Missouri Pac. Ry. Co. v. Porter

Decision Date29 November 1892
PartiesMISSOURI PAC. RY. CO. v. PORTER.
CourtMissouri Supreme Court

4. A railroad company acquired by purchase a right of way in a tract of land, and 22 feet of the land so acquired were covered by a building of the grantor. Under condemnation proceedings a few years later, they acquired more of the same tract, and a part of the land acquired under the condemnation proceedings was covered by 16 feet of the same building. Held, that it was improper, in estimating damages to the building under the condemnation, to instruct the jury to make an allowance for that part of the building taken by the old right of way, and for damage to the whole building caused by the taking of such part thereof.

5. Evidence that there were several hundred tons of ice in the building when the land was condemned is improper, in that it was personal property, not subject to condemnation, and could have been removed by the owner.

Appeal from circuit court, Moniteau county; E. I. EDWARDS, Judge.

In a proceeding to condemn land by the Missouri Pacific Railway Company against John Porter, the defendant was awarded $12,225, and plaintiff appeals. Reversed.

The facts appear in the following statement by THOMAS, J.:

This is a condemnation proceeding. The defendant was awarded $10,500 damages to his property, and $1,725 interest thereon, making $12,225 in all, and plaintiff appeals.

The record shows that plaintiff commenced two actions in the circuit court of Cooper county — one in May, and the other in November, 1887 — to condemn a right of way 100 feet wide for its road, through lots owned by defendant in the city of Boonville. The commissioners in the first case reported June 11, 1887, allowing defendant $5,000 damages, and in the second case, November 26, 1887, allowing him $700. Plaintiff deposited the sums thus allowed with the clerk of the circuit court, as required by statute. Both parties excepted in due time to the reports, and the court set them aside. On application of plaintiff, the venue was changed to the circuit court of Moniteau county, where, by consent of parties, the two cases were consolidated and tried as one. It was also agreed that the only question that should be submitted for adjudication was the amount of damages defendant was entitled to by reason of the location, construction, and operation of plaintiff's road through said lots. The evidence contained in the bill of exceptions shows that defendant owned 11 lots in Boonville, bounded on the north by the Missouri river, and running south to Water street, which is parallel with the river. The average distance across the lots from the river to Water street is about 150 feet, and each lot has a river frontage of 90 feet, making the river frontage of all the lots 300 or 400 yards. Four of the lots extend from First street, on the west, to Second street, on the east; and seven lie east of the latter street, which runs north and south, its northern terminus being the river. Ten or 12 years ago defendant conveyed to the Boonville, St. Louis & Southern Railway Company a right of way 40 feet wide, next to the river, through all his lots east of Second street, for what is known as the "Tipton Branch Road." The latter road runs north along Second street, till it reaches defendant's property, where it curves, and runs east, along the river bank, to Fifth street. The right of way condemned in this proceeding includes in it the right of way previously conveyed for the Tipton branch. Plaintiff proposed to construct its main line along the river bank, extending west of Second street, and from that line to construct a switch to connect with the Tipton branch on Second street, south of Water street. Defendant had operated a ferryboat across the river at Boonville since 1852, using the lots in question for a landing. After the construction of the Tipton branch, the shore of the river east of Second street was not used — indeed, could not be used — for a ferry landing. Some time prior to the institution of the present proceeding, defendant, by permission of the city, improved the foot of Second street for a landing, which he used up to the time of the trial, (which took place in March, 1890,) and which he was then using. Of defendant's lots west of Second street there was left outside of the right of way 10 feet on the south side and from 30 to 50 feet on the north side, according to the meanders of the river bank. The strip left between the right of way and the river can be reached by the way of First street from the west, and Second street from the east, and an alley equidistant between these streets extending to Water street. East of Second street, the right of way extends to the river. There was quite an elevation of the lots in their natural state from the river to Water street, and by the construction of the roadbed this elevation is considerably increased. The river bank west of Second street, by the action of the water, changed often, so that the point of landing of the ferryboat had to be shifted to suit the stage of the river and the grade of the bank. The questions presented for our decision grow out of the rulings of the court on the admission and rejection of evidence, and the proper measure of damages. It appears very conclusively that the lots in question were made land chiefly, were low, and subject to overflow, and were worth but little, except as a ferry landing. Defendant's witnesses estimated the damages at from $10,000 to $25,000, while the evidence on the part of plaintiff tended to show that the damages were less than $4,000. The other facts necessary to an understanding of the points decided will appear in the opinion.

H. S. Priest and W. S. Shirk, for appellant. John Cosgrove, J. H. Johnston, and Draffen & Williams, for respondent.

THOMAS, J.

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