintiff, that the damages ought to be assessed as of that date, is correct. Railroad v. Brown, 13 Neb. 317; Warren v. Railroad, 21 Minn. 424; Railroad v. Burson, 61 Pa. St. 369; Reed v. Railroad, 105 Mass. 303; Lewis on Eminent Domain, sec. 499; Daniels v. Railroad, 41 Iowa 52; Newgrass v. Railroad, 15 S.W. 188; Philips v. Pease, 39 Cal. 582. (9) The description of the property sought to be taken by the plaintiff was insufficient, and, therefore, commissioners ought not to have been appointed under the present petition. Lewis on Eminent Domain, sec. 350, 352, p. 456; Mills on Eminent Domain, sec. 115, p. 271; sec. 117, p. 274; Brown v. Railroad, 86 Ala. 209; Railroad v. Commissioners, 65 Me. 293; Smith v. Welden, 73 Ind. 454; Railroad v. Smith, 109 Ind. 488; Jones v. Marion Co., 4 Ore. 46; Ellis v. Railroad, 51 Mo. 200; Railroad v. Campbell, 62 Mo. 585; Cory v. Railroad, 100 Mo. 290; Cunningham v. Railroad, 61 Mo. 33; St. Louis v. Gleason, 89 Mo. 67; Anderson v. Pemberton, 89 Mo. 61. (10) The damages of the defendants should have been assessed upon the basis of the value of the property in question at the date of trial, and not at the date of the filing of the report of the commissioners. Railroad v. Town-Site Co., 103 Mo. 451; Arnold v. Bridge Co., 1 Duv. (Ky.) 372; Railroad v. Small, 87 Ga. 355; County of Blue Earth v. Railroad, 28 Minn. 503; Morin v. Railroad, 30 Minn. 100; Railroad v. Ruby, 15 S.W. 1040.

OPINION

[113 Mo. 462] Black, P. J.

Plaintiff commenced this suit on the eighth of October, 1886, in the circuit court of St. Louis to condemn a right of way over twenty or more pacels of land owned by different persons. Isaac [113 Mo. 463] Rothan, Rosa Goldsmith and Meyer Goldsmith, her trustee, owned one parcel containing some twenty-four acres. Having been duly served with summons, they appeared and objected to the appointment of commissioners on

Page 1070

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 twenty-second of 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...

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