Webster v. The Kansas City & Southern Railway Company
| Decision Date | 22 May 1893 |
| Citation | 22 S.W. 474,116 Mo. 114 |
| Parties | Webster v. The Kansas City & Southern Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. W. Henry, Judge.
Affirmed.
Johnson & Lucas for appellant.
(1) The court erred in admitting any evidence under the pleading; it contains no allegation that defendant's entry was wrongful or that the occupation became wrongful by matter subsequent to the entry. Robertson v. Railroad, 18 Mo.App. 187; Edmonson v. Kite, 43 Mo. 176; Aull Savings Bank v. Aull, 80 Mo. 201; Cohen v Kyler, 27 Mo. 122; Hubbard v. Railroad, 63 Mo 70. (2) The court erred in admitting evidence. (3) Instruction number 2 for plaintiff was erroneous as it ignores the question whether the entry was wrongful or by consent, nor does it tell the jury how the damages should be assessed. Wyandotte v. Waldo, 70 Mo. 629; Quincy, etc., v. Ridge, 57 Mo. 600; Welch v Railroad, 19 Mo.App. 127. (4) The instruction is also erroneous in laying down the rule that the damages are to be assessed as of the date of the legal appropriation of the land and not of the date of the entry. Chicago, etc., v. Randolph Town Site Co., 103 Mo. 145. (5) Charles D. Lucas in his evidence said he asserted no claim against defendant and had no interest in the land; hence, defendant's fourth instruction should have been given.
Gage, Ladd & Small for respondent.
(1) Defendant's objection to the petition was properly overruled. Chicago, etc., v. Randolph Town Site Co., 103 Mo. 451; Ring v. Bridge Co. 57 Mo. 498; Allen v. Railroad, 84 Mo. 646. (2) The witness Bowers' testimony as to the existing and prospective demand of the property for railway purposes was admissible. Boom Co. v. Patterson, 98 U.S. 403; Currie v. Railroad, 20 A. 56; Railroad v. Ryan, 8 Southern Rep. 174; Railroad v. Jacobs, 110 Ills. 414; Dupuis v. Railroad, 115 Ills. 720; Railroad v. Moore, 124 Ills. 329; Trustees v. Bennett, 5 Thomp. & C., 215; 2 Hun, 669; Young v. Harrison, 17 Ga. 30; Bridge Co. v. Ring, 58 Mo. 491. (3) That the plaintiff was entitled to recover damages to the land taken as well as for the value of the land actually appropriated is too well settled in this court to admit of argument. Doyle v. Railroad, 20 S.W. 970; McReynolds v. Railroad, 19 S.W. 824. (4) The court did not err in instructing that plaintiffs were entitled to recover the value of the property at the time of the entry. Doyle v. Railroad, 20 S.W. 970.
OPINION
-- The suit is by Edward H. Webster and wife, Medora R. Webster, Charles D. Lucas and Richard H. Weller, and is to recover damages from defendant for taking possession of and building its road upon a strip of their land, 66 feet wide, through the south one-half southwest quarter of section 24, township 49, range 33, and for damages to the residue of the the tract by reason thereof. The petition charges, in substance, that plaintiffs, being the owners of the land above described, on the first day of March, 1888, defendant entered and permanently appropriated a strip thereof sixty-six feet wide through the same (describing it) for right of way, constructed its railroad thereon and since has been and still is operating its engines and cars over the same. That there was so taken and appropriated two and seventy-five one hundredths acres of the value of $ 1,000 per acre and that the remaining land is damaged thereby in the sum of $ 3,000; and judgment was demanded for $ 5,750.
The answer was a general denial. The trial resulted in a verdict for plaintiffs for $ 2,464 for the value of the land taken and $ 1,680 for the damage done the remainder, and judgment was rendered for the aggregate amount, and defendant appealed.
I. Upon the trial defendant objected to the introduction of any evidence under the petition, on the ground, that it did not state a cause of action. This objection was overruled and the ruling of the court in doing so is the first error assigned.
The specific objection made to the petition was that there was no allegation that the entry by defendant was wrongful, or that the occupation became wrongful by matter subsequent to the entry. Possession of the strip of land upon which its road was built was taken by defendant, under such circumstances as might imply a waiver on the part of the owners of prepayment of the compensation which is required by the constitution as a condition precedent to the appropriation of the land. The road was built and put in operation under such implied waiver. In such cases it has been repeatedly held by this court that the owner is estopped to reclaim his land and that ejectment will not lie to oust the railroad company of its possession, if compensation can be otherwise ascertained and enforced. Baker v. Railroad, 57 Mo. 265; Provolt v. Railroad , 57 Mo. 256; Bradley v. Railroad, 91 Mo. 493, 4 S.W. 427; McClellan v. Railroad, 103 Mo. 295, 15 S.W. 546.
While the statute (art. 5, ch. 42,) only gives the right to the condemning company to initiate proceedings to condemn and assess damages, the land owner is not left without a remedy, but may resort to his common law action on the case to recover his damages. By waiving prepayment the owner does not waive his right to compensation for the land actually taken or for damages for the injury done the remainder of the tract. Railroad v. Town Site Co., 103 Mo. 451, 15 S.W. 437.
An action for such damages is not predicated upon the wrong or trespass upon the land, but upon a constitutional right to compensation as for the appropriation of a part and damages to the residue. Though the entry may have been tortious and such as would have entitled the owners to maintain an action of trespass or ejectment, they had the unquestionable right to waive the tort or wrongful possession and sue for compensation simply. Doyle v. Railroad, 113 Mo. 280, 20 S.W. 970.
We think the petition states all the facts necessary to constitute a cause of action to recover the compensation and damages claimed. "A judgment of recovery and satisfaction thereof will operate to vest in the defendant company an easement in the land, as much so, and as effectually to all intents and purposes, as if condemnation proceedings had been regularly instituted and conducted." Doyle v. Railroad, supra and authorities cited; McReynolds v. Railroad, 110 Mo. 484, 19 S.W. 824.
II. Upon the trial objection was made to the admission of evidence tending to prove the value of the land taken at that time in view of all prospective uses to which it was adapted, and in permitting witnesses to testify that, from the topography of the land in and around Kansas City, the most available outlet for railroads to the east was over this land, and that it was well suited for manufacturing purposes, and its value was thereby enhanced.
On this question the views of the United States supreme court is thus expressed by Justice Field:
Boom Company v. Patterson, 98 U.S. 403, 25 L.Ed. 206. It was there held that the adaptability of the lands for the purpose of a boom was a proper element for consideration in estimating the value of the lands condemned.
It was held by the supreme court of Georgia that the prospective value of land as a bridge site might be considered in estimating damages. Young v. Harrison, 17 Ga. 30.
In the matter of Furman Street, 17 Wend. 670, it was said that the proper inquiry was, "what is the value of the property for the most advantageous uses to which it may be applied."
In Currie v. Railroad, 52 N.J.L. 381, 20 A. 56, it was recently held...
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