Ragan v. Kansas City & S. E. R. Co.

• Decision Date: 14 June 1898
• Citation: 144 Mo. 623,46 S.W. 602
• Parties: RAGAN et al. v. KANSAS CITY & S. E. R. CO.
• Court: Missouri Supreme Court

46 S.W. 602

144 Mo. 623

RAGAN et al. v. KANSAS CITY & S. E. R. CO.

Supreme Court of Missouri, Division No. 2.

June 14, 1898.

INSTRUCTIONS — ASSUMING CONTROVERTED FACTS — RAILROADS — EMINENT DOMAIN — ELEMENTS OF DAMAGES — REDUCTION — EFFECT OF ABANDONMENT.

1. Where an allegation, though controverted by the answer, is supported by conclusive evidence, all one way, and by record evidence, it is not error to give an instruction assuming such allegation as true.

2. The fact that a railroad company had used certain land without authority for a less time than the period of limitations does not render an entry by its grantee without the consent of the owner legal.

3. On an issue as to the value of land taken by a railroad, the jury may consider the quality of the land as an element of damages.

4. An objection that an instruction allowing interest on the damages from the time of the taking of the land was erroneous, on the ground that the rents were not deducted, cannot be urged on appeal, where the question of rents was not raised by the answer or on the motion for a new trial.

5. It is not error to refuse instructions when there is no evidence on which to base them.

6. A complaint alleging the appropriation of a strip of land a certain number of feet in width, and an answer averring lawful possession of the premises described in the complaint, dispenses with evidence as to the width of such

strip as a basis for instructions as to damages.

7. A railroad company, after taking possession of certain land for a right of way, laying its tracks thereon, and running cars over it for several years, cannot diminish the amount of damages for such taking by a showing that said land was afterwards abandoned by it, and all interest therein disclaimed.

8. In an action against a railroad for the appropriation of land for a right of way, the owner is entitled to recover the value of the land taken, and the damages, if any, to the tract of which it forms a part, estimated as of the date of taking possession, less the benefits peculiar to said tract from the location of the road.

Appeal from circuit court, Jackson county; J. V. C. Karnes, Special Judge.

Action by Lucinda H. Ragan and others against the Kansas City & Southeastern Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Johnson & Lucas, for appellant. Wash Adams and N. F. Heitman, for respondents.

BURGESS, J.

This is an action for damages for the appropriation by defendant for its right of way of a strip of land 100 feet wide through two lots in Westport, Jackson county, Mo. The case was before this court on a former occasion. 111 Mo. 456, 20 S. W. 234. The lots have a frontage of 132 feet on Mill street, and are 120 feet in depth. In 1874 the Kansas City, Memphis & Mobile Railroad Company graded a roadbed across the lots, pulling down the fencing around the same, and part of a shed room attached to a house. This company did not pay anything for the land taken, nor did it condemn it for right of way. From 1874 to 1887 nothing was done on the roadbed over these lots by said railroad company; nor was the right of way in its actual adverse possession for more than 10 years before 1889. In the latter part of the year 1886 the entire line of the Kansas City, Memphis & Mobile Railroad Company, including whatever rights that company had in the right of way over the lots in question, had been acquired by mesne conveyances, and was owned by the Kansas City & Southern Railroad Company. About the same time this last-named company leased, during its corporate existence, to the defendant, its graded roadbed, including that over the lots in question; which, under this authority, in the year 1887, took possession of the graded roadbed, including that part of it extending across the lots, and laid a track on it, and ran trains over it, for about three years, after which time it asserted no claim to that part on the lots claimed by the plaintiff Mrs. Ragan, but removed therefrom its ties and rails. Other facts, if deemed necessary, will be hereafter stated in the opinion.

Plaintiffs recovered a verdict for $2,000. They thereafter remitted $500 of this sum, and judgment was rendered in their favor for $1,500. Defendant appealed.

Before the case was argued in this court plaintiffs filed their motion to dismiss the appeal because of the insufficiency of the abstract, for the alleged grounds that it does not set forth so much of the record as is necessary to a full and complete understanding of all questions presented to this court for decision, and does not set forth a copy of so much of the record as is necessary to be consulted in the disposition of all the assigned errors. While the abstract is not as complete as it should be, it is not, we think, so imperfect as to justify a dismissal of the appeal upon that ground. It seems to be a substantial compliance with the rules of this court.

Several rulings of the court on the admission and rejection of testimony are assigned as error, but the objections seem to have been rather technical than otherwise. There was nothing in the testimony thus admitted that could have in any way prejudiced the rights of defendant, or which would justify a reversal of the judgment upon that ground.

The court, at the request of plaintiffs and over the objection and exception of defendant, instructed the jury as follows: "(1) The court instructs the jury that it is admitted that plaintiff was the owner, as alleged, of the property described in the petition; and there is no evidence that she ever granted to the Kansas City, Memphis & Mobile Railway Company, or its successors or assigns, the right of way over her lots, or that she was ever paid anything therefor; and there is no evidence that the Kansas City, Memphis & Mobile Railroad Company, its successors or assigns, ever had, for a period of ten years prior to to 1889, the open, notorious, continuous, and adverse possession of said right of way over said lots; and the court declares, as a matter of law, from the evidence, that the entry by the defendant upon plaintiff's said lots, in 1887, was illegal, and the plaintiff is entitled to recover the damages then sustained by the act of the defendant in entering upon said premises and constructing and operating a railroad thereon. (2) The court instructs the jury that, in ascertaining the damages which the plaintiff is entitled to recover as against this defendant, you will take the lots and improvements in the condition which they were when the defendant entered upon the premises in 1887; and any grading or damages done prior thereto, if any, you will not consider in arriving at your verdict. (3) In estimating the damages to the land in controversy, the jury will consider the quality and value of the land taken by the defendant company for a right of way, and the damages to the whole tract by reason of the road running through it, and deduct from the amounts the benefits, if any, peculiar to said tract of land, arising from the running of the road through the farm; and by peculiar benefits to the land is meant such benefits as that land derives, from the location of the road, which are not common to the other lands in the neighborhood; and in this connection you are instructed that the damages are to be fixed and determined as of the date that the defendant, the Kansas City & Southern Railroad Company, took possession of the lots in controversy in 1887, and not of any other date, and to the amount of damages so arrived at, if any, the jury may add interest at 6 per cent. from date of taking to day of trial, but in no event can your verdict exceed $7,000."

The following instructions were asked by defendant, and refused: "(1) If you believe from the evidence that the Kansas City, Memphis & Mobile Railroad Company entered into the possession of the premises in 1874, and constructed its grade thereon, then plaintiff's cause of...