22 S.W. 474 (Mo. 1893), Webster v. The Kansas City & Southern Railway Company

Citation:22 S.W. 474, 116 Mo. 114
Opinion Judge:Macfarlane, J.
Party Name:Webster v. The Kansas City & Southern Railway Company, Appellant
Attorney:Johnson & Lucas for appellant. Gage, Ladd & Small for respondent.
Judge Panel:Macfarlane, J. Barclay, J., absent.
Case Date:May 22, 1893
Court:Supreme Court of Missouri
 
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Page 474

22 S.W. 474 (Mo. 1893)

116 Mo. 114

Webster

v.

The Kansas City & Southern Railway Company, Appellant

Supreme Court of Missouri, First Division

May 22, 1893

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.

Macfarlane, J. Barclay, J., absent.

OPINION

[116 Mo. 116] Macfarlane, J.

-- 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...

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