20 S.W. 568 (Mo. 1892), Missouri Pacific Railway Company v. Porter

• Citation: 20 S.W. 568, 112 Mo. 361
• Opinion Judge: Thomas, J.
• Party Name: The Missouri Pacific Railway Company, Appellant, v. Porter
• Attorney: H. S. Priest and Wm. S. Shirk for appellant. John Cosgrove, J. H. Johnston and Draffen & Williams for respondent.
• Case Date: November 29, 1892
• Court: Supreme Court of Missouri

Page 568

20 S.W. 568 (Mo. 1892)

112 Mo. 361

The Missouri Pacific Railway Company, Appellant,

v.

Porter

Supreme Court of Missouri, Second Division

November 29, 1892

Appeal from Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed and remanded.

H. S. Priest and Wm. S. Shirk for appellant.

(1) The petition does not seek to condemn the right to take or interfere with a ferry franchise of the defendant. It only seeks to condemn the right to build its railroad over certain lots, in the city of Boonville, fronting on the Missouri river, which the defendant below claimed were used by him as a ferry landing. The ownership of the lots and of the ferry franchise is entirely separate and distinct. The ownership of the banks of a river does not create in such owner a ferry franchise. Nor is it necessary that the owner of a ferry franchise should own a single foot of soil on either side of the stream. Stark v. Miller, 3 Mo. 470; Ragan v. McCoy, 29 Mo. 368; Lewis on Eminent Domain, sec. 484; Prosser v. Wapello, 18 Iowa 327; Moses v. Stanford, 11 Lea (Tenn.) 731; Railroad v. Rodgers, 1 Duval (Ky.) 135; Railroad v. Jones, 56 Am. Rep. 260; 7 American & English Encyclopedia of Law, p. 942, note 3; 8 American & English Encyclopedia of Law, p. 585; Bell v. Clegg, 25 Ark. 26. From these authorities it will be seen, that, if the ferry franchise is damaged, the recovery must be had in another action. (2) Nor is the ferry franchise an appurtenance to the lots. Lewis on Eminent Domain, sec. 135; Rapalje & Lawrence's Law Dictionary, title "Appurtenance;" Prosserv. Wapello, 18 Iowa 327, 335, and other authorities cited to point 1. (3) The court below erred in admitting evidence, all through the trial of the case, as to the damage done to defendant's ferry franchise by the building of plaintiff's railroad, and in refusing to strike out such evidence on plaintiff's motion. See authorities to points 1 and 2. Such evidence is admitted to have been improper and incompetent by the defendant's fourth instruction. (4) The court below also erred in permitting all of the defendant's witnesses to testify as to the value of the lots as a landing or landings for defendant's ferry, and the damages done to them as such, for two reasons. Mills v. Lonergan, 91 Ill. 513; Mills v. St. Clair, etc., 8 How. (U.S.) 569; Lewis on Eminent Domain, sec. 480; Sedalia, etc., v. Abell, 17 Mo.App. 632; Railroad v. Suydam, 17 N. J. L. 25. (5) It was error for the court persistently to admit the evidence referred to in points 3 and 4 during the whole trial and to refuse repeatedly to strike it out. Cobb v. Grffith, 12 Mo.App. 130. In state cases it has long been settled in this state that error in admitting improper evidence is not cured by instructing the jury to disregard it. State v. Mix, 15 Mo. 153; State v. Rothschild, 68 Mo. 52. (6) Defendant's third and fourth instructions were also erroneous. (7) So was the instruction on the icehouse as an element of damages. Forney v. Railroad, 33 Am. & Eng. R. R. Cases, 162. (8) And it was also error to permit defendant to testify as to amount and value of the ice in the icehouse. Railroad v. Pearson, 35 Cal. 247; In re Railroad, 35 Hun, 306; S. C., p. 633.

John Cosgrove, J. H. Johnston and Draffen & Williams for respondent.

(1) The constitutional guaranty of "just compensation" for property taken or damaged for public use means that the owner shall receive a full equivalent for the entire loss sustained by the appropriation of his property. The intention is that the compensation paid shall equal the damages inflicted, that the owner "shall be made whole." There is no artificial rule upon this subject. The inquiry in this class of cases is as to the extent of the owner's loss, the situation of the property, the manner in which it is or may be used, its adaptability to any particular use, and how its value for such purpose will be affected by reason of the location of the railroad over the same, are proper matters for consideration in estimating the damages. 3 Sutherland on Damages, p. 433; Lewis on Eminent Domain, secs. 462, 480; Railroad v. McGrew, 104 Mo. 282; Bridge Co. v. Ring, 58 Mo. 491; Boom Co. v. Patterson, 98 U.S. 403; King v. Railroad, 32 Minn. 224. (2) It was competent for defendant to show that the location of the lots in question made them specifically valuable as a ferry landing, and that there was, at the time of and for forty years prior to the institution of these proceedings had been, an established ferry across the Missouri river at said point. It was proper to take into consideration any and every injurious effect that the location of the railroad would have upon the utility of said lots as a ferry landing, everything that would render them less desirable for that purpose and which would, therefore, depreciate their value. Railroad v. McGehee, 41 Ark. 202; Boom Co. v. Patterson, 98 U.S. 403; Railroad v. Railroad, 56 Am. Rep. 173; Autenrieth v. Railroad, 36 Mo.App. 254; Railroad v. Waldron, 88 Am. Dec. note, p. 113, et seq. (3) The defendant did not introduce any...