Kansas City Suburban Belt Railroad Company v. Norcross
| Decision Date | 09 February 1897 |
| Citation | 38 S.W. 299,137 Mo. 415 |
| Parties | Kansas City Suburban Belt Railroad Company, Appellant, v. Norcross et al |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.
Affirmed.
Trimble & Braley for appellant.
(1) The court erred in admitting testimony regarding the feasibility of the proposed roadway, in permitting the map, exhibit "A," to be introduced in evidence, which map was not a faithful representation of the land either at the time the land was taken or at the trial, and was based wholly upon the imaginations and conjectures of defendants, and in allowing certain witnesses to testify to the value of the lands with the proposed road located over them. Goodwin v. Evans, 33 N.E. 1031; Fleming v. Railroad, 34 Iowa 353; Railroad v. Pearson, 35 Cal. 247; Pinkham v. Chelmsford, 109 Mass. 225; Gardner v Brookline, 127 Mass. 358; Tidewater Canal Co. v Archer, 9 G. & J. 479; Railroad v. Suydam, 17 N. J. L. 25; Burt v. Wigglesworth, 17 Mass. 302; Powers v. Railroad, 33 Ohio St. 429; Munkwitz v Railroad, 64 Wis. 403; Dorlan v. Railroad, 46 Pa. St. 520; Lewis on Em. Dom., sec. 480; Railroad v. Abell, 18 Mo.App. 632; Railroad v. Cleary, 125 Pa. St. 442. (2) The court erred in admitting in evidence the map of defendants marked exhibit "A," for the reason that it was not proved that the defendants owned any other lands than those mentioned in the petition. For the same reason the court erred in hearing evidence of damages to other land than that mentioned in the petition, in refusing plaintiff's instruction number 7, and in giving defendants' number 6. Zeitinger v. Hackworth, 117 Mo. 505; Mills on Eminent Domain, secs. 161 and 167; Jones v. Railroad, 68 Ill. 380; Mix v. Lafayette Railroad, 67 Ill. 318; Railroad v. Coleman, 3 Wash. 228; Railroad v. Grovier, 41 Kan. 685; Reisner v. Railroad, 27 Kan. 383, in effect overruling Railroad v. Owen, 8 Kan. 418, cited by respondents in their brief; Robbins v. Railroad, 6 Wis. 636; Diedrich v. Railroad, 42 Wis. 248; Winchester v. Stevens Point, 58 Wis. 350. (3) The court erred in permitting T. M. James to testify as an expert on values of land and upon damages occasioned the defendants by the construction of the railroad. He was not qualified to express an opinion. He did not testify to any acquaintance with the property at the time the railroad was built and his entire information was founded "on what property holders were holding their property at." He knew of no sales. Railroad v. Pearson, 35 Cal. 247; Buffum v. Railroad, 4 R. I. 221; Michael v. Crescent Pipe Line, 159 Pa. St. 99; Railroad v. Vance, 115 Pa. St. 325; Gorgas v. Railroad, 144 Pa. St. 1; Flint v. Flint, 6 Allen, 34. (4) The testimony of witness Brooks, upon the value of the entire brick plant on the lands mentioned in the petition and off them, was improperly admitted. (5) The second specification in defendant's first instruction is erroneous because it left to the jury to find without evidence the quantity of land owned by said defendants. It assumes that there is inconvenience in getting from one side of the railroad to the other. The fourth specification in same instruction is erroneous because it contains a false definition of peculiar benefits. The Norcross idea of peculiar benefits is that there are none. Lee v. Railroad, 53 Mo. 178; Smith v. Combs, 78 Mo. 32; Railroad v. Ridge, 57 Mo. 599; Railroad v. Waldo, 70 Mo. 629; Dougherty v. Brown, 91 Mo. 26; Newby v. Platte Co., 25 Mo. 258; Hosher v. Railroad, 60 Mo. 303; McReynolds v. Railroad, 110 Mo. 484.
Brown, Chapman & Brown and J. M. Sandusky for respondent.
(1) It has been decided in a large number of cases that possession under a deed claiming title is prima facie evidence of title. Crow v. Marshall, 15 Mo. 499; Barry v. Otto, 56 Mo. 179; Miller v. Marks, 20 Mo.App. 369; Keith v. Bingham, 100 Mo. 308, Railroad v. Owen, 8 Kan. 418; 1 Greenleaf on Evidence, sec. 618; 2 Greenleaf on Evidence, sec. 555; 2 Wharton on Evidence, sec. 1332; 2 Best on Evidence, sec. 366; Ward v. McIntosh, 12 Ohio St. 231. (2) Any evidence which tended to show the value of the improvements, the mannerin which they were affected, or the difference in value between the plant as it stood before and after the construction of the road was competent testimony. Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 282; Railroad v. Porter, 112 Mo. 361; Ragan v. Railroad, 111 Mo. 456; Patterson v. Boston, 23 Pick. 425; Railroad v. Capps, 72 Ill. 188; Mills on Eminent Domain, sec. 192. (3) In condemning land its value is to be assessed with reference to what it is worth for sale in view of the uses to which it may be put, and not simply with reference to its productiveness to the owner in the condition in which he has seen fit to leave it. Bridge Co. v. Ring, 58 Mo. 496; Lewis on Eminent Domain, secs. 478 and 479; Boom v. Patterson, 98 U.S. 408; Goodin v. Railroad, 18 Ohio St. 169; 6 Am. and Eng. Ency. of Law, p. 569. (4) The jury are not confined to only the purpose to which the land is devoted. They may consider any purpose for which it is adapted, and which enters into and affects its market value. Bridge Co. v. Ring, 58 Mo. 491; King v. Railroad, 32 Minn. 224; Railroad v. Braham, 79 Pa. St. 447; Washburn v. Railroad, 59 Wis. 364; Railroad v. Keith, 53 Ga. 178; Railroad v. McGehee, 41 Ark. 202; 6 Am. and Eng. Ency. of Law, p. 569. (5) Where a part of a tract of land is taken the owner is entitled to recover not simply the value of the land taken, but also the direct injury to the remainder of the land resulting therefrom. Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. Waldo, 70 Mo. 630; 6 Am. and Eng. Ency. of Law, pp. 571, 573, 574; Railroad v. Anderson, 39 Ark. 167; Putnam v. Douglas County, 6 Ore. 328. (6) In the case of city property, the fact that the premises have been platted as distinct lots will not affect the owner's right to recover for an injury to the whole where they are in fact used for the same purpose and herein a tract of land. 6 Am. and Eng. Ency. of Law, p. 578; Cummins v. Des Moines, 63 Iowa 397; Welch v. Railroad, 27 Wis. 108; Huron v. Voorhes, 50 Mich. 506; Railroad v. Dressel, 110 Ill. 89; Sherwood v. Railroad, 21 Mich. 122; Lewis on Eminent Domain, sec. 475; Railroad v. McGrew, 104 Mo. 182. (7) The testimony of witnesses James Shinnick and Voorhees was competent. The persons who testify in these cases are not supposed to have science or skill superior to that of the jurors. They have merely a knowledge of the particular facts in the case. Railroad v. Calkins, 90 Mo. 543; Railroad v. Delissa, 103 Mo. 125; Railroad v. Stock Yards, 120 Mo. 550; Swan v. Middlesex, 101 Mass. 173. (8) As to this class of cases the courts have held that the qualifications of witnesses to express an opinion as to the value of land is largely in the discretion of the trial judge. Lewis on Eminent Domain, sec. 473; Railroad v. Anderson, 39 Ark. 167; Howard v. Providence, 6 R. I. 514; Railroad v. Kirby, 44 Ark. 103; Warren v. Spencer Water Co., 143 Mass. 155.
This is a proceeding by condemnation to subject certain real estate of defendants' in Kansas City to the public use of a right of way for the plaintiff railway company. After the preliminary steps taken, the commissioners filed with the circuit court of Jackson county their report, to which defendants filed exceptions. The exceptions were sustained and an appraisement duly ordered by a jury. On application of defendants a change of venue was awarded from Jackson to Clay county, where the cause was tried, resulting in a verdict for $ 7,000 for defendants, and plaintiff appeals.
All exceptions to be reviewed arise out of the trial of the cause in the Clay county circuit court, and concern only the propriety of the proceedings therein to determine the damages sustained by defendants.
To fix the location of the land involved in this proceeding, its surroundings and the location of the proposed railroad thereon, I have caused to be inserted herein a map used by counsel during their argument before this court.
The description of the land sought to be acquired by plaintiff, as ascertained from its petition, is as follows:
"Two certain strips or pieces of land, one of which comprises parts of lots numbered respectively five (5) and six (6) of block number 4, and lots number six (6) and seven (7) of block number three (3), in that part of Kansas City, Missouri, known as Lykins' addition, and also a part of the vacated alley which lies south of the north line of said lot number 6 of block number 3, and east or northeast of the center of [SEE PLAT IN ORIGINAL] lot number 7 of block number 4 of said Lykins' addition; and the other of which said strip comprises a part of lot number five (5) of block number five (5) of the same addition; said two strips or pieces of ground being more fully described as follows: that is to say, so much of said lots and vacated alley above described as is included within lines on each side of, parallel to and eight (8) feet equally distant from the center line of the Kansas City Suburban Belt Railroad Company's line of road, as the same is shown to be located upon and across said land by the profile map of the line of said road filed in the office of the county clerk of Jackson county, Missouri (under the name of the Consolidated Terminal Railway Company of Kansas City), on the twenty-ninth day of April, 1892."
The property is all located west of Broadway, and between the Missouri Pacific and Hannibal & St. Joe Railway tracks, and extends west from Broadway to Washington street, as appears by the above diagram.
The defendants claim to own...
To continue reading
Request your trial