Chicago Great Western Railroad Company v. Kemper
| Decision Date | 02 April 1914 |
| Citation | 166 S.W. 291,256 Mo. 279 |
| Parties | CHICAGO GREAT WESTERN RAILROAD COMPANY v. BERNARD P. KEMPER et al.; JOHN HOLTMAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Andrew Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Reversed and remanded (with directions).
J. C Growney for appellant.
(1) Appellant questions the validity of the order entered by Judge Ellison, in awarding a change of venue herein, from the circuit court of Nodaway county to that of Andrew county said order reciting, viz: "And the venue of said court is accordingly, hereby ordered, changed to the said circuit court of Andrew county." Said order is a nullity, and no jurisdiction has been acquired by the latter court of the subject-matter of this suit, and the proceedings had in the Andrew Circuit Court are coram non judice. Stearns v Railroad, 94 Mo. 317; State v. Wear, 145 Mo. 163; R. S. 1909, sec. 1932; Collier v. Wilson, 56 Mo.App. 420; Drainage Dist. v. Campbell, 154 Mo. 151; Railroad v. Young, 96 Mo. 39; 15 Cyc. 810. (2) When it was shown by appellant on the hearing had October 22, 1910, that the profile map and other maps alleged by plaintiff company in its petition, as having been filed August 1, 1910, were not in fact certified and filed as required by law, the court should have dismissed plaintiff's petition. R. S. 1909, sec. 3074; Railroad v. Davis, 197 Mo. 669; Barrett v. Kemp, 91 Iowa 296; St. Louis v. Franks, 9 Mo.App. 579, 78 Mo. 41; 15 Cyc. 813, 815, 817; Gray v. Railroad, 81 Mo. 126; St. Louis v. Koch, 169 Mo. 587; Vail v. Railroad, 21 N. J. L. 442; Railroad v. Norton, 12 Abb. Pr. (N. S.) 317. (3) The court committed error in granting plaintiff's petition and in appointing commissioners without first requiring the plaintiff to establish by competent evidence all the material allegations of its petition, as every one of such were put in issue, on the filing of appellant's suggestions, protests and objections. Bridge Co. v. Stone, 174 Mo. 1; Railroad v. Railroad, 94 Mo. 535; Savannah v. Hancock, 91 Mo. 54; 15 Cyc. 868; Reed v. Railroad, 126 Ill. 48; Railroad v. Robinson, 133 N.Y. 242; State ex rel. v. Shelton, 154 Mo. 682; Emerson v. Railroad, 75 Ill. 176. (4) Without the consent of this appellant and over his protest and objections the plaintiff company had no right, power or authority to condemn and appropriate his grade farm crossing from east to west over and across plaintiff's main line of railroad, and especially so, when the plaintiff company obtained from appellant its original right of way, for its main line through appellant's farm, on condition that such grade farm crossing should be made and maintained for his use and convenience in the future enjoyment of the farm. R. S. 1909, sec. 3145; Quantock v. Railroad, 197 Mo. 93; Stone Co. v. Railroad, 130 N.Y. 152; Powell v. Railroad, 215 Mo. 339. It appearing on the face of the petition that the plaintiff company sought to entirely deprive appellant of any farm crossing whatever, the court should have rejected the petition. Railroad v. Railroad, 94 Mo. 543. (5) From the face of the petition in this cause the court could not pass upon the judicial question and judicially determine that the 70 acres of land sought to be condemned and appropriated was for a public use, or that the tract of land belonging to appellant was necessary, or that the same would be applied to a public use; without evidence first being heard, and a full consideration of the issues involved had and determined. This was not done on the appointment of commissioners herein. Sec. 20, art. 2, Constitution; St. Louis v. Brown, 155 Mo. 545; 15 Cyc. 868. (6) Plaintiff's instruction 1 told the jury that the plaintiff had the right under the law to take and appropriate appellant's 9.33 acres of land, upon paying him just compensation therefor. This, appellant says, was error, as it excluded from the jury a consideration of the depreciation in value of the remaining portion of appellant's farm. The verdict of the jury is in accordance with the above direction as the damages allowed was only for the value of the land taken. Railroad v. Calkins, 90 Mo. 538; Railroad v. Story, 96 Mo. 622; Railroad v. Norcross, 137 Mo. 415. (7) Plaintiff's third instruction, among other things, told the jury that in estimating the damages occasioned appellant, by the condemnation of his 9.33 acres of land described in the first instruction, they should not consider the increased damages to life or limb, nor any damage from smoke or noise from passing trains, nor from ringing the bells or sounding of whistles. Yet they might consider the increased risk of fire from said terminals so far as the same may affect the market value of the land. If the increased risk of fire may be considered as affecting the market value of the remaining part of his farm, then on the same principle the smoke and noise from passing trains and the ringing of bells and sounding of whistles should be considered as affecting the future enjoyment of the farm or its depreciation in value by reason thereof, and in the greater number of jurisdictions the courts do allow compensation for the injury resulting from all these causes, or at least consider such injury in estimating the depreciation in the value of the land. Railroad v. Allen, 41 Ark. 431; Pasadena v. Stimson, 91 Cal. 238; Canal Co. v. Morawetz, 195 Ill. 394; Railroad v. Atterbury, 156 Ill. 281; Wilson v. Railroad, 67 Iowa 509; Railroad v. Connor, 16 Ky. L. Rep. 635; Baker v. Railroad, 183 Mass. 178; Blue Earth County v. Railroad, 28 Minn. 503; Railroad v. Beeson, 36 Neb. 361; In re Railroad, 56 Barb. (N.Y.) 456. (8) The proof offered by appellant and excluded by the court, as to the use made by appellant of his 40 acres of land lying within three-quarters of a mile of his main farm of 120 acres on which he resides was competent and relevant for the jury to consider in estimating appellant's damage. Railroad v. Huncheon, 130 Ind. 529; Ellsworth v. Railroad, 91 Iowa 386; Railroad v. Longworth, 30 Ohio St. 108; Railroad v. Comstock, 36 W.Va. 263; Railroad v. Aubuchon, 199 Mo. 352.
Shinabargar, Blagg & Ellison for respondent.
(1) The filing of the report of the commissioners in the Andrew Circuit Court, the payment of the money awarded appellant into court and the acceptance thereof by the appellant left nothing to litigate except the amount of appellant's damages. Secs. 2362, 2364, R. S. 1909; Railroad v. Beechle, 234 Mo. 481; Railroad v. Aubuchon, 199 Mo. 352; Railroad v. Roberts, 187 Mo. 309; Bennett v. Hall, 184 Mo. 407; State ex rel. v. Fort, 180 Mo. 103; Railroad v. Donovan, 149 Mo. 93; Railroad v. Clark, 119 Mo. 357; Rothan v. Railroad, 113 Mo. 132; Railroad v. McGrew, 113 Mo. 390; Railroad v. Fowler, 113 Mo. 458. By accepting and retaining the $ 1500 damages awarded him by the commissioners appellant is estopped on the general principles of equity from attacking the proceedings by which he got the money he now retains and holds. Marling v. Railroad, 67 Iowa 331; Corwin v. Railroad, 51 Kan. 451; Poole v. Breese, 114 Ill. 594; Paper Co. v. Syracuse, 124 N.Y.S. 317; 2 Lewis on Eminent Domain (3 Ed.), sec. 783. (2) Appellant cannot complain of the order granting a change of venue in this cause: (a) It was in due form. (b) It was made at his request and he is estopped to question it. (c) Even if defective it is not a nullity and objections to it should have been made and exceptions saved before the judge who granted the order. Stearns v. Railroad, 94 Mo. 317; State v. Dodson, 74 Mo. 283; Gibney v. Transit Co., 205 Mo. 717; Cunningham v. Railroad, 165 Mo. 279; State v. Gamble, 109 Mo. 430; Evans v. Town of Trenton, 112 Mo. 390; Wolff v. Ward, 104 Mo. 145; Klotz v. Perteet, 101 Mo. 217. (d) No point can be made on the change of venue in this court for the further reason that no mention of any alleged defects in the order was made in the motion for a new trial filed by appellant. Gibney v. Transit Co., 205 Mo. 717; Wolff v. Ward, 104 Mo. 145. (3) The filing of a profile and other maps under Section 3074 is not a condition precedent to the bringing of a condemnation suit, and hence it is immaterial whether the maps filed August 1, 1910, were properly certified, or whether the maps filed October 28, 1910, were filed in time, or whether any maps were filed at all. Railroad v. Railroad, 168 F. 360, 13 L. R. A. (N. S.) 197; 2 Lewis on Eminent Domain (3 Ed.), p. 921, par. 508; Railroad v. Shepard, 9 Kan. 647; 7 Ency. Pl. & Pr. 542; Railroad v. Abbott, 44 Kan. 170; Water Works Co. v. Bird, 130 N.Y. 249; Bridge Co. v. Oil Co., 35 W.Va. 205. (4) Plaintiff's instruction 1 properly declared the law. It is a counterpart of an instruction given and approved in Bridge Co. v. Stone, 194 Mo. 182. Furthermore it is not open to the objection made by appellant, because instructions given for plaintiff supplement it and fully explain to the jury the correct method of ascertaining the defendant's damages. (5) Plaintiff's instruction 3 properly declared the law, as laid down in: Railroad v. Shoemaker, 160 Mo. 425; Railroad v. Mendonsa, 193 Mo. 518; Railroad v. Pfau, 212 Mo. 398. (6) It was not error for the court to refuse appellant's offer of proof of the use made by him of a forty-acre tract of land three-fourths of a mile from the farm out of which the condemned land was taken. There should have been an offer to show that the two tracts were especially adapted to one use and that they had a peculiar value because of that adaptability in excess of what the two would have been worth on the market as separate tracts. Hoyt v. Railroad, 90 N.W. 724.
This is a condemnation proceeding originating in the circuit court of Nodaway county. The purpose of the condemnation is thus stated in the petition:
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