Cape Girardeau & C. R. Co. v. Bleechle

• Decision Date: 23 May 1911
• Citation: 234 Mo. 471,137 S.W. 974
• Parties: CAPE GIRARDEAU & C. R. CO. v. BLEECHLE.
• Court: Missouri Supreme Court

137 S.W. 974

234 Mo. 471

CAPE GIRARDEAU & C. R. CO. v. BLEECHLE.

Supreme Court of Missouri, Division No. 2.

May 23, 1911.

1. EVIDENCE (§ 142)—ADMISSIBILITY.

In proceedings to condemn land for a railroad right of way, the testimony of an owner of land in the neighborhood, as to the similarity of his land to the land sought to be taken, and as to the availability of his land and its value for residence lots and the injury thereto by the building of a railroad through the same a few years before, was inadmissible on the issue of damages.

2. EMINENT DOMAIN (§ 239)—EVIDENCE—INSTRUCTIONS.

Where, in proceedings to condemn land for a railroad right of way, witnesses testified that the railroad had added to the value of defendant's land for building purposes and for town lot purposes, and the evidence showed that the

railroad had a regular stopping place on a public road which ran along defendant's land, which was the only place for a permanent railroad station, a charge directing the jury to consider special benefits, if any, to defendant's land in estimating the damages to be awarded was proper.

3. EMINENT DOMAIN (§§ 109, 110)—TAKING OF LAND FOR RAILROAD PURPOSES—DAMAGES.

Where, in proceedings to condemn land for a railroad right of way, there was evidence of peculiar danger to defendant's property by reason of the risks of injury to persons or stock by reason of the construction and operation of a railroad, it was proper for the jury to consider the same as affecting the present value of the land, but where there was no testimony of any peculiar danger of that kind, other than that incidental to any land through which a railroad may run, the jury could not allow damages for such risks, it being presumed that the railroad will be operated according to law which makes provision for recovery for damages caused by the negligent operation of railroads.

4. EMINENT DOMAIN (§ 239)—INSTRUCTIONS— REQUESTS—NECESSITY.

Where, in proceedings to condemn land for a railroad right of way, the court charged that the jury could not allow any damages because of the liability, if any, to persons or stock being injured or killed by reason of the construction and operation of a railroad, defendant, desiring to have the jury take such risks into consideration in fixing the present value of the land, must request an instruction to that effect.

5. EMINENT DOMAIN (§ 262)—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

Where, in proceedings to condemn land for a railroad right of way, there was no testimony to show that there was any peculiar danger to defendant's land because of liability of injury to persons or stock by reason of the construction and operation of a railroad, other than that incidental to any land through which the railroad might run, the error, if any, in a charge that the jury could not allow any damages because the liability, if any, to persons or stock being injured or killed by the construction and operation of the railroad, was harmless.

6. EMINENT DOMAIN (§ 163)—PAYMENT—SUFFICIENCY.

A payment into court of the award of the commissioners in eminent domain proceedings pursuant to Rev. St. 1909, § 2362, satisfies Const. art. 2, § 21, providing that property shall not be taken without just compensation.

7. EMINENT DOMAIN (§ 239) — AWARD OF DAMAGES BY COMMISSIONERS—EXCEPTIONS.

Under Rev. St. 1909, § 2364, providing that on the filing of exceptions by either party in eminent domain proceedings to the damages awarded by commissioners, the court may order a new appraisement by a jury as in ordinary cases of inquiry of damages, the court must sustain exceptions filed by either party and order an inquiry of damages by a jury.

8. EMINENT DOMAIN (§ 239)—TRIAL BY JURY —VACATING AWARD OF COMMISSIONERS.

The court ordering a new appraisement by a jury in eminent domain proceedings, as required by Rev. St. 1909, § 2364, vacates thereby the award of the commissioners, and the case is tried de novo under supervision of the court.

9. EMINENT DOMAIN (§ 239)—RIGHT TO OPEN AND CLOSE.

Under the rule that the party is entitled to open and close, who will suffer defeat, if no evidence is given on either side, a defendant in proceedings to condemn land is entitled to open and close on the trial before the jury ordered by the court, as required by Rev. St. 1909, § 2364, and it is immaterial which party filed exceptions to the award of commissioners.

10. APPEAL AND ERROR (§ 1046)—HARMLESS ERROR — RIGHT TO OPEN AND CLOSE—DENIAL OF RIGHT.

A denial to a party of the right to open and close is reversible error, only when injury or prejudice resulted therefrom.

11. APPEAL AND ERROR (§ 969)—RULING ON RIGHT TO OPEN AND CLOSE—ABUSE OF DISCRETION.

Rulings on the right to open and close rest in the discretion of the trial court, and its ruling will not be disturbed unless the discretion has been abused to the injury of the party complaining.

12. EMINENT DOMAIN (§ 263) — HARMLESS ERROR—ERRONEOUS RULING ON RIGHT TO OPEN AND CLOSE.

Where, in proceedings to condemn land, both parties introduced evidence on the question of damages, the witnesses of plaintiff first placed on the stand fixing the damages at from $50 to $800, while the witnesses for defendant subsequently called fixing the damages at from $1,400 to $1,500, and the jury fixed the damages at $740, the error in denying to defendant the right to open and close was harmless, and must be disregarded under Rev. St. 1909, § 1850, forbidding the reversal of a case for any error not affecting the substantial rights of the party complaining.

Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

Petition by the Cape Girardeau & Chester Railroad Company to condemn a right of way through the land of Louis Bleechle. From a judgment awarding damages, defendant appeals. Affirmed.

The plaintiff filed a petition in ordinary form, on November 8, 1905, to condemn a right of way through defendant's farm in Perry county. Commissioners were duly appointed by the court to view the land, and assessed defendant's damages at $1,415. This sum was paid into court by the plaintiff, and was received by the defendant, and plaintiff took possession of the land for its railroad. Afterwards plaintiff filed written exceptions to the report of the commissioners, alleging that the amount awarded was excessive and demanding a trial by jury. Said trial was had, resulting in a verdict assessing the damages at $740. Defendant appeals.

The following instructions given for plaintiff are objected to:

"No. 2b. In estimating the damages in this case the jury should take into consideration the actual value of the strip of land sought to be condemned by plaintiff, and benefits, if any, and the disadvantages, if any, resulting to the remainder of the lands of defendant not taken by plaintiff, from the appropriation by plaintiff of the strip of land in question for the purpose of its said railroad. The benefits to be considered and allowed by the jury are the direct and peculiar benefits, if any, which result to the remainder of the lands of defendant not appropriated by plaintiff, not the general benefits which defendant derives, in common with other landowners in the vicinity, from the building of the road. Neither should the jury, in estimating the damages in this case, take into consideration such inconveniences and disadvantages to the defendant as are consequences of the lawful and proper use of the railroad, in so far as the same are common to the other landowners in the neighborhood, portions of whose land are not taken."

"No. 8. The court instructs the jury that they are not authorized to allow any damages because of the liability, if any, to persons or any stock being injured or killed by reason of the construction and operation of plaintiff's railroad."

The following instruction offered by defendant was refused: "No. 5. As there is no evidence in this case proving, or tending to prove, that the lands of defendant derive any peculiar or special benefit from the location and building of plaintiff's railroad thereover, other than the general benefit common to other lands in the neighborhood not taken by plaintiff, the jury will not be authorized, in estimating the damages in this case, to take into consideration, in diminution of defendant's damages, any benefits to his land."

Defendant filed no exceptions to the report of the commissioners. When the cause came on for trial before the jury the defendant demanded the right to open and close, both as to the introduction of testimony and argument of counsel, which was denied.

The assignments of error filed in this court will be considered in their order.

John V. Noell, for appellant. Edw. A. Rozier, for respondent.

FERRISS, J. (after stating the facts as above).

1. Defendant offered to prove by a witness, one Christopher Popp, that the witness owned land similar to defendant's in the same general neighborhood, and that its availability and value for residence lots had been injured by the building of a railroad through the same a few years previously. Defendant also offered to prove similar facts on cross-examination of one of plaintiff's witnesses, S. S. Tucker The court sustained objections to this testimony, and in this the court was clearly right. The witnesses were giving their opinions as to the damages to defendant's land. It was not competent for them to relate facts concerning property situated elsewhere. It does not follow that similar results would ensue in the present situation.

2. It is claimed that plaintiff's expert witnesses Layton, Anderson, and Hazelbud did not properly qualify as witnesses on value. The transcript of the evidence shows in each case the witness stated that he was acquainted with defendant's land, knew its value, and was otherwise qualified.

3. The third and fourth assignments of error may be considered together. The defendant complains of instruction No. 2b, given for plaintiff, directing the jury to take...