24 S.W. 478 (Mo. 1893), The Kansas City Suburban Belt Railroad Company v. The Kansas City

Citation24 S.W. 478, 118 Mo. 599
Opinion JudgeBurgess, J.
Party NameThe Kansas City Suburban Belt Railroad Company v. The Kansas City, St. Louis & Chicago Railroad Company et al., Appellants
AttorneyGates & Wallace for appellants. Trimble & Braley for respondent.
Case DateDecember 16, 1893
CourtSupreme Court of Missouri

Page 478

24 S.W. 478 (Mo. 1893)

118 Mo. 599

The Kansas City Suburban Belt Railroad Company

v.

The Kansas City, St. Louis & Chicago Railroad Company et al., Appellants

Supreme Court of Missouri, Second Division

December 16, 1893

Appeal from Clay Circuit Court. -- Hon. J. M. Sandusky, Judge.

Affirmed.

Gates & Wallace for appellants.

(1) The court erred in appointing the commissioners, against the objection of the defendants that the crossing at Gillis street in the manner proposed in the petition would materially interfere with the use of the railroad and property of the defendants, contrary to sec. 2741 of the Revised Statutes, and in denying the defendants a hearing on this question. Railroad v. Railroad, 94 Mo. 536; In re Railroad, 34 Minn. 227; Telegraph Co. v. Bridge Co., 36 Kan. 118; Railroad Co.'s Appeal, 122 Pa. St. 511. (2) After the court itself had refused to pass upon the question of the interference by the petitioner with the use by the defendants of their railroad and property, it should at least have instructed the commissioners that such a material interference was not authorized. Railroad v. Railroad, 4 Woods, 360; Railroad's Appeal, 103 Pa. St. 621; Perry Co. v. Railroad, 150 Pa. St. 193. (3) That the surface crossing at Gillis street would materially interfere with the uses to which the defendants' property had been lawfully appropriated was shown by the evidence introduced on the exceptions to the commissioners' report and in the trial on the issue of damages. It was shown not only that it interfered materially with the use of the adjacent lands for switching purposes but necessitated the entire abandonment of a portion of the switch yards of the defendants and the removal of the switches east of the crossing. This, added to the extreme danger of collisions, constituted a serious interference with the defendants' franchise. Railroad Co.'s Appeal, 122 Pa. St. 511. The court erred in refusing to instruct the commissioners that they had the power to require an overhead crossing. (4) Under the constitution and laws of the state the defendants were entitled to have the report of the commissioners set aside as a whole and all the matters in controversy determined by a jury as a matter of right. Section 4, article 12, of the Constitution of Missouri; Revised Statutes 1889, sec. 2543; Railroad v. Story, 96 Mo. 611; Bridge Co. v. Ring, 58 Mo. 491; Railroad v. Brick Co., 85 Mo. 335. (5) The court erred in making the order confirming the report of the commissioners as to the place and manner of crossing after the application for a change of venue had been submitted. The court should have acted upon the motion when it was presented, instead of taking it under advisement, and proceeding in the meantime to hear and dispose of the exceptions to the commissioners' report. Dowling v. Allen, 88 Mo. 293; State v. Shipman, 93 Mo. 147; Wilson v. Henderson, 15 How. Pr. 90. (6) The court should have set aside the report of the commissioners as to the point and manner of crossing, if for no other reason, because of the extraordinary danger of a grade crossing to the property of both companies and the lives of the people traveling on both roads. Railroad v. Railroad, 150 Pa. St. 193; Railroad v. Railroad, 74 Iowa 554; Railroad v. Railroad, 6 Bissell, 219; Railroad v. Railroad, 77 Pa. St. 173. (7) The defendants had been granted a right of way across Gillis street and had an easement therein which could not be damaged without the payment of compensation. Railroad v. Railroad, 89 Ga. 205; Railroad v. Railroad, 15 Ill.App. 587; Railroad v. Village, 14 Ill.App. 615; Railroad v. Railroad, 100 Ill. 21; Lewis on Eminent Domain, sec. 644. (8) The court committed error in refusing to submit to the jury as an element of damage the loss of earning or business capacity sustained to the defendants' property by the interference with free access between different portions of its road; and in instructing the jury that no damages could be allowed for interruptions and inconvenience occasioned to the defendants' business. Railroad v. Shambaugh, 106 Mo. 557; Railroad v. Railroad, 100 Ill. 21; Railroad v. Railroad, 115 Ill. 375. (9) The court also committed error in refusing the defendants' sixth instruction, which required the petitioner to pay the defendants a sufficient amount to place their road and switching grounds as nearly as possible in as good and convenient condition for business as it was before the crossings were made. Commissioners v. Railroad, 90 Mich. 385; Railroad v. Railroad, 96 Ill. 274.

Trimble & Braley for respondent.

(1) The trial court did not err in appointing commissioners before hearing appellants upon the question as to whether a grade crossing would materially interfere with the use of their property. Railroad v. Railroad, 97 Ill. 506; Railroad v. Railroad, 108 Ill. 265; Railroad v. Railroad, 3 Ind. 464; Railroad v. Railroad, 30 Ohio St. 604; Hannibal v. Railroad, 49 Mo. 480; Railroad v. Railroad, 97 Mo. 457. (2) Appellant's second and third points are not well taken. (3) The court was under no legal obligation to instruct the commissioners. See Railroad v. Railroad, 110 Mo. 510. (4) The appellants were not entitled, under the statutes or constitution, to have the report set aside as a whole, as a matter of right, and both the point and manner of crossing and the amount of compensation determined by jury. At common law and independent of the statute and constitution, neither party had a right to a jury trial on any question involved in a condemnation suit. And no such right exists in this state unless conferred by the express terms of the statute or the constitution. Proffatt on Jury Trial, sec. 84, 87, 88 and 104; Lewis on Eminent Domain, sec. 311; Mills on Eminent Domain, secs. 91, 253, 254; Railroad v. Congregation, 53 Pa. St. 449; People v. Smith, 21 N.Y. 597; Beekman v. Railroad, 3 Paige, 75; Ames v. Railroad, 21 Minn. 241-291; Railroad v. Ferris, 26 Texas, 588. (5) The constitution being silent as to how the point and manner of crossing should be determined, the legislature had the undoubted right to provide such means for determining it as it saw fit. It has provided that it shall be determined by three disinterested commissioners who shall be freeholders, residents of the county where the lands lie (secs. 2543 and 2736, Statutes, 1889). And the legislature having provided who shall determine it, no other person or tribunal on earth can do it. Mills on Eminent Domain, secs. 84, 87; St. Louis v. Gleason, 93 Mo. 33; State ex rel. v. St. Louis, 1 Mo.App. 508; Bridge Co. v. Ring, 58 Mo. 491; Springfield v. Whitrack, 34 Mo.App. 642; Gray v. St. Louis, 81 Mo. 126; Ellis v. Railroad, 51 Mo. 203. (6) The court did not err in refusing to pass on the application for a change of venue until after it had heard and determined the exceptions. Lee v. Smith, 84 Mo. 304. (7) The court did not err in excluding from the consideration of the jury the opinions of witnesses as to the probabilities of collisions and accident at the crossing. The character of the grades and the effect of the crossing upon the value of defendant's road as a unit was all shown and properly submitted in the instructions which the court gave. Possibilities or probabilities of collisions are not proper elements of damages. Mills on Eminent Domain, sec. 44a; Railroad v. Railroad, 105 Ill. 110; Railroad v. Railroad, 105 Ill. 388; Railroad v. Railroad, 121 Mass. 124; Railroad v. Railroad, 30 Ohio Stat. 604. (8) As to the appellant's point 10, it is sufficient to say that whilst the court at first refused to admit the evidence relating to the interlocking switch, that it afterward admitted all the evidence offered on that subject and instructed the jury concerning it. (9) The "hill" referred to in appellant's point 11 is at the nearest point more than a half mile away from the crossing and if trains did sometimes stall in going up that hill it proves nothing bearing on this case. (10) The action of the court in excluding all damage or inconvenience occasioned by reason of being compelled to stop at the crossing in compliance with the ordinance was correct. The defendants took their franchises subject to just such inconvenience, and are under obligation to suffer them for the public good. Nothing can be allowed for the inconvenience of stopping and waiting whilst plaintiff's trains pass over the crossing in Gillis street. Railroad v. Railroad, 97 Mo. 457; Railroad v. Railroad, 111 Mo. 666; authorities cited under point 8. (11) The plaintiff's right to grade crossings was fixed by the state constitution, the state statutes, and by the charter and ordinances of Kansas City. And defendant held its property and franchises subject to the exercise of this right, and must bear the annoyances, inconvenience and delays incident thereto for the public good. Constitution, 1875, art. 12, secs. 13, 14 and 20; Revised Statutes, secs. 2543, 2626; Ordinance 16625, sec. 1 and 6 (p. 542 Transcript); Charter Kansas City, art. 3, sec. 1; Charter of Kansas City in force at time of enacted ordinance under which plaintiff built, art. 3, sec. 1; Ordinance No. 1523, secs. 1, 2 and 4. See, also, authorities cited under points 8 and 9 above.

OPINION

Page 479

[118 Mo. 605] Burgess, J.

This is an action by the Kansas City Suburban Belt Railroad Company, petitioner, against [118 Mo. 606] the Kansas City, St. Louis & Chicago Railroad Company, and the Chicago & Alton Railroad Company, lessees of the last named company, to condemn a right of way for its double track railroad across the lands and tracks of the defendants, near Gillis street in Kansas City, and also at a point about three miles further east, near the Blue river. The proposed business of the petitioner is that of a terminal road for lines entering the city, and also for switching and...

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78 practice notes
  • 103 S.W. 135 (Mo.App. 1907), Young v. Metropolitan Street Railway Company
    • United States
    • Missouri Court of Appeals of Missouri
    • June 3, 1907
    ...motion. Knight v. Kansas City, 113 Mo.App. 561; Smoot v. Kansas City, 194 Mo. 513; Marr v. Bunker, 92 Mo.App. 651; Railroad v. Railroad, 118 Mo. 599; Bergeman v. Railroad, 104 Mo. 77; Paddock v. Somer, 102 Mo. 226. E. W. Shannon for respondent. (1) The authorities submitted in appellant's b......
  • 126 S.W. 432 (Mo. 1910), Withers v. Kansas City Suburban Belt Railroad Company
    • United States
    • Missouri Supreme Court of Missouri
    • March 15, 1910
    ...underlying rights guaranteed him by the State Constitution respecting such a contest. Constitution, art. 12, sec. 4; Railroad v. Railroad, 118 Mo. 599; Pitkinn v. Shacklett, 106 Mo. 557. (c) The counterclaim recites the allegations of fact contained in the first seven counts of the answer p......
  • 233 S.W.2d 6 (Mo. 1950), 41743, Caruthersville School Dist. No. 18 of Pemiscot County v. Latshaw
    • United States
    • Missouri Supreme Court of Missouri
    • September 11, 1950
    ...agree on price. St. Joe Term. Ry. Co. v. H. & St. J. Ry. Co., 94 Mo. 535; K.C. Suburban Belt Ry. Co. v. K.C., St. L. & C. Ry. Co., 118 Mo. 599; Consolidated School Dist. v. O'Malley, 343 Mo. 1187, 125 S.W.2d 818; City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8. (7) Maybe this......
  • 37 S.W.2d 640 (Mo. 1931), 30153, De May v. Liberty Foundry Co.
    • United States
    • Missouri Supreme Court of Missouri
    • March 31, 1931
    ...to a trial by jury as heretofore enjoyed shall remain inviolate. This contention cannot be maintained. K. C. Sub. Belt Ry. Co. v. Ry. Co., 118 Mo. 617; St. Joseph v. Geiletz, 148 Mo. 210; 35 C. J. 148, 149; Grand Trunk Western Ry. Co. v. Industrial Com., 291 Ill. 167, 125 N.E. 748; Adams v.......
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78 cases
  • 103 S.W. 135 (Mo.App. 1907), Young v. Metropolitan Street Railway Company
    • United States
    • Missouri Court of Appeals of Missouri
    • June 3, 1907
    ...motion. Knight v. Kansas City, 113 Mo.App. 561; Smoot v. Kansas City, 194 Mo. 513; Marr v. Bunker, 92 Mo.App. 651; Railroad v. Railroad, 118 Mo. 599; Bergeman v. Railroad, 104 Mo. 77; Paddock v. Somer, 102 Mo. 226. E. W. Shannon for respondent. (1) The authorities submitted in appellant's b......
  • 126 S.W. 432 (Mo. 1910), Withers v. Kansas City Suburban Belt Railroad Company
    • United States
    • Missouri Supreme Court of Missouri
    • March 15, 1910
    ...underlying rights guaranteed him by the State Constitution respecting such a contest. Constitution, art. 12, sec. 4; Railroad v. Railroad, 118 Mo. 599; Pitkinn v. Shacklett, 106 Mo. 557. (c) The counterclaim recites the allegations of fact contained in the first seven counts of the answer p......
  • 233 S.W.2d 6 (Mo. 1950), 41743, Caruthersville School Dist. No. 18 of Pemiscot County v. Latshaw
    • United States
    • Missouri Supreme Court of Missouri
    • September 11, 1950
    ...agree on price. St. Joe Term. Ry. Co. v. H. & St. J. Ry. Co., 94 Mo. 535; K.C. Suburban Belt Ry. Co. v. K.C., St. L. & C. Ry. Co., 118 Mo. 599; Consolidated School Dist. v. O'Malley, 343 Mo. 1187, 125 S.W.2d 818; City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8. (7) Maybe this......
  • 37 S.W.2d 640 (Mo. 1931), 30153, De May v. Liberty Foundry Co.
    • United States
    • Missouri Supreme Court of Missouri
    • March 31, 1931
    ...to a trial by jury as heretofore enjoyed shall remain inviolate. This contention cannot be maintained. K. C. Sub. Belt Ry. Co. v. Ry. Co., 118 Mo. 617; St. Joseph v. Geiletz, 148 Mo. 210; 35 C. J. 148, 149; Grand Trunk Western Ry. Co. v. Industrial Com., 291 Ill. 167, 125 N.E. 748; Adams v.......
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