St. Louis, Keokuk & Northwestern Railroad Company v. St. Louis Union Stock Yards Company

• Decision Date: 27 February 1894
• Parties: St. Louis, Keokuk & Northwestern Railroad Company v. St. Louis Union Stock Yards Company, Appellant
• Court: Missouri Supreme Court

25 S.W. 399

120 Mo. 541

St. Louis, Keokuk & Northwestern Railroad Company v. St. Louis Union Stock Yards Company, Appellant

Supreme Court of Missouri, Second Division

February 27, 1894

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

Campbell & Ryan for appellant.

(1) Just compensation must be paid to the owner; a fair equivalent -- a just indemnity for the damage the owner may sustain by reason of such appropriation, in view of the uses to which the land may be put. Railroad v. McGrew, 104 Mo. 282; Railroad v. Porter, 112 Mo. 368; Bridge Co. v. Schaubacher, 57 Mo. 582; Lewis on Eminent Domain, sec. 479. The damages to be paid are for the injury to the whole of the property as it is left in view of the uses to which the part taken is to be put. 104 Mo. 291. (2) The facilities for river and railway transportation of stock are property rights which belong to the owner of the land, and if injured by the appropriation of the land constitute damage to the remaining land for which the owner should be compensated in damages. 104 Mo. 291-294. (3) The expense of making new chutes to receive the business of respondent which was formerly by the Wabash switch was an expense for readjustment which must be considered in awarding a just indemnity. 104 Mo. 294. (4) The only benefits to be considered, are the direct and peculiar benefits resulting to the land, and not the general benefits to it in common with others. Railroad v. Waldo, 70 Mo. 632; 104 Mo. 291. (5) The plaintiff's instructions assume as a fact that there were peculiar benefits resulting to the remainder of defendant's property by the taking of the strip in question, and hence were bad as assuming a controverted and material fact. Stone v. Hunt, 94 Mo. 475; Comer v. Taylor, 82 Mo. 341; Wilkerson v. Thompson, 82 Mo. 317; Peck v. Ritchey, 66 Mo. 114; Railroad v. Griffin, 68 Ill. 499; Durham v Goodwin, 54 Ill. 469. (6) The instruction given for plaintiff was bad in this, that it singled out particular facts in evidence, and instructed the jury to consider them only in determining the extent of the damage to defendant's property not taken. Barr v. City of Kansas, 105 Mo. 550; Spohn v. Railroad, 87 Mo. 74; Gilliam v. Ball, 49 Mo. 249; Rose v. Speis, 44 Mo. 20; Fine v. Schools, 39 Mo. 59. This instruction was also misleading, as pointed out in our argument on the instructions. (7) The railroad, under these condemnation proceedings, has the exclusive right to the use and occupation, in connection with its business, of the right of way, both above and below the surface. And that the right of the stock yards to the use of this passage way under the tracks was not even a mere license or privilege (which would have been revocable at the pleasure of the railroad), there not having been any contract or arrangement of any kind between the railroad and stock yards for its being built or maintained. Pitzman v. Boyce, 111 Mo. 387; Railroad v. McGrew, 104 Mo. 286; Moss v. Railroad, 85 Mo. 86; Jones v. Railroad, 84 Mo. 151; Wheeler v. Railroad, 12 Barb. 227; Kyle v. Railroad, 2 Barb. Ch. 490; Railroad v. Holton, 32 Vt. 43; Hozen v. Railroad, 2 Gray, 574; Railroad v. Boyd, 8 Phil. 224; Gas Co. v. Gas Co., 131 Pa. St. 522; Gas Co. v. Davis, 23 A. 218; Railroad v. Railroad, 96 Ill. 274. (8) Plaintiff's instruction with reference to the commissioners' award was bad in that it injected into the case an issue not made by the evidence. Paddock v. Somes, 102 Mo. 226; Brown v. Railroad, 101 Mo. 484; Merret v. Poulter, 96 Mo. 237. (9) The concluding part of plaintiff's instruction commencing with the words "then the jury are instructed that it is of no importance," and down to the end of the paragraph, is clearly bad, being argumentative and a comment on the evidence. Couch v. Gentry, 113 Mo. 248; Forrester v. Moore, 77 Mo. 651; Zimmerman v. Railroad, 71 Mo. 476; Jones v. Jones, 57 Mo. 138; Anderson v. Kincheloe, 30 Mo. 520; Fine v. Schools, 30 Mo. 166; Chouquette v. Barada, 28 Mo. 491; Thorp v. Galwey, 85 Ill. 612; Ludwig v. Sager, 84 Ill. 99; Chicago, etc. v. Griffin, 68 Ill. 499; Thompson v. Force, 65 Ill. 370; Chapman v. Cowrey, 50 Ill. 512; Morris v. Lachmann, 68 Cal. 109; Thompson on Trials, sec. 2301. (10) The court further erred in refusing instructions.

John G. Chandler for respondent.

(1) There was no error committed by the trial court in ruling on the evidence. (2) The instructions given at the instance of respondent fairly submitted the whole case to the jury, assuming nothing, but submitting to the determination of the jury every fact in dispute, and the effect thereof upon the question and measure of damages. Every part and parcel thereof is supported by the following authorities: Railroad v. McGrew, 104 Mo. 282; Lawrence v. Boston, 119 Mass. 129; Lewis on Eminent Domain, secs. 478, 481, 487, 488, 498; 2 Dillon on Mun. Corp., sec. 624; Wood's Railway Law, sec. 257; Platt Co. v. Newby, 25 Mo. 258; Lingo v. Burford, 112 Mo. 149; Railroad v. Ridge, 57 Mo. 599; Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. Allen, 22 Kan. 285; Railroad v. Kregeloe, 5 P. (Kan.) 15; Railroad v. Fletcher, 21 N.E. 577; Railroad v. Railroad, 105 Ill. 388; Hays v. Railroad, 54 Ill. 373; Co. v. Owsley, 13 P. 186; McGregor v. Gas Co., 21 A. 13; Packard v. Railroad, 25 A. (N. J.) 506; Chicago v. Taylor, 125 U.S. 161. (3) The instruction given for respondent, if it had any fault, was too favorable to appellant. It in effect told the jury to allow appellant each and every item of cost of removal and rearranging its yard. Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 282; Lewis on Eminent Domain, sec. 498. (4) That portion of respondent's instruction which declares that for the purposes of this case appellant has a passage way by the reconstructed driveway or stock chute, was correct, and likewise the addition to the same purport made to appellant's instruction number 16. Railroad v. Allen, 22 Kan. 285; Railroad v. Kregeloe, 5 P. (Kan.) 15; Railroad v. Fletcher, 21 N.E. 577; Railroad v. Railroad, 105 Ill. 388; Co. v. Owsley, 13 P. 186; McGregor v. Gas Co., 21 A. 131; Packard v. Railroad, 25 A. (N. J.) 506; Chicago v. Taylor, 125 U.S. 161; Lewis on Eminent Domain, sec. 481. (6) There was no evidence to warrant appellant's instructions (refused) numbers 2, 3, 5, 6 and 9. Instruction number 1 was contrary to law, as was also number 4. There was no evidence of future prospective uses to warrant the second clause of instruction number 14. All that was material in this clause was embraced in other instructions. Chicago v. Taylor, 125 U.S. 161; Boom Co. v. Patterson, 98 U.S. 403.

OPINION

Burgess, J.

This proceeding was instituted by plaintiff to condemn for its right of way a strip of land fifty feet in width by five hundred and fifty-five feet in length, lying parallel with and eleven feet east of the west wharf line, as established by ordinance 5403, of the city of St. Louis; said strip being a part of a tract of land owned by defendant, containing about twenty-seven acres. Twenty-two acres of this property is bounded on the north by Bremen avenue; on the east by the Mississippi river; on the south by the property of Knapp, Stout & Co., and on the west by Hall street. Five acres owned by defendant and used in connection with the twenty-two acres, lie west of Hall street fronting on Bremen avenue and extending south five hundred and fifty feet, making twenty-seven acres in all owned and used for stock yard purposes. The two tracts are separated by Hall street. The twenty-two acre tract is low bottom land, about eight or nine feet below the grade of Bremen avenue and Hall street. Near the west wharf line, it is protected by a levee of the same elevation as Bremen avenue, and extending therefrom so as to connect with a levee of corresponding elevation of Knapp, Stout & Co. East of the levee the land slopes to the river. West of the levee and covering most of the ground to Hall street, there were stock sheds and pens, a hotel, offices and other structures suitable to a business of that sort; from the top of the levee eastward towards the river, there was erected on piles a roofed structure called a runway, driveway or cattle chute, through which stock was driven to and from the yard in shipping and receiving from the river. On Bremen avenue near the river and east of the right of way was a slaughter house and grain elevator. On the south or line of Knapp, Stout & Co., also on piles, was a long wooden building, a salt warehouse, reaching to ordinary low water on the east and extending on the west beyond the east line of the right of way, sixty-five feet on the north side and forty-five feet on the south. Within the right of way was a rendering house. The land was well improved for the purposes for which it was used, there having been erected thereon all necessary structures and conveniences in modern use for such a business enterprise.

The property had a private switch connecting with the Wabash Road running along its south side from Hall street, which furnished facilities for loading and unloading cattle, and for connecting with all other roads coming into the city of St. Louis and with the two transfer railways, which connected with roads on the east side of the Mississippi river. This switch was used for the purposes of transporting cattle to and from the stock yards, and for the purpose of carrying grain to and from the grain elevator on the property. The defendant constructed its building with unloading chutes to receive cattle from cars on this switch, and the chutes were capable of taking twenty-three cars at one time. This same switch could have been turned so as to accommodate the eastern part of the property with railroad facilities under the control...