Chicago, M. & St. P. Ry. Co. v. Baker

• Decision Date: 19 January 1891
• Court: Missouri Supreme Court
• Parties: CHICAGO, M. & ST. P. RY. CO. v. BAKER et al.

15 S.W. 64

102 Mo. 553

CHICAGO, M. & ST. P. RY. CO. v. BAKER et al.

Supreme Court of Missouri.

January 19, 1891.

EMINENT DOMAIN — COMPENSATION — OBJECTIONS TO ASSESSMENT.

1. In a proceeding by a railroad company to condemn a right of way, the report of the commissioners having been set aside on exception by the land-owner, and the case having gone to trial without any pleadings on his part, he is entitled to full damages for the decreased value of the body of his land taken as a whole, and he is not confined to the government subdivisions described in the company's petition.

2. Though the land is subject to mortgage, and the award by the commissioners is made in favor of the mortgagees, the land-owner can object to the entire assessment, and, on his objection being sustained, it is necessary to make a new award as to all the parties in interest.

3. Though different parcels of the land are subject to separate mortgages, the railroad company cannot complain of a single award in favor of the land-owner, the distribution of the money between the mortgages being a question which does not concern the company.

4. The value of the entire tract, with the railroad location across it, is to be estimated on the supposition that the company will erect and maintain fences and farm crossings as required by statute, and it is error to charge the jury not to consider any advantage arising from the erection of fences and farm crossings by the company.

Appeal from circuit court, Grundy county; G. D. BURGESS, Judge.

Geo. Hall, for appellant. R. A. De Bolt, for respondent.

BLACK, J.

This was a proceeding commenced by the plaintiff corporation to condemn a right of way over seven 40-acre tracts of land owned by defendant Dudley Baker. The defendants Cook and Moberly hold a debt secured by a deed of trust upon part of the land, and defendant Lightner holds a debt secured by a deed of trust upon another part. The commissioners appointed to assess damages made two reports, thus assessing separately the damages to the lands covered by the deeds of trust. These reports, on exceptions thereto filed by Baker, were set aside, and the damages were reassessed by a jury at $341, and the plaintiff appealed.

1. The plaintiff objected to the evidence showing that the pasture land was located on one side of the railroad, and the tillable land on the other side, so that it would be necessary for the defendant to drive his stock back and forth across the railroad, because such damages were special, and were not specially pleaded. When the court set aside the report of the commissioners, the case came on for trial before the jury on the plaintiff's petition. The case was not tried by the jury on the exceptions filed by Baker, but on the plaintiff's petition for the assessment of damages. On that petition the defendant was entitled to full damages. No pleadings were made or required to be made on the part of the defendant. The objection to the evidence was therefore properly overruled.

2. The plaintiff's farm contains 590 acres all in one body, and the road runs diagonally through it, passing over the seven 40-acre tracts described in the plaintiff's petition. The damages to be allowed in cases like this, where the railroad appropriates a part of a body of land, are such as the land-owner suffers to the body of land taken as a whole. The damages are not confined to the small government subdivisions over which the road may pass; and the corporation exercising the right of eminent domain cannot avoid the payment of the damages done to the entire farm by selecting out and describing in its petition the 40-acre tracts through which the road may be located. Railway Co. v. Calkins, 90 Mo. 538, 3 S. W. Rep. 82; Railway Co. v. Story, 96 Mo. 611, 10 S. W. Rep. 203.

3. A further contention is that plaintiff had acquired all the interest of the mortgagees in the land, and, as the mortgage debts remained unpaid, no damages should have been awarded to Baker. Instructions to this effect were asked by plaintiff, which were refused. The proposition seems to be based upon the notion that the commissioners' reports, which in terms allowed damages to the mortgagees, remained undisturbed. This is a misconception of the record. The exceptions to the report were filed by Baker only, it is true; but he had a right to object to the entire assessment of damages made by the commissioners, and he did so object and his objections were sustained. It then became necessary to make an...