Missouri Pacific Railway Company v. Roberts
| Decision Date | 15 March 1905 |
| Citation | 86 S.W. 91,187 Mo. 309 |
| Parties | MISSOURI PACIFIC RAILWAY COMPANY, Appellant, v. ROBERTS |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. J. W. Alexander, Judge.
Reversed and remanded.
Elijah Robinson for appellant.
(1) The trial court committed error in permitting the report of the commissioners to be put in evidence and read to the jury. The only question for the determination of the jury was as to the amount of damages that defendant had sustained by reason of the appropriation of the 8.3 acres of land in question; and the admission of the report of the commissioners was in violation of the fundamental principals of the law of evidence. Under our system of jurisprudence every litigant is entitled to have the witnesses against him sworn to testify the whole truth touching their knowledge of the matters in controversy, and he is entitled to cross-examine them. By the admission in evidence of the report of the commissioners, the defendant succeeded in getting before the jury their estimates and opinions as to the matters in controversy without any opportunity whatever on the part of the plaintiff to cross-examine them. 1 Greenl. Ev., sec. 446; 1 Thomp. Trials, sec. 406. That the admission of this evidence was calculated to operate prejudicially to the plaintiff is too clear to be disputed, and therefore, the judgment of the lower court should be reversed for this reason, even if there were no other grounds for reversal. (2) The trial court committed error in giving defendant's instruction 7. The court should not have called the attention of the jury to the damages assessed by the commissioners. It was entirely immaterial, so far as the question of fact to be passed upon by the jury was concerned, what amount of damages had been assessed by the commissioners, but notwithstanding that fact this instruction was given, and was calculated to mislead the jury and to induce them to assess damages at an amount equal to or in excess of the amount that had been assessed by the commissioners. Moreover, said instruction was erroneous in that it told the jury that if they should assess defendant's damages at a sum in excess of $ 7,500, they should allow interest on the excess from the sixteenth day of September, 1901, to the date of the trial. Railroad v Knapp-Stout Co., 160 Mo. 396. Interest is a creature of the statute. Bradley v. Asher, 65 Mo.App. 593. And the statute does not provide for interest in cases of this kind. Sec. 3705, R.S. 1899.
Sandusky & Sandusky for respondent.
(1) There was no error in reading the report of the commissioners to the jury, and respondent was entitled to interest ($ 6.30) on the $ 140. Railroad v McElroy, 161 Mo. 584; Webster v. Railroad, 116 Mo. 114. The instructions fully explained the purpose for which the report was read. (2) There was no error in giving instruction 7 for respondent. It was copied from an instruction in 161 Mo. 584 where it is approved. Instruction 8 guards the jury against being misled in any way by reason of the commissioners' report being before the jury.
Elijah Robinson for appellant in reply.
Counsel for appellant concedes that the opinion in the case of Railroad v. McElroy, 161 Mo. 584, constituted an excuse, if not a justification, for the action of the trial court in admitting in evidence, on the part of the defendant, the report of the commissioners, but, without the slighest intention to be disrespectful to the court, insists that that opinion is not good law and ought not to be followed. No good reason has been or can be assigned for permitting that report to be read to the jury. The reason assigned in the opinion in the McElroy case, that is, that it was necessary that the jury should know what the report of the commissioners was to enable them to calculate the interest on the excess, if their finding should exceed that of the commissioners, is no reason at all. The court should have instructed the jury to find and state in their verdict the amount of damage sustained by defendant by reason of the taking of the land in controversy; and upon such a verdict, the court could have entered a proper judgment. If the jury had found that plaintiff had sustained damage in a sum which was in excess of the amount awarded by the commissioners, the court could have rendered judgment for the amount of the excess, with interest thereon from the date when the plaintiff appropriated the land in question if it was legal to allow interest; while, on the other hand, if the jury had found that the damages amounted to a sum less than the award of the commissioners, the court could have rendered a judgment in favor of plaintiff for the difference.
This is an action under the statute for the condemnation for railroad purposes of eight and three-tenths acres of land, in Jackson county, located about two and a half miles east of the eastern limits of Kansas City, in what is commonly called by the witnesses, the East Bottoms. It consists of a strip of land substantially one hundred feet wide, taken off from the northern side of a tract of fifteen acres held by the defendant in trust for himself and others and the whole tract is practically wedge-shaped, and is bounded by the right of way of the Atchison, Topeka & Santa Fe Railway on the north; by the right-of-way of the Kansas City & Independence Air Line on the south (to the south of which also lie the rights-of-way of the main line of the plaintiff company and of the Chicago & Alton Railway Co.), by substantially the meanderings of Rock Creek on the east, and its edge or point at its western extremity is at the intersection of the rights-of-way of said Atchison, Topeka & Santa Fe and said Kansas City & Independence Air Line and it lies in the northwest quarter of section thirty-two and the northeast quarter of section thirty-one, township fifty, range thirty-two west.
The commissioners assessed the damages for the land to be taken at $ 6,225, and the damages to the land remaining at $ 1,275, aggregating $ 7,500. The plaintiff paid said money into court, filed exceptions to the report, asked a jury trial, and took possession of the land sought to be condemned. The record does not show any ruling on the exceptions, but for the purposes of this case it will be assumed that the court sustained the same.
At the trial before the jury, the abstract of the record and the briefs of counsel seem to indicate that the defendant introduced his testimony first, and the plaintiff introduced its testimony afterwards. The defendant called twelve witnesses, of whom Judge G. L. Chrisman, John A. Kerr, J. D. Cusenberry, R. C. Maxwell, and M. R. Roberts, the defendant, lived in the neighborhood, and E. H. Phelps, John A. Kerr, W. L. Powell, G. J. Clark, H. C. Gilbert, Thomas Stinson, and Erastus Smith, were real estate agents and were familiar with the property, its location, surroundings, value and the uses to which it is adaptable. They testified on direct examination that the part taken was worth from one thousand to fifteen hundred dollars an acre. The defendant testified that he had bought the whole tract for himself and others two or three years previously, at a partition sale, for one hundred and thirty-five dollars an acre, but that in settling with the heirs, he and Judge Chrisman figured this tract at eight hundred dollars an acre. These witnesses on cross-examination were asked if the land could have been sold upon three months' effort for two hundred and fifty or three hundred dollars an acre before the condemnation proceedings were begun, and they all said they thought it could, but would not say how much more it could have been sold for. They all said it had a peculiar value for railroad purposes, because it was the only space available, between the river and the bluffs at that point, for another railroad to enter Kansas City through the East Bottoms. Maxwell owns the land immediately east of the part to be condemned, and he sold five acres of his land for a thousand dollars an acre a short time before the suit was begun, but it had a spring on it which he said was the main reason the purchaser wanted it. The defendant testified that about a year before, Mr. Gallagher bought ten acres, at seven hundred dollars an acre, that lie on the bluff above and in the vicinity of his land, and were on the electric line, and was a beautiful piece of land for residence purposes, and that he built a house on it.
Touching the damage to the remaining land, Clark testified that he thought it would be damaged one thousand dollars. Only one other witness for the defendant, to-wit, Gilbert, was asked as to such damage, and he said that he could not see that it was damaged to any great extent, but that it might be damaged some. The defendant, however, claims that owing to the overhead construction of the Santa Fe road, at its intersection with the Air Line, at the western edge of this land, no other road could be built at that point, and hence that the remaining land is necessarily damaged, and that the land condemned is the key to the location; and further that the land remaining is rendered more inaccessible by the construction of a railroad on the portion sought to be condemned.
The plaintiff called ten witnesses, of whom Russell Harriman, who is an attorney residing at Booneville, and had had experience in securing railroad rights-of-way, expressed no opinion as to the value of the land, and the same is true as to C. E Carson, who is appellant's superintendent of terminals in Kansas City. Mr. Harriman said, however, that there is no difference in the facilities for getting water from the spring on the Maxwell tract, to the part of the land remaining, from those that existed before the...
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