Chicago, S. F. & C. Ry. Co. v. McGrew

• Decision Date: 23 January 1893
• Citation: 113 Mo. 390,21 S.W. 201
• Parties: CHICAGO, S. F. & C. RY. CO. v. McGREW.
• Court: Missouri Supreme Court

21 S.W. 201

113 Mo. 390

CHICAGO, S. F. & C. RY. CO. v. McGREW.

Supreme Court of Missouri, Division No. 1.

January 23, 1893.

EMINENT DOMAIN — TRIAL BY JURY.

1. Const. art. 12, § 4, provides that "the right of trial by jury shall be held inviolate in all claims for compensation, when, in the exercise of eminent domain, any incorporated company shall be interested either for or against the exercise of said right." Rev. St. 1889, § 2738, provides that either party may have the assessment made by commissioners reviewed, "and the reviewal of such appraisement * * * shall, at the request of either party, be made by a jury." Held, that a corporation exercising the right of eminent domain is entitled to a reassessment by a jury.

2. If, in such case, a request for a jury was made in due time, the form or manner in which it is made is immaterial.

Appeal from circuit court, Ray county; James M. Sandusky, Judge.

Proceeding by the Chicago, Santa Fe & California Railway Company against James C. McGrew to condemn land. From an order denying a motion for reassessment of damages by a jury, plaintiff appeals. Reversed.

Gardiner Lathrop, C. T. Garner & Son, and S. W. Moore, for appellant. J. D. Shewalter, for respondent.

MACFARLANE, J.

This is a proceeding to condemn a strip of land through a number of lots in the town of Camden, Ray county, belonging to defendant, for right of way of the railroad of plaintiff. Application was made, commissioners appointed, and report of commissioners filed, as provided by article 6, c. 42, Rev. St. 1889. Upon the coming in of the report of the commissioners, plaintiff filed a motion in which was charged that the assessment of the damages was excessive, that the commissioners did not take into consideration the advantages the railroad would be to the remaining land, and that the damages were estimated upon erroneous principles, and concluded with the following prayer: "Wherefore plaintiff asks, requests, and prays that the said assessment of damages, so made by said commissioners aforesaid, be reversed before and under the supervision of this court by a jury of the county, as in ordinary cases of inquiry and trial by jury, according to law in such cases, and judgment in the premises as right practice and the law require in the premises." Upon the hearing of this motion a jury was denied, and evidence was introduced by both parties as to the value of the lots, and improvements thereon, the uses to which they were applied by defendant, the effect the appropriation of this land and building the railroad thereon would have upon the expense and convenience of mining coal, and the damage to the lots and improvements. The motion was overruled, and plaintiff filed motions in arrest and for a rehearing, in each of which, and as one ground therefor, it was charged that the court erred in not submitting the assessment of the damages to a jury, as in ordinary cases of inquiry and trial by jury. These motions were also overruled, and plaintiff appealed.

1. The chief ground of contention in the circuit court seems to have arisen over the question as to whether the provision of section 4¹ of article 12 of the constitution and of section 2738² of the Statutes entitled "Corporations," when exercising the delegated right of eminent domain, to demand, as a matter of constitutional right, that the damages should be assessed by a jury. Since the trial of the case in the circuit court the disputed question has been decided in several cases by this court. Chicago, M. & St. P. Ry. Co. v. Randolph Town Site, 103 Mo. 451, 15 S. W. Rep. 437; Railroad Co. v. Miller, 106 Mo. 458, 17 S. W. Rep. 499; Railroad Co. v. Shambaugh, 106 Mo. 557, 17 S. W. Rep. 581; Railway Co. v. Fowler, (Mo. Sup.) 20 S. W. Rep. 1069, (not yet officially reported.) In these cases we have uniformly held that the right of trial by jury was guarantied not only to the landowner, as had previously been decided in Railroad Co. v. Story, 96 Mo. 611, 10 S. W. Rep. 203, but that, after commissioners had assessed the damages, and made report, "if...