458 S.W.2d 268 (Mo. 1970), 54665, Norfolk & W. Ry. Co. v. Greening

Docket Nº54665.
Citation458 S.W.2d 268
Party NameNORFOLK AND WESTERN RAILWAY COMPANY, Respondent, v. Kenneth J. GREENING et al., Appellants.
Case DateSeptember 14, 1970
CourtSupreme Court of Missouri

Page 268

458 S.W.2d 268 (Mo. 1970)

NORFOLK AND WESTERN RAILWAY COMPANY, Respondent,

v.

Kenneth J. GREENING et al., Appellants.

No. 54665.

Supreme Court of Missouri.

September 14, 1970

Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 12, 1970.

Page 269

Albert E. Schoenbeck, St. Louis, for respondent.

Paul Brackman, Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Clayton, Samuel C. Ebling, Millar, Schaefer, White & Ebling, St. Louis, for appellants.

MORGAN, Judge.

In this condemnation proceeding plaintiff seeks 'to condemn and appropriate' 2.6 acres of land owned by defendants 'for railroad purposes, including use of same for tracks, yards and miscellaneous structures and facilities.' The jury assessed damages at $50,500 and defendants have appealed.

The record covering the six day trial makes it apparent each party exhausted every effort to present all available evidence, but we will attempt to detail only those facts required to resolve the issues now presented.

The land in question is located in St. Louis County near Lambert Field in an industrial complex between Interstate Highways 70 and 270. On June 10, 1963, defendants purchased for $100,000 approximately 19 acres of land in the area near the east terminus of a street identified as Ford Lane. However, we are concerned only with the most eastern contiguous 7.7 acre portion thereof. This tract was divided by Cold Water Creek which extended generally in a northerly and southerly direction. The creek was approximately fifty feet wide and twenty feet deep and covered .915 of an acre. As divided, there remained 5.960 acres west of the creek and .825 of an acre on the east side. Of that part west of the creek, plaintiff seeks to condemn 2.6 acres.

Prior to date of taking on December 8, 1967, the land in question was burdened

Page 270

by two easements in favor of the Metropolitan Sewer District. The first for water drainage was 100 feet wide and followed the course of the creek. The second for an underground sanitary sewer was 36 feet wide and extended along the west edge of the 100 foot drainage easement. The 2.6 acres sought by plaintiff comprised a strip 220 feet wide extending over the sewer easement and adjacent to the west edge of the drainage easement. It was agreed the taking was subject to the restrictions of the sewer easement.

First, defendants submit that the trial court erred when it entered the initial order for condemnation and appointed commissioners to determine damages on September 8, 1967, for the reason the proposed taking was for a private instead of a public use. It is then suggested, in view of the fact plaintiff has taken possession and constructed the proposed railroad tracks, that the cause should be reversed and defendants permitted to pursue such further remedies as were reviewed in Hayden v. Grand River Mutual Telephone Corp., Mo.App., 440 S.W.2d 161. Such possibilities become of interest, however, only if it be determined the original order of condemnation was improvidently entered; and that order, being interlocutory when made, can now be considered on appeal. 'Even though a defendant may contest the right of the plaintiff to condemn, the judgment in such a case is not final or appealable until after the commissioners file their report and the exceptions thereto, if any, are tried and the amount of damages finally fixed.' State ex rel. State Highway Commission v. Hammel, Mo., 290 S.W.2d 113, 117.

The right of plaintiff to seek condemnation can not be denied. Art. 11, Sec. 9, of the 1945 Constitution of Missouri, V.A.M.S., declares railroad corporations to be 'common carriers' and Section 388.370, RSMo 1959, V.A.M.S., specifically provides in part: 'Any railroad company in this state shall have the right to take and hold all necessary ground for * * * sidetracks and other necessary purposes * * * as is now...

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18 practice notes
  • 634 S.W.2d 168 (Mo. 1982), 63307, State ex rel. Missouri State Highway Com'n v. Hensel Phelps Const. Co.
    • United States
    • Missouri Supreme Court of Missouri
    • June 8, 1982
    ...argument. Furthermore, counsel is allowed wide latitude in arguing legitimate inferences, Norfolk and Western Railway v. Greening, 458 S.W.2d 268 (Mo.1970). Nothing in the argument appears to be a direct appeal to the jurors as taxpayers, nor even to make them tax conscious. Jones v. Kansas......
  • 906 S.W.2d 829 (Mo.App. S.D. 1995), 19654, Robinson v. Empiregas Inc. of Hartville
    • United States
    • Missouri Court of Appeals of Missouri
    • August 2, 1995
    ...925 (Mo. banc 1981). Absent a clear abuse of such discretion, its ruling should control. Norfolk and Western Railway Co. v. Greening, 458 S.W.2d 268, 273 (Mo.1970). In Lewis, supra, the Supreme Court of Missouri held: "The fact that an argument may touch upon two issues, one legitimate......
  • 622 S.W.2d 920 (Mo. 1981), 62471, Lewis v. Bucyrus-Erie, Inc.
    • United States
    • Missouri Supreme Court of Missouri
    • October 13, 1981
    ...of broad discretion in the area of closing arguments, not lightly to be disturbed on appeal. Norfolk v. Western Railway Co. v. Greening, 458 S.W.2d 268, 273 (Mo.1970); S.G. Payne & Co. v. Nowak, 465 S.W.2d 17, 20 (Mo.App.1971); Lineberry v. Robinett, 446 S.W.2d Page 926 481, 486 (Mo.App......
  • 967 P.2d 1136 (N.M.App. 1998), 17,832, Enriquez v. Cochran
    • United States
    • New Mexico Court of Appeals of New Mexico
    • July 30, 1998
    ...in closing argument so long as it is based on the evidence and proper inferences therefrom); Norfolk & W. Ry. Co. v. Greening, 458 S.W.2d 268, 273 (Mo.1970) ("Of course, closing argument should be based on facts in evidence[.]"). Counsel's statements relating to her client's l......
  • Request a trial to view additional results
18 cases
  • 634 S.W.2d 168 (Mo. 1982), 63307, State ex rel. Missouri State Highway Com'n v. Hensel Phelps Const. Co.
    • United States
    • Missouri Supreme Court of Missouri
    • June 8, 1982
    ...argument. Furthermore, counsel is allowed wide latitude in arguing legitimate inferences, Norfolk and Western Railway v. Greening, 458 S.W.2d 268 (Mo.1970). Nothing in the argument appears to be a direct appeal to the jurors as taxpayers, nor even to make them tax conscious. Jones v. Kansas......
  • 906 S.W.2d 829 (Mo.App. S.D. 1995), 19654, Robinson v. Empiregas Inc. of Hartville
    • United States
    • Missouri Court of Appeals of Missouri
    • August 2, 1995
    ...925 (Mo. banc 1981). Absent a clear abuse of such discretion, its ruling should control. Norfolk and Western Railway Co. v. Greening, 458 S.W.2d 268, 273 (Mo.1970). In Lewis, supra, the Supreme Court of Missouri held: "The fact that an argument may touch upon two issues, one legitimate......
  • 622 S.W.2d 920 (Mo. 1981), 62471, Lewis v. Bucyrus-Erie, Inc.
    • United States
    • Missouri Supreme Court of Missouri
    • October 13, 1981
    ...of broad discretion in the area of closing arguments, not lightly to be disturbed on appeal. Norfolk v. Western Railway Co. v. Greening, 458 S.W.2d 268, 273 (Mo.1970); S.G. Payne & Co. v. Nowak, 465 S.W.2d 17, 20 (Mo.App.1971); Lineberry v. Robinett, 446 S.W.2d Page 926 481, 486 (Mo.App......
  • 967 P.2d 1136 (N.M.App. 1998), 17,832, Enriquez v. Cochran
    • United States
    • New Mexico Court of Appeals of New Mexico
    • July 30, 1998
    ...in closing argument so long as it is based on the evidence and proper inferences therefrom); Norfolk & W. Ry. Co. v. Greening, 458 S.W.2d 268, 273 (Mo.1970) ("Of course, closing argument should be based on facts in evidence[.]"). Counsel's statements relating to her client's l......
  • Request a trial to view additional results