Kansas City & N. C. R. Co. v. Shoemaker

• Decision Date: 26 February 1901
• Citation: 61 S.W. 205,160 Mo. 425
• Court: Missouri Supreme Court
• Parties: KANSAS CITY & N. C. R. CO. v. SHOEMAKER.

61 S.W. 205

160 Mo. 425

KANSAS CITY & N. C. R. CO. v. SHOEMAKER.

Supreme Court of Missouri, Division No. 2.

February 26, 1901.

RAILROADS—RIGHT OF WAY—CONDEMNATION —DAMAGES—CHARGE—REQUEST.

1. In proceedings to condemn a railroad right of way through defendant's farm, there was evidence to prove the facts on which the instructions were predicated, and the court, at defendant's request, charged that in estimating the damages the jury should consider the amount and value of the land taken, the size and shape of the two tracts into which the farm was thereby divided, the inconvenience resulting from the location of the railroad, and allow defendant such sums as will reasonably compensate him for the injury sustained. Held, that giving such charge was not error, where, at plaintiff's request, the court charged in detail as to matters which could not be considered, and correctly defined the term "market value."

2. Where, in proceedings to condemn a railroad right of way through a farm, the jury are correctly instructed as to the meaning of "market value," and also in detail as to the matters which may and may not be considered in estimating the compensation to be awarded, the charge is not erroneous for failure to expressly state that the damage is the difference between the market value of the farm before and after the appropriation, where no request for such instruction was made.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Proceedings instituted by the Kansas City & Northern Connecting Railroad Company to condemn a right of way through the lands of Peter B. Shoemaker. From a judgment entered after trial on exceptions to the report of the commissioners, the plaintiff appeals. Affirmed.

Lathrop, Morrow, Fox & Moore and J. P. Gilmore, for appellant. Sandusky & Sandusky, for respondent.

GANTT, J.

On October 14, 1897, the plaintiff railroad company instituted a condemnation proceeding in the circuit court of Clinton county to condemn a right of way about three-fourths of a mile in length, and containing 9.33 acres, through the farm of defendant, Shoemaker. Commissioners were appointed, damages assessed, and exceptions duly filed. Upon proper application, a change of venue was awarded to Clay county. At the March term, 1898, a jury trial was had, and the defendant's damages caused by the appropriation were assessed at $2,500. This appeal is from the judgment entered upon that verdict in the Clay circuit court.

There is but one assignment of error, and that relates to the sufficiency of the first instruction given by the court for the defendant. In order, however, that the sufficiency of that instruction may be properly tested, we deem it proper that the whole series should be considered with it, and the evidence in substance. The plaintiff, in its abstract of the record, says: "To sustain the issues on behalf of both defendant and plaintiff, evidence was introduced tending to prove the facts upon which the instructions in each behalf were predicated, and especially evidence tending to show the value of that part of defendant's (Shoemaker's) land which was taken, and the depreciation in the value of the residue thereof, and also the value of the land before the right of way was taken, and what its value would be thereafter; there being a substantial conflict in the estimates of the witnesses on behalf of defendant and plaintiff, respectively." As indicating the theory on which defendant sought to show his damages, the following question was put to all, or nearly all, of his witnesses: "Q. Now, Mr. Jones, taking into consideration the quantity of land taken, which is agreed to be 9.33 acres, the size and shapes of the tracts into which the one tract is divided, as its market value may be affected by that division into those sizes and shapes, and the cuts and fills on that tract, and the difficulty, if any, of getting from one side to another by having to go to railroad crossing to get over from one side to the other, what, in your opinion, would be the depreciation in value of the tract on account of those inconveniences? Answer. I don't know that I fully understand the question. Question. The question is, taking into consideration all these elements that may affect the market value of the farm,—the land taken, the division of the one tract into two, the cuts and fills, the inconvenience of getting from one side to the other, and all these matters that affect the market value of the land or depreciate its value,—what, in your judgment, would be the amount of that depreciation to the entire tract? Answer. I think the value of the land, which you said was about 9 1/3 acres,—I don't know the exact amount,—figure that at an average price, and the damages to the entire farm as a whole, I think it would run in the neighborhood of $2,800 or $2,850 perhaps." Other witnesses to the same question estimated the damages at a smaller sum. At the close of all the evidence, the court instructed the jury, on behalf of defendant, Shoemaker, as follows: "(1) In estimating the damages to be allowed the defendant, the jury will take into consideration the amount and value of the land taken for right of way, the size and shape of the two tracts into which the farm is divided by the location of the right of way through it, the cuts and fills, the inconvenience in getting from one part of the farm to another on account of the location of the railroad, any inconvenience in getting to water, and will allow defendant such sum as will reasonably compensate him for the in jury he has sustained by the appropriation of the right of way through the farm. (2) The jury will make their estimate of damages as of the date when the commissioners acted. on the 2d day of November, 1897. (3) In estimating the defendant's damages, the jury will take into consideration the fact that the east 160 acres of the farm is under lease expiring March 1, 1899, and that the lessee...