St. Louis, Keokuk and Northwestern Railroad Company v. The Knapp-Stout & Co. Company

• Decision Date: 26 February 1901
• Parties: ST. LOUIS, KEOKUK AND NORTHWESTERN RAILROAD COMPANY v. THE KNAPP-STOUT & CO. COMPANY, Appellant
• Court: Missouri Supreme Court

61 S.W. 300

160 Mo. 396

ST. LOUIS, KEOKUK AND NORTHWESTERN RAILROAD COMPANY v. THE KNAPP-STOUT & CO. COMPANY, Appellant

Supreme Court of Missouri, Second Division

February 26, 1901

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

Warwick Hough, Clinton Rowell, J. H. Zumbalen and John H. Douglass Jr., for appellant.

(1) The court improperly allowed the appellee to file its second amended petition, giving crossings to the defendant at some future date, and should have sustained the appellant's motion to strike out the clause designated therein. Plaintiff's instruction numbered four, in so far as it covered the same question, was clearly erroneous. Railroad v. Clark, 121 Mo. 197. (2) Instructions for plaintiff are argumentative, assume facts as proven and are comments upon the testimony. Railroad v. Union Stock Yards, 120 Mo. 541; Couch v. Gentry, 113 Mo 248. (3) Instruction numbered five, which puts the burden upon the defendant to show damages by preponderance of evidence, is erroneous. Railroad v. Cicero, 154 Ill. 656; Railroad v. Naperville, 166 Ill. 87; Bennett v. Woody, 137 Mo. 377. (4) Defendant's instructions numbered one and two, which were refused by the court, in reference to damages for readjustment, should have been given. Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 284; Sedgwick on Damages (8 Ed.), sec. 1080; Knoch v. Railroad, 38 L. J., C. P. 78; Cameron v. Railroad, 16 C. B. (N. S.) 446; Jubb v. Dock Co., 9 Ad. and El. (N. S.) 443; White v. Commissioners, 22 L. T. R. (N. S.) 591; Patterson v. Boston, 23 Pick. 425; Railroad v. Weiden, 70 Mich. 390; Railroad v. Piel, 87 Ky. 267; Railroad v. Getz, 113 Pa. St. 214; Railroad v. Eby, 107 Pa. St. 166; Railroad v. Capps, 67 Ill. 667; Railroad v. Hock, 118 Ill. 589; Railroad v. Schneider, 127 Ill. 147; St. Louis v. Brown, 56 S.W. 302. (5) Defendant's instruction numbered three, in reference to the right to cross plaintiff's tracks with Merchants Bridge & Terminal Railway Co. switches, should have been given. Railroad v. Clark, 121 Mo. 169. (6) The question raised by defendant's instruction numbered four, refused in reference to damages for increased expense of conducting its business, should have been given. Constitution 1875, art. 2, sec. 21; R. S. 1889, secs. 2734, 2736; Sedgwick on Damages (8 Ed.), secs. 1109, 1106, 1108, 1114, 1080; Bridge Co. v. Schaubacher, 57 Mo. 582; Knock v. Railroad, 38 L. J., C. P. 78; Cameron v. Railroad, 16 C. B. (U.S.) 446; Jubb v. Dock Co., 9 Ad. and El. (N. S.) 443; White v. Commissioners, 22 L. T. R. (N. S.) 591; Patterson v. Boston, 20 Pick. 159, 23 Pick. 425; Penney v. Commonwealth (Mass.), 53 N.E. 865; Railroad v. Weiden, 70 Mich. 390; Commissioners v. Moesta, 91 Mich. 149; Railroad v. Piel, 87 Ky. 267; Railroad v. Getz, 113 Pa. St. 214; Railroad v. Eby, 107 Pa. St. 166; Railroad v. Capps, 67 Ill. 667; 72 Ill. 188; Railroad v. Hock, 118 Ill. 589; Railroad v. Schneider, 127 Ill. 147; Railroad v. Naperville, 166 Ill. 87; Railroad v. Chicago, 151 Ill. 359; Railroad v. Union Depot Co., 125 Mo. 95; Railroad v. Railroad, 100 Ill. 21; Railroad v. Railroad, 105 Ill. 119. (7) The damages awarded in this case are grossly inadequate.

J. H. Drabelle and E. S. Robert for respondent.

(1) The court properly allowed the second amended petition to be filed. Railroad v. Clark, 121 Mo. 169. (2) Appellant's instructions have all been approved by this court, except the one on the burden of proof, in the case of Railroad v. Union Stock Yards, 120 Mo. 541. The instruction numbered 5, putting the burden of showing damages on the defendant, is correct. Lewis on Eminent Domain, sec. 426; Railroad v. North, 31 Mo.App. 349; Railroad v. Donivan, 149 Mo. 101. (3) The rule of damages in this State is the difference between the fair market value of the whole property before and its value after the appropriation in view of the uses to which the land condemned could thereafter be applied. Lee v. Railroad, 53 Mo. 178; Railroad v. Ridge, 57 Mo. 599; Railroad v. Waldo, 70 Mo. 629; Railroad v. Calkins, 90 Mo. 538; Railroad v. Story, 96 Mo. 611; Railroad v. Baker, 102 Mo. 553; Railroad v. McGrew, 104 Mo. 282; Railroad v. Porter, 112 Mo. 361; Springfield v. Smook, 68 Mo. 394. (4) Defendant's instruction numbered 3, with reference to the right to cross plaintiff's tracks with Merchants Bridge tracks, should not have been given, as an ordinance is necessary to make a connection with the Merchants Bridge tracks. (5) The damages are excessive. The defendant's property was brought into the market by the building of the railroad through it, and its value enhanced. (6) The defendant asked twelve instructions. The refusal to give them could be justified on account of their number. Flynn v. Railroad, 43 Mo.App. 424; Renshaw v. Insurance Co., 33 Mo.App. 394.

Jno. H. Drabelle and E. S. Robert for appellant on cross-appeal.

(1) If the condemning company pays the commissioners' award into court, and takes possession of the property, and there is a new assessment by a jury, and an increased award, the company must pay legal interest on the excess. Railroad v. Fowler, 113 Mo. 475; Railroad v. Clark, 119 Mo. 373; Railroad v. Clark, 121 Mo. 169; Railroad v. Eubanks, 130 Mo. 274; Railroad v. Greeley, 23 N.H. 237; Railroad v. Shattuck, 23 N.H. 269; West v. Railroad, 56 Wis. 318. (2) Where the amount of the commissioners' award has been deposited by the condemning company in court for the use of the owner, and the same is taken down by the owner, if the award is decreased on the trial before the jury, the company is entitled to interest on the amount of the diminution. 10 Am. and Eng. Ency. of Law (2 Ed.), p. 1188; Randolph on Eminent Domain, sec. 280; Watson v. Railroad, 57 Wis. 332; Railroad v. Fowler, supra; Railroad v. Clark, supra; Railroad v. Eubanks, supra. (3) But, aside from the above precedents, the general principles of the law regarding the allowance of interest support the allowance in this case. Thus, when one receives an advantage or benefit from the use of the money of another, he is chargeable with interest. 11 Am. and Eng. Ency. of Law, p. 395; Lewis v. Bradford, 8 Ala. 632; Miller v. Bank, 8 Whar. (Pa.) 503; Sims v. Willing, 8 S. & R. (Pa.) 103; Succession of Mann, 4 La. Ann. 42; Curtis v. Adkins, 1 Houst. (Del.) 382; s. c., 68 Am. Dec. 422; Mattingly v. Boyd, 20 How. (U.S.) 128; Smith v. Bank, 60 Miss. 69; Blodgett v. Gardiner, 45 Maine, 542; Candee v. Webster, 9 Ohio St. 452. (4) Another principle is that whenever money has been received by a person which, ex aequo et bono, he ought to refund, interest follows as a matter of course. 11 Am. and Eng. Ency. of Law (1 Ed), p. 395; Barr v. Hasseldon, 10 Rich. (S. C.) 53; Rapelje v. Emery, 1 Dall. 349; Abbott v. Wilmot, 22 Vt. 437; Close v. Fields, 13 Texas, 623; Wood v. Robbins, 11 Mass. 504; Bank v. Harris, 118 Mass. 147.

Warwick Hough, Clinton Rowell, Joseph H. Zumbalen and John H.Douglass, Jr., for respondent on cross-appeal.

(1) (a) The railway company on principle is not chargeable with interest on the excess of the final award over the commissioners' award, and this court, on full consideration, will not so hold. Railroad v. Fowler, 113 Mo. 458; Railroad v. Clark, 119 Mo. 357; Snyder v. Cowan, 120 Mo. 389; Railroad v. Eubanks, 130 Mo. 270. (b) But even if it should be held that the railway company must pay interest on the increase in the award, it by no means follows that the landowner must pay interest on the amount to be deducted, as claimed in this case. Railroad v. Fowler, 113 Mo. 458; Railroad v. Clark, 119 Mo. 357; Snyder v. Cowan, 120 Mo. 389; Railroad v. Eubanks, 130 Mo. 270; In re Railroad, 44 Hun, 117. (2) (a) Interest is purely a creature of statute, and can be recovered only in those cases in which the statute provides for it. 2 Am. and Eng. Ency. of Law (1 Ed.), p. 379; Ord on Usury, 31; Perley on Interest, 23; In re Gossman, L. R. 17 Ch. Div. 771; Railroad v. Craig, 72 Ill. 148; Chicago v. Allcock, 86 Ill. 384; Railroad v. Conway, 8 Colo. 1; Cherry v. Mann, Cooke (Tenn.), 268; Caruthers v. Andrews, 2 Caldwell (Tenn.), 381; Close v. Fields, 2 Tex. 232; Lewis v. Paschal, 37 Tex. 315; Frazer v. Boss, 66 Ind. 1; Hamer v. Kirkwood, 25 Miss. 95; Warren Co. v. Klein, 51 Miss. 807; Clay Co. v. Supervisors, 64 Miss. 534; Klages v. Terminal Co., 160 Pa. St. 388; In re Bridge Co., 187 N.Y. 95; Kenny v. Railroad, 63 Mo. 99; State ex rel. v. Harrington, 44 Mo.App. 297; Coquard v. Prendergast, 47 Mo.App. 243; R. S. 1899, sec. 4150. (b) In Missouri there is no statute authorizing the recovery of interest in such a case. R. S. 1899, secs. 3705, 3707, 2869, 225.

OPINION

GANTT, J.

This is an appeal in a condemnation proceeding by the plaintiff, a railway company, to obtain a right of way over certain real estate in the city of St. Louis, belonging to the Knapp-Stout & Co. Company. The jury awarded the Knapp-Stout & Co. Company $ 21,500, and from the judgment on said verdict said last named company has appealed. The original petition was filed on the twenty-second day of November, 1890. Commissioners were appointed, who filed their report December 22, 1891, awarding to the Knapp-Stout & Co. Company $ 44,000, as damages for the appropriation of the land described in the petition for a right of way.

Exceptions were filed to the report, but the $ 44,000 was paid into court by the plaintiff railroad company and possession of the route taken by said company and its track constructed thereon. The exceptions were afterward sustained on March 11 1892. On the fourteenth of October, 1895, an amended petition was filed, substantially the same as the original except it included a stipulation in reference to the manner in which the railroad company would build its road over ...