Doyle v. the Kansas City & Southern Railway Company
| Decision Date | 22 December 1892 |
| Citation | 20 S.W. 970,113 Mo. 280 |
| Parties | Doyle et al. v. The Kansas City & Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court.--Hon. D. A. DeArmond, Judge.
In August, 1883, the defendant company, without license or other legal authority, entered upon a certain tract of land of about five hundred acres, and constructed its road across the same, appropriating thereby a strip one hundred feet wide and about one and one half miles long through the tract, and extending across the same in a circuitous route and thereby dividing the tract into two irregular and inconvenient shaped parts, greatly impeding ingress and egress from one part to the other and greatly damaging the residue of the tract.
In so constructing its road the company dug ditches, made deep cuts and threw up embankments along and on said strip.
Plaintiffs who were minors, and sue by their natural guardian and curator, Mary Doyle, were in possession of the land at the time of the wrongful entry as tenants in common, seized of an estate in fee simple. Defendant completed its road through the tract in 1884, and was in possession of the tract when action was brought, the ground of which was the appropriation and use by the company of said strip which occupied some twenty acres of land, and the acts aforesaid for which plaintiffs claimed damages in the sum of $ 4,000.
In substance the petition contains the foregoing allegations. The action was brought August 21, 1889. The answer was in effect a general denial, and it also pleaded the statutes of five years and of ten years in bar. To this there was a reply.
The evidence showed that the entry in question was made in 1883 and that by July of that year the track was completed about midway of the tract of land. W. M. Doyle, the father of the plaintiffs, owned the tract, but did not live on the same and died August 24, 1883. The defendant completed its road through the land by February, or by the spring of 1884.
In 1871, the Tebo & Neosho Railroad Company, under certain condemnation proceedings, had graded its road through the land, but did not build its road, and the defendant company in constructing its road used the same route as that used by the former company, repairing the old track, and, where necessary, deepening the cuts and fills. Doyle, the father had the tract in cultivation some twelve years prior to 1883, and the original tract had been plowed over and the embankments plowed down to some extent prior to the entry of the defendant company in 1883.
Upon the evidence adduced, the jury found in favor of the minor plaintiffs in the sum of $ 1,270, and the defendant appealed. Other facts, when necessary, will be disclosed in the opinion.
Affirmed.
Johnson v. Lucas for appellants.
(1) The court erred in refusing to admit the record of the condemnation proceedings. Laws 1857, secs. 7, 8, 9, 10, p. 59; Laws 1859-60, pp. 402-4; Cory v. Railroad, 100 Mo. 282. (2) The instruction by the court of its own motion ought not to have been given; it nowhere tells the jury of what date they are to assess the value of the property. Railroad v. Co., 14 American & English Railroad Cases, 194; Railroad v. Town-Site Co., 104 Mo. 451; see also note to same case, 47 American & English Railroad Cases, 128, and cases cited; Brown v. Railroad, 101 Mo. 490. (3) The instruction given at the request of plaintiff is erroneous; it nowhere tells the jury at what date they are to assess the damages, and on that question leaves the jury entirely in the dark. Railroad v. Town-Site Co., 104 Mo. 451. (4) Defendant's instruction number 2 ought to have been given. The record shows that the only title acquired to a portion of the land was subsequent to the construction of the first grade over the same. Hilton v. St. Louis, 99 Mo. 199. It does not correctly instruct the jury as to the measure of damages. Dougherty v. Brown, 91 Mo. 31. The instruction should have told the jury that defendant was entitled to have deducted from any damages suffered any special benefits received. McReynolds v. Railroad, 110 Mo. 484. (5) The verdict is against the evidence and is excessive and shows on its face that it is the result of partiality and prejudice. (6) The motion in arrest of judgment should have been sustained. The petition did not state facts sufficient to constitute a cause of action. Robertson v. Railroad, 18 Mo. 185. (7) The instruction given by the court of its own motion authorizes a recovery, on the basis of the statute of limitations, while the evidence shows, that as to a portion of the land there was no claim of possession for that period. Hargis v. Railroad 100 Mo. 210.
Calvird & Lewis for respondents.
(1) The error, if any, in refusing to admit the declarations of Wm. M. Doyle to Jos. A. Doyle was waived by defendant's successful objection to plaintiffs' introduction of the whole conversation. (2) It was not necessary that the jury should be told of what date damages were to be assessed. The evidence on damages was all directed to the time the trespass was committed, in 1883. (3) The instruction given by the court of its own motion was not error. The ruling on a similar instruction in Brown v. Railroad, 101 Mo. 490 and 496, does not apply here. For in that case the value of the strip alone was sued for. In this case damages to the whole tract are asked. (4) The instruction given at plaintiffs' request has been approved by this court. Combs v. Smith, 78 Mo. bot. p. 35. (5) It was not error to refuse defendant's second instruction, because: First. The condemnation proceedings were held insufficient. Second. The defendant had never acquired any title from the Clinton & Memphis Branch of the Tebo & Neosho Railroad. (6) Plaintiff's instruction number 2 properly declared the measure of damages. Combs v. Smith, 78 Mo. 32; Railroad v. Baker, 102 Mo. 561. There was no evidence of any special benefits. (7) There was no evidence to support defendant's fourth instruction. The Kansas City, Memphis & Mobile Railroad was never in possession of the land. The only witness who said anything on that subject was Jos. A. Doyle, and he did not know what road built the old grade. (8) This cause of action did not accrue until 1884 when the road was completed across the land, which was after Wm. M. Doyle's death. Combs v. Smith, 78 Mo. 40. The widow's interest was all that the statute of limitations barred, the other plaintiffs being minors.
I. The trial court did not err in rejecting the record of the condemnation proceedings instituted by the Tebo & Neosho Railroad Company. It is true that, under the terms of the charter, five days notice was sufficient. Laws 1859-60, pp. 402, 404; Laws 1857, sec. 9, pp. 60, 61.
But the notice in this case was not served as required by law. The ninth section says: "Notice of such application to such judge shall be given to the owner of such lands five days before such application shall be made, if such owner reside in this state," etc. The service in this case was "either personally or by due course of mail." Unless the statute authorize a substituted or constructive service, the law will intend that personal service is required. Wade on Notice [2 Ed.] secs. 1134, 1137, 1138; Leach v. Cargill, 60 Mo. 316.
Service of process by "due course of mail" was not recognized by the statute in question, and was therefore invalid. But even if Doyle had been properly notified and thus had his day in court, there is nothing to show that the Tebo & Neosho Railroad Company had ever conveyed to any one any supposed title it had acquired to the land in litigation.
II. Complaint is made that error occurred in the refusal of the trial court to permit Doyle, a brother of the deceased, to state the declarations of the latter as to the amount assessed by the commissioners. This was objected to on the ground that the assessment itself was the best evidence on that point. It is; however, now claimed that such evidence was competent to show acquiescence of the ancestor of plaintiffs in such condemnation proceedings. This point was not developed in the lower court; but if it had been, conceding its relevancy, still if any error occurred at the first, it was cured by reason of plaintiffs endeavoring to bring out from the same witness the whole of the conversation referred to, but this was prevented by the defendant's own objection.
III. The next point for determination is in regard to the statute of limitation. The court below evidently thought that the statute of five years was a bar for any injury done by the defendant company to any part of the land by laying a portion of its track prior to the death of Doyle. This is apparent from the ninth instruction asked and given at defendant's instance. This theory was the correct one if this is to be regarded simply as an action of trespass, because if so regarded,...
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