City of Girardeau v. Hunze

• Decision Date: 24 May 1926
• Docket Number: 25174
• Citation: 284 S.W. 471,314 Mo. 438
• Parties: CITY OF CAPE GIRARDEAU v. HERMINIA HUNZE et al., Appellants
• Court: Missouri Supreme Court

284 S.W. 471

314 Mo. 438

CITY OF CAPE GIRARDEAU v. HERMINIA HUNZE et al., Appellants

No. 25174

Supreme Court of Missouri

May 24, 1926

Appeal from Cape Girardeau Court of Common Pleas; Hon. John A Snider, Judge.

Affirmed.

Spradling & Dalton for appellants.

(1) Instructions numbered 6, 7, 3 and 2 given at the request of respondent are erroneous, because they limit recovery to the actual physical damages, and therefore do not correctly state the measure of damages. (a) The measure of damages where a part of a farm, or certain rights therein, are condemned and taken, is the difference between the fair market value of the whole property before and its fair market value after the appropriation in view of the uses to which the condemned portion or rights are to be thereafter applied. Railroad v. Real Estate Co., 204 Mo. 565; Railroad v Kemper, 256 Mo. 279; Janes v. Levee District, 183 S.W. 700; McElroy v. Air Line, 172 Mo. 546; Doyle v. Railway Co., 113 Mo. 280. (b) Even if the actual physical damage to appellants' farm on account of the use of Cape La Croix Creek as a sewer route would be negligible and even if there had been no substantial evidence as to the extent of the damages, yet if the taking of the right to use said creek as sewer route and the laying of said twenty-one inch sewer pipe decreased the market value of the appellants' farm they were entitled to substantial damages. Prairie Pipe Line Co. v. Shipp, 267 S.W 649; St. Louis v. Hill 116 Mo. 527; Tel. Co. v. Railroad, 202 Mo. 656. (c) The opinions of appellants' witnesses as to the effect on the market value of the remainder of appellants' farm on account of the taking of the particular rights therein was competent evidence on a proper item of damage and should not have been excluded from the consideration of the jury as it was by respondent's Instructions 6, 7, 3 and 2. Prairie Pipe Line Co. v. Shipp, 267 S.W. 649; Railroad v. Brick Co., 198 Mo. 698; K. C. Railway v. Norcross, 137 Mo. 415; Rourke v. Railroad, 221 Mo. 46; Knapheide v. Jackson Co., 215 Mo. 516. (d) The collection and discharge of storm water and sewage by a sewer system and the collection of sewage and storm water that would not have otherwise drained toward Cape La Croix Creek added a burden on appellants' land which the jury was entitled to consider and it should not have been excluded from their consideration. Mining Co. v. Joplin, 124 Mo. 129; Lynch v. Railroad, 180 Mo.App. 169; Thoele v. Mill Co., 165 Mo.App. 707. (2) Instruction 4 given by the court at the request of respondent is erroneous because it put the burden of proof upon the appellants to show their damages exceeded the special benefit, if any. The burden of proof as to damages was on appellants and the burden of proof of special and peculiar benefits was on the respondent and the appellants were not required to prove that the damages exceeded the benefits. Bennett v. Woody, 137 Mo. 377; St. Louis Ry. Co. v. Co., 160 Mo. 396; 20 C. J. 282, sec. 386, p. 826, sec. 261. (3) The court erred in not striking out the statement of Hawley that he was a commissioner appointed to assess the damages in this case. Mr. Hawley "was a competent witness in this case, but the fact that he was one of the commissioners who had assessed the damages sustained by defendant should not have been permitted, either directly or indirectly, to go to the jury." School Dist. v. Land & Imp. Co., 249 S.W. 53. (4) The court erred in giving instruction numbered 7, because it did not correctly declare the land and there was no evidence upon which to base this instruction. (a) There was no evidence that respondent was the owner of a dominant estate, and it was therefore not entitled to any rights in Cape La Croix Creek. Walther v. Cape Girardeau, 166 Mo.App. 467. (b) Even if the respondent was the owner of the dominant estate it could not pollute the watercourse or collect water from other water sheds or from this water shed and discharge it in a body on the servient estate to its damage without compensation. Paddock v. Somes, 102 Mo. 226; Haynor v. Water Co., 129 Mo.App. 691; Lynch v. Railroad, 180 Mo.App. 169; Grant v. Railroad, 149 Mo.App. 306. (5) The court erred in permitting C. E. Smith to tell the jury what the city's contract provided with reference to leaving the land in the condition in which it was found, for the reason that respondent was not entitled to pay the damages in anything but money, and was not bound by this statement. 20 C. J. 768, sec. 227; Railroad v. Brick Co., 198 Mo. 698; Railroad v. McGrew, 104 Mo. 282. (6) The court erred in permitting the witnesses to detail the conditions of the slaughter houses along Cape La Croix Creek in September, 1922, for the reason that said conditions did not exist at the time the commissioners' report was filed nor would the contamination of this stream by other persons justify the city in polluting the stream without paying compensation. Damages should be fixed at date of commissioners' report. Railroad v. Imp. Co., 256 Mo. 386; Railroad v. Fowler, 113 Mo. 458; Railroad v. Stewart, 201 Mo. 491. (7) The court erred in taxing the costs of the trial against the appellants, and in the absence of appellants or their attorneys, and without giving them any opportunity to be heard, and this was an abuse of its discretion. Sec. 1796, R. S. 1919; Railroad v. Elliott, 117 Mo. 549. (8) The court erred in refusing to excuse the jurors who owned land and resided in Sewer District No. 5, because they had a direct and special pecuniary interest in the outcome of this suit, and their property was subject to special assessment to pay any judgment which appellants might recover. Edmonds v. Woodmen of America, 125 Mo.App. 214; State v. Fullerton, 90 Mo.App. 411.

James A. Finch, James A. Barks and Bush H. Limbaugh for respondent.

(1) The instructions given by the court, at the request of the respondent, as to what should be considered by the jury in determining compensation, followed the petition and the evidence offered at the trial and directed the jury in terms most favorable to appellants. (a) The instructions were given as steps in a series covering the entire case, and must be considered as a whole, and if all of the instructions given, when taken together, correctly declare the law of the case, the fact that any one of the instructions, taken alone, may be incomplete or erroneous does not constitute error. Prentiss v. Ill. Life Ins. Co., 225 S.W. 702; Hulse v. Ry. Co., 214 S.W. 154; Cassin v. Lusk, 277 Mo. 669; ChicagoGreat Western Ry. Co. v. Kemper, 256 Mo. 279. (b) Respondent acquired the right to a temporary use of a strip of appellants' land, and a limited right to use said strip of land thereafter, which uses were defined with particularity in the petition and the evidence, and Instruction 2 correctly directed the jury as to what they should consider in determining just compensation for the taking of such rights. 20 C. J. 740; St. Louis v. Brown, 155 Mo. 545; Chicago S. F. & C. Ry. Co. v. McGrew, 104 Mo. 282. (c) The rights which respondent acquired in Cape La Croix Creek were rights to use an agency already impressed with a public use, and appellants were not entitled to the same measure of damages for such appropriation, although under all the instructions, appellants got the benefit of such measure of damages. Both on reason and authority, the rule applied for measuring damages for the taking of property absolutely under the control of the owner cannot be applied when the property sought to be used is not the absolute property of the individual, but is impressed with a public use. St. Louis v. Clegg, 233 S.W. 1; McKee v. St. Louis, 17 Mo. 191; City of Valparaiso v. Hagen, 153 Ind. 337. (d) Cape La Croix Creek was impressed with a public use, because the proprietor of land through which a stream flows cannot insist that the water shall come to him in its natural, pure state, but must submit, and that too without compensation, to the reasonable use of such stream by the upper proprietors, and he must submit to the natural wash and drainage coming from towns and cities. Joplin Mining Co. v. Joplin, 124 Mo. 135; City of Valparaiso v. Hagen, 153 Ind. 337. (2) There is nothing in the record to show whether attorneys for litigants were present or absent when the judgment of the trial court was entered, but that is wholly immaterial, since the matter of taxing costs, after the filing of the report of the commissioners, rests entirely in the discretion of the court. Secs. 1796, 8363, R. S. 1919. (3) The testimony of witness C. E. Smith as to the character of work to be done was proper, in order to enable the jury to determine the character of the use of appellants' land, since the city was seeking only to condemn the surface of the right of way up to January 1, 1924. 20 C. J. 766; Railroad v. Knapp-Stout Co., 160 Mo. 396; Railroad v. Clark, 121 Mo. 169; Railroad v. Union Stock Yards, 120 Mo. 541. (4) By express provision of the statute, all residents and taxpayers of the city were competent jurors, unless otherwise disqualified. Sec. 6637, R. S. 1919. (5) It was proper for the court to permit witnesses to testify as to conditions at slaughter houses on date other than commissioners' report, since other evidence was offered to show that similar conditions had prevailed at the slaughter houses long before and shortly following the commissioners' report. 22 C. J. 86, 87; Nelson v. Jones, 245 Mo. 579; Kansas City So. Ry. Co. v. Second Street Imp. Co., 166 S.W. 296.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

This is a suit brought by the city of Cape Girardeau under the provisions of Sections 8354 to 8371, inclusive Revised Statutes 1919, to condemn an easement in a strip of land, approximately 2469 feet in length and 10.5...