Springfield & S. Ry. Co. v. Calkins

• Decision Date: 31 January 1887
• Citation: 3 S.W. 82,90 Mo. 538
• Parties: SPRINGFIELD & S. Ry. Co. v. CALKINS, Adm'r, etc.
• Court: Missouri Supreme Court

3 S.W. 82

90 Mo. 538

SPRINGFIELD & S. Ry. Co. v. CALKINS, Adm'r, etc.

Supreme Court of Missouri.

January 31, 1887.

1. RAILROAD COMPANIES — PROCEEDING TO CONDEMN LAND — PLEADING — ARBITRATION — VARIANCE.

Under the issues as made by the pleadings, the inquiry was as to the damages, if any, sustained by the defendant by reason of the taking of his land by the plaintiff railroad company for the right of way of its road; and where, upon the trial, plaintiff offered to prove an arbitration, held, that the offer was properly rejected, the arbitration being new matter in bar, and, as such, should have been set up by appropriate pleading.

2. SAME — VALUE OF LAND — OPINION — DAMAGES.

Upon the question of the value of property, real or personal, and as to the amount of damages done to property in controversy, parties shown by the evidence to be acquainted with the value or damage may, in connection with the facts, state their opinion as to the value or damage.

3. SAME — LAND DESCRIBED IN PETITION — DAMAGES — LIMITATION OF INQUIRY.

In a proceeding begun by a railroad company to condemn certain lands of defendant for a right of way for plaintiff's railroad, the land of defendant described

in the petition was the 80-acre tract, being the S. ½ of the S. E. ¼ of section 29; but the defendant's farm, of which said tract was a part, consisted of 94 acres, and was an entire, compact tract of contiguous parcels. Held, that the jury had a right to consider the entire tract of defendant in the assessment of damages, and that the inquiry is not confined to the tract of land described in the petition.

4. ARBITRATION — CONFIRMATION OF AWARD — NOTICE — REV. ST. MO. § 334.

An award of arbitrators, such as is contemplated by chapter 4, Rev. St. Mo., is not subject to confirmation by the court, unless a copy thereof, together with a notice in writing of the motion to confirm, is served upon the opposite party at least 15 days before filing the award and motion in the proper court. Section 334, Rev. St. Mo.

Appeal from circuit court, Dade county.

John O'Day, for appellant. B. U. Massey, for respondent.

RAY, J.

This is a proceeding begun by plaintiff to condemn certain described lands of defendant for a right of way for the railroad of plaintiff. The petition is in the usual form for such actions. The strip of 100 feet taken for said right of way amounted to 3.13 acres, and the land cut off from the main body of the farm, which consisted of 94 acres, contained 7 acres. After the filing of the petition with the circuit clerk of Green county, in July, 1882, the court ordered the hearing thereof for July 15, 1882, and that 10 days' notice be given defendant, which was done; and on July 15th three commissioners were appointed, who, after taking the statutory oath, and viewing the premises, filed their report on July 24th, awarding defendant damages in the sum of $200. Thereafter, and on August 3d, defendant filed exceptions to said report of the commissioners, and demanded a jury to assess damages, and the award was upon this ground set aside by the court in January, 1883. At a subsequent term, the venue was changed to the circuit court of Dade county, where the cause came on for trial at the April term, 1884, and resulted in a verdict for defendant for damages in the sum of $450, upon which judgment was rendered, and from which this appeal is prosecuted.

Before the introduction of any evidence, the plaintiff offered to prove, that after the change of venue was taken, and subsequent to the last term of the Dade circuit court, the plaintiff and defendant, by instrument of writing duly executed, submitted to the decision of two arbitrators the subject-matter of controversy between them in these proceedings, and agreed that a judgment of the court should be rendered upon the award so made; that two arbitrators were duly selected, and appointed a time and place for hearing, and notified the parties thereof, and did take and subscribe the statutory oath to faithfully hear and examine the matters in controversy, and make a just award; that they did meet, and hear the allegations of the parties pertinent and material to the cause, and did award the defendant the sum of $405, which award was made in writing, subscribed by the arbitrators with their oath therewith filed, and attested by a subscribing witness. Plaintiff asked to be allowed to prove these facts, to have the award confirmed, and that judgment be rendered accordingly. The court refused to admit the evidence, or to render judgment according to the award, and plaintiff at the time excepted.

If the award here mentioned is such as is contemplated by the statute, (chapter 4, entitled "Of Arbitrations,") it was not subject to confirmation by the court, unless a copy thereof, together with a notice in writing of the motion to confirm, had been served on defendant at least 15 days before filing the award and motion in the proper court. Rev. St. § 334. If this course was not adopted, the arbitration, if relied on at the trial, should have been set up in the pleadings by amended or supplemental pleading, or plea puis darrein continuance. When offered in evidence by plaintiff, it was objected to by defendant upon the ground that it was not pleaded, and therefore immaterial, and was excluded by the court for this reason. Under the issues, as made by the pleadings, the inquiry was as to the damages, if any, sustained by the defendant by reason of the taking of the land by plaintiff for its said right of way for the railroad. The arbitration was therefore new matter in bar, and, as such, should have been set up by appropriate pleading; and, as this was not done, the evidence in that behalf was, we think, properly excluded.

A further exception to the ruling of the trial court, urged for a reversal, is that witnesses were permitted to express their opinion as to the...