State v. Dearing

• Citation: 73 S.W. 485,173 Mo. 492
• Court: United States State Supreme Court of Missouri
• Decision Date: 20 March 1903
• Parties: STATE ex rel. MISSISSIPPI RIVER & B. T. RY. v. DEARING, Judge.

73 S.W. 485

173 Mo. 492

STATE ex rel. MISSISSIPPI RIVER & B. T. RY. v. DEARING, Judge.

Supreme Court of Missouri.

March 20, 1903.

RAILROADS—EMINENT DOMAIN — CROSSING—COMMISSIONERS—DETERMINATION—MANNER AND POINT OF CROSSING—CONCLUSIVENESS —JURISDICTION OF COURT—MANDAMUS.

1. Rev. St. 1899, § 1035, provides that every railroad shall have power to cross any other railroad, and that, if the roads are not able to agree on the compensation for, or point or manner of, crossing, the matter shall be determined by commissioners appointed as provided in section 1268, and the latter section provides that the report of the commissioners may be reviewed by the court on written exceptions, and that the court shall "make such an order therein as right and justice may require, and may order a new appraisement on good cause shown." Held, that the determination of the commissioners as to the point and manner of crossing is not conclusive, but is open to review by the court.

2. Mandamus will lie to compel the court to hear evidence on exceptions to the commissioners' report as to the manner and point of crossing.

In Banc.

Mandamus by the state, on the relation of the Mississippi River & Bonne Terre Railway, to compel Frank R. Dearing, as judge of the circuit court of Jefferson county and of the Twenty-First Judicial Circuit, to hear evidence on exceptions by relator to the report of commissioners appointed in proceedings by the Southern Missouri Railway Company wherein it sought to condemn a right of way over relator's railroad. Peremptory writ granted.

This is an original proceeding in this court to obtain a peremptory writ of mandamus directing Judge Dearing, the judge of the Twenty-First Judicial Circuit of this state, to set aside an order made by him, as judge of the circuit court of Jefferson county, at the May term of said court for the year 1902, and on the 16th day of June, 1902, striking out the exceptions of the relator, the Mississippi River & Bonne Terre Railway Company, filed in certain condemnation proceedings by the Southern Missouri Railway Company, wherein said last-mentioned company sought and seeks to condemn a right of way and crossing over what is known as the "Crawley Line" or spur of the Bonne Terre Railway, and also a crossing over its main line; also to condemn 1 1/10 acres of ground on the west side of and adjoining the right of way of the Bonne Terre Railway, which it is alleged it purchased for the purpose of enabling it to replace a temporary bridge at Flat river.

These condemnation suits were commenced in the circuit court of St. Francois county at its May term, 1901. An answer was filed putting in issue the allegations of the petitions, and averring that the proposed crossings on the Crawley line and main line were near the foot of steep grades, which were approached by abrupt curvatures, and that, if these crossings were permitted to be made at grade, it would subject the employés of both roads and their passengers to constant risk of injury.

The answer also alleged that the bridge of the Bonne Terre Road over Flat river on its main line, near the south end of which the Southern Missouri Road proposes to cross, is a temporary structure which it is its purpose to replace with a permanent bridge constructed at a different grade, which purpose will be defeated by the construction of the crossing as contemplated by the Southern Missouri, and that the 1 1/10 acres of land, all of which the Southern Missouri seeks to condemn and occupy, was purchased solely for the purpose of enabling the Bonne Terre Road to reconstruct its bridge over Flat river, and without such strip it will be unable to carry out such purpose.

When the cause came on for hearing for the appointment of commissioners, the circuit court, it would seem, declined to hear any evidence at that time, except that which tended to prove that said plaintiff had made an effort to agree with said defendant therein as to the point and manner of crossing, and as to the connections to be made and compensation to be paid, holding that the other questions should be determined when the report of the commissioners had been filed. Three commissioners were appointed to ascertain and determine in the two crossing cases "the amount of compensation to be paid the defendant railway company to cross its said railroad herein before described, and also to ascertain the points and manner of such crossing and connections with defendant's railroad in the petition therein prayed to be appropriated and used as crossings as aforesaid," and, in respect to the 1 1/10 acres of ground, "to assess the damages which the owner may sustain by reason of the appropriation of the property sought in the petition [therein] to be appropriated and condemned." The commissioners filed three reports, one in each of the original cases, in which two of the commissioners joined, and the third commissioner filed a separate and dissenting report.

As to the crossing on the Crawley line, the majority of the commissioners fixed the point of crossing on the line of the survey located and fixed by the Missouri Southern by its profile map of its route, and adopted by it over the said Crawley line, at the grade fixed by said Missouri Southern, and assessed the damages at $500. As to the crossing of the main line, the majority also fixed the point of crossing of the Bonne Terre Road on the line of survey located and fixed by the profile map of its route filed by the Missouri Southern, and adopted and filed by it in the clerk's office, and on the grade fixed by its said survey and location as evidenced by its profile map, and on the then grade of the Bonne Terre's main line, and assessed the damages at $2,500.

As to the 1 1/10 acres, the majority of the commissioners also condemned said parcel, being a strip 50 feet wide, by specific metes and bounds, and containing 1 1/10 acres, and assessed the damages at $100, the said strip including also switches and side tracks thereon, unless removed by defendant.

The third commissioner reported that the commissioners heard a number of witnesses as to the point of crossing, among others, all the railroad commissioners of the state, and two former commissioners, and other railroad men of experience, and locomotive engineers, who testified that to establish the said crossings at grade would be to hazard the lives of the passengers and employés traveling on both of said lines of railway; that, in his opinion, the great weight of evidence was in favor of an overhead crossing, and he therefore found in favor of such crossings, and that to make the crossings at the places designated in the survey of the Missouri Southern would materially interfere with the uses to which the Bonne Terre Road was authorized to put its road. He further reported that one of the commissioners, who was a practicing lawyer, maintained that neither under the laws of the state nor the instructions of the court were the commissioners authorized to make other than a grade crossing, and had no authority to change the location fixed by the profile map in any respect whatever.

Within the time allowed by law, the Bonne Terre Company filed its exceptions to the said several reports. The venue of the cause was changed in November, 1901, to the circuit court of Jefferson county. On January 18, 1902, the Missouri Southern filed its motion to strike out these exceptions, and on June 16, 1902, the circuit court of Jefferson county sustained the motion to strike out the exceptions, save and except as to the inadequacy of the damages assessed, and, upon the suggestion of the Bonne Terre Road that it would make application for a writ of mandamus to require said court to hear said exceptions, postponed the hearing of the question of damages until this court had passed upon such application. Thereupon an application for this writ was made at the June term, 1902, and just prior to the adjournment of this court, and an alternative writ was awarded, to which Judge Dearing filed his return. The questions presented arise on the pleadings thus filed.

Without reproducing the exceptions in full, it is sufficient to state that the issue raised by them was tersely stated by Judge Dearing when he sustained the motion to strike them out. He says: "The defendant company filed its exceptions to the report of the commissioners. It filed its exceptions to the amount of damages awarded by the commissioners as well as to the point selected and the manner of crossing." "The plaintiff company then filed its motion to strike out all that portion of the exceptions filed by the defendant company which referred to the point and manner of crossing. It is contended by plaintiff that there is no appeal allowed the defendant company from the finding or order of the commissioners in regard to the point and the manner in which the plaintiff company shall cross the defendant company's right of way and its tracks. It is insisted by the defendant company that the right of appeal does lie to the point and manner of crossing, as well as the amount of damages awarded," and he reached the conclusion, after a consideration of the statute law on this subject in this state, that, even if he had heard evidence and reached the conclusion that the commissioners had decided different from what he would, there was no express or implied statute in Missouri authorizing him to substitute his opinion in place of theirs, whereby he might have fixed the point and manner of crossing; in a word, that he was not authorized to hear evidence tending to show that the commissioners had acted unwisely in fixing the point and manner of crossing, but that the commissioners' report was final, and not subject to review by the circuit court.

Huff & Sleeth, R. A. Anthony, J. F. Green, and Martin L. Clardy, for relator. F. M. Trissal, Smith & Anthony, and Byrnes & Bean, for respondent.

GANTT, J. (after stating the facts).

The very...