Chicago, M. & St. P. Ry. Co. v. Baker
| Decision Date | 19 January 1891 |
| Citation | 15 S.W. 64,102 Mo. 553 |
| Parties | The Chicago, Milwaukee & St. Paul Railway Company, Appellant, v. Baker et al |
| Court | Missouri Supreme Court |
Appeal from Grundy Circuit Court. -- Hon. G. D. Burgess, Judge.
Reversed and remanded.
George Hall for appellant.
(1) The plaintiff is required by law to fence its road, and erect farm crossings for the benefits of defendants. Berry v Railroad, 65 Mo. 172; Peddicord v. Railroad, 85 Mo. 160. And the same must be taken into consideration in estimating damages and benefits. R. S. 1889, sec. 2611; Railroad v. Waldron, 11 Minn. 515; 88 Am. Dec. 100 note; Railroad v. Grough, 29 Kan. 94; Butt County v. Boydston, 64 Col. 110; Mills on Em. Dom secs. 151, 152, 153; Commissioners v. O'Sullivan, 17 Kansas, 58; Railroad v. Pardow, 5 Rich. 428; Symonds v. Cincinnati, 45 Am. Dec. 529, and note; Whitman's Ex'rs v. Railroad, 33 Am. Dec. 411; Railroad v. Wachter, 5 Am. State Rep. 532; 3 Suth. Damages, pp. 444, 445; Railroad v. Abell, 18 Mo.App. 632. (2) In assessing damages done to defendant's land by the appropriation of the strip for plaintiff's road, the advantages or benefits which are peculiar to that tract of land as well as the damages or disadvantages must be taken into consideration, and, where the benefits equal the damages, defendant is not entitled to any damages. Crowles v. Smith, 78 Mo. 32; Railroad v. Ridge, 57 Mo. 599; Railroad v. Waldo, 70 Mo. 629; Jackson County v. Waldo, 85 Mo. 637; Welsh v. Railroad, 19 Mo.App. 127. (3) The difference in the value of defendant's land before taking any part of it for a right of way for plaintiff's road, and the value of the part left, after the completion of the road as affected by it, is the fair measure of damages to defendants resulting from the appropriation. Welsh v. Railroad, 19 Mo.App. 127; Railroad v. Tyler, 36 Ark. 205; Railroad v. Allen, 41 Ark. 431; Railroad v. Kirby, 44 Ark. 103; Everhart v. Railroad, 70 Ill. 347; Bloomington v. Miller, 84 Ill. 621; Dupois v. Railroad, 115 Ill. 97; Sidener v. Essex, 22 Ind. 201; Rennick v. Railroad, 49 Iowa 664; Ham v. Railroad, 61 Iowa 716; Dwight v. Commissioners, 11 Cush. 201; Railroad v. Henry, 8 Nev. 165; Railroad v. Braham, 79 Pa. St. 447; Cummings v. Williamsport, 84 Pa. St. 473; Railroad v. Bertly, 88 Pa. St. 178; Railroad v. Getz, 113 Pa. St. 214. (4) The defendants holding the deeds of trust were owners with Baker of the land sought to be condemned. The term "owner," as used in section 2734, Revised Statutes, 1889, includes every person having an interest in the real estate, capable of being damnified by the location and construction of plaintiff's railroad over the same. Sherwood v. City, 58 Am. Rep. 414; Parks v. City, 15 Pick. 198, 203; Ellis v. Welch, 6 Mass. 246; Gimbel v. Stolte, 59 Ind. 446; Railroad v. Thompson, 10 Md. 76; White v. Rittenmyer, 30 Iowa 268; Chateau v. Thompson, 2 Ohio St. 144. (5) The owner of a limited interest in property taken for public use is entitled to compensation to the extent of that interest. Ex parte Jennings, 16 Amer. Dec. 447; Sherwood v. City, 109 Ind. 411; 58 Am. Rep. 414; Severin v. Cate, 38 Iowa 463; R. S. of 1889, sec. 2734; Biddle v. Hussman, 23 Mo. 597; 3 Sutherland on Damages, p. 447; Parks v. Boston, 15 Pick. 198; Lawrence v. Boston, 119 Mass. 126; Breed v. Railroad, 5 Gray, 470; Platt v. Bright, 29 N.J.Eq. 128. (6) Defendant Baker and the parties holding the deeds of trust on the different parts of the land sought to be condemned, owning separate interests therein, and plaintiff having acquired the interests of the parties holding the deeds of trust, Baker was not entitled to the damages done to the interest of the owners of the deeds of trust, and the court erred in refusing to give plaintiff's sixth instruction; for the division of ownership cannot operate to subject plaintiff to the payment of greater damages than if Baker had a perfect title to the land. 3 Sutherland on Damages, 447; Burt v. Wigglesworth, 117 Mass. 302; Burt v. Ins. Co., 115 Mass. 1; Edmunds v. Boston, 108 Mass. 535; Mills on Em. Dom., sec. 65. (7) The defendants holding the deeds of trust on the different parts of Baker's lands are the owners and have the legal title to the parts included in the respective deeds; the notes for which the deeds were given to secure being due they could maintain ejectment therefor. Walcott v. McKinney, 10 Mo. 229; Meyer v. Campbell, 12 Mo. 603; Sutton v. Mason, 38 Mo. 129; Hubbell v. Vaughn, 42 Mo. 138; Reddick v. Gressmon, 49 Mo. 389. The damages assessed is due and payable to the parties holding the deeds of trust, and not to Bakers, and they were not entitled to judgments for the same. Mills on Em. Dom., sec. 74; Bank v. Roberts, 44 N.Y. 192; Aston v. Hoyt, 5 Wend. 603. (8) Owing to the several conflicting interests of different parties as stated in the petition appearing of record in the lands in possession of defendants, the Bakers, the commissioners filed separate reports in each case and made assessments of damages, defendants filed but one exception, the court set aside all the reports, and, in the assessment by the jury, there was but one finding and one assessment and that to the Bakers alone, when there should have been separate assessments and findings as to each by the jury. R. S. 1889, sec. 2736; Moony v. Kennett, 19 Mo. 551; Pitts v. Fagote, 41 Mo. 405; State v. Dulle, 45 Mo. 269; St. Louis v. Allen, 53 Mo. 44; Bricker v. Railroad, 83 Mo. 391. (9) There were no pleadings in this case to warrant the introduction of the evidence offered by defendants as to the damages done to the land not taken; the same was not alleged and could not be proven, and the court erred in overruling plaintiff's objection to the introduction of defendants' testimony and in admitting the same, in that behalf. State to use v. Blackman, 51 Mo. 319; Burkholder v. Rudrow, 19 Mo.App. 60; Smith v. McCranthy, 11 Mo. 517; Givens v. Van Studdiford, 86 Mo. 149.
R. A. DeBolt for respondents.
(1) The law of this state requires that all railroads located therein shall erect and maintain lawful fences on the sides of its road; and erect and maintain all necessary farm crossings. R. S. 1889, sec. 2611. Where, as in this state, the statute requires railroads to fence and erect crossings, the advantages or costs of such fences and crossings cannot be taken into consideration in estimating the damages to which the defendant may be entitled for the right of way, or the location of the plaintiff's road over his land. Railroad v. Abell, 18 Mo.App. 632; Jones v. Railroad, 68 Ill. 380-382; Railroad v. Waldron, 11 Minn. 515; 88 Am. Dec. 100, 103, 104; Mills on Em. Dom., sec. 212. A different rule perhaps prevails in states where there is no statute requiring railroads to fence their roads. Symonds v. Cincinnati, 45 Am. Dec., note on pp. 535, 536; Railroad v. Waldron, 88 Am. Dec. 100, 103, 104. (2) The damages to be considered in right-of-way cases are such as are occasioned to the whole tract of land by reason of the road running through it, and the benefits are such as the land derives from the location of the road through it as are not common to the other lands in the same neighborhood. Railroad v. Ridge, 57 Mo. 599-601; Railroad v. Walds, 70 Mo. 629-631; Combs v. Smith, 78 Mo. 32; Railroad v. Chrystal, 25 Mo. 544; Lee v. Railroad, 53 Mo. 178; Railroad v. Calkins, 90 Mo. 538, 544, 545; Railroad v. Story, 96 Mo. 611-622. (3) The damages were not required to be specially pleaded, Railroad v. Calkins, 90 Mo. 538; Bridge Co. v. Ring, 58 Mo. 491. (4) The statute and proceedings for the condemnation of private property for public use should be liberally construed in favor of those whose rights are to be affected. Bridge Co. v. Ring, 58 Mo. 494. (5) Until entry by a mortgagee for condition broken, or until foreclosure, the mortgagor continues the owner of the land and has a right to lease, sell, and in every respect to deal, with the mortgaged premises as owner, so long as he remains in possession. Kennett v. Plummer, 28 Mo. 142; Woods v. Hilderbrand, 46 Mo. 284; Pease v. Pilot Knob, 49 Mo. 124; Knight v. Railroad, 70 Mo. 238; Ambrose v. Gapen, 22 Mo.App. 401; Salmon v. Fewell, 17 Mo.App. 122; White v. Rittenger, 30 Iowa 271, and citations. (6) Where mortgaged property has been condemned for public purposes, the mortgagee is entitled to be paid out of the money allowed the mortgagor as damages. Astor v. Hoyt, 5 Wendell, 603; In re John and Cherry Streets, 19 Wendell, 650; Gimbel v. Stolte, 59 Ind. 453; Ball v. Green, 90 Ind. 76; Brown v. Stewart, 1 Mich. 87; 1 Jones on Mortgages, sec. 708; Bank v. Roberts, 44 N.Y. 192; Farnsworth v. Boston, 126 Mass. 1; Mills on Em. Dom., secs. 74, 76; Watkins v. Railroad, 47 N.Y. 157. The amount awarded as damages includes all interests in the land, and, if in any special case the mortgagor ought not to receive the fund, the court will, at the instance of the mortgagee, take charge of its proper distribution. Mills on Em. Dom., sec. 76; Crane v. City, 36 N.J.Eq. 339. (7) The award when paid in represents the fee, and should be distributed according to the ownership of the land. Matter of Railroad, 60 N.Y. 116; Ross v. Adams, 28 N. J. L. 160; Mills on Em. Dom., sec. 76.
This was a proceeding commenced by the plaintiff corporation to condemn a right of way over seven forty-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...
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