Chicago, R. I. & P. Ry. Co. v. George

• Decision Date: 14 June 1898
• Citation: 145 Mo. 38,47 S.W. 11
• Court: Missouri Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. v. GEORGE.

47 S.W. 11

145 Mo. 38

CHICAGO, R. I. & P. RY. CO. v. GEORGE.

Supreme Court of Missouri, Division No. 2.

June 14, 1898.

EMINENT DOMAIN — CONDEMNATION PROCEEDINGS — DAMAGES — MEASURE — EXCESSIVENESS — INSTRUCTIONS — APPEAL — REVIEW — HARMLESS ERROR.

1. In condemnation proceedings, an instruction to allow the value of the land actually taken for the right of way, and such further sum as represents the damage to the whole tract of which the right of way forms a part, is not erroneous as allowing double damages.

2. A reference in a charge in condemnation proceedings to "the farm of defendant of which the right of way forms a part" does not include a tract of land a quarter of a mile distant, of which the right of way formed no part.

3. In an action to condemn a railroad right of way, a charge is proper that, if the maintenance of a pond is not affected by the construction of the road, no sum should be allowed as damages to the pond, and that this is true even though the pond may extend upon the right of way.

4. A judgment will not be reversed on technical objections where appellant was not prejudiced.

5. Where a verdict is supported by substantial evidence, and was approved by the trial court, it will not be reversed on the ground of excessive damages.

Appeal from circuit court, Mercer county; Paris C. Stepp, Judge.

Condemnation proceedings by the Chicago. Rock Island & Pacific Railway Company against Abner B. George. There was a judgment for defendant, and plaintiff appeals. Affirmed.

M. A. Low and W. F. Evans, for appellant. Harber & Knight, for respondent.

BURGESS, J.

This is a proceeding commenced by plaintiff corporation to condemn a right of way over a tract of land owned by defendant, Abner B. George. When the petition for condemnation was filed, on July 29, 1895, in the circuit court of Mercer county, Mo., commissioners were appointed to assess the damages, who viewed the premises, assessed the damages at $2,500, made their report, and filed the same with the clerk of the circuit court of said county. Thereafter, upon motion of plaintiff, the report was set aside, and inquiry of damages ordered before a jury. At the September term, 1895, of said court, the case was tried by a jury, who returned a verdict in favor of defendant, assessing his damages at $3,750. After unsuccessful motions for a new trial and in arrest, plaintiff appealed.

The evidence showed that defendant owned a tract of land containing about 447 acres in one body, through which plaintiff sought to condemn a strip 100 feet wide for right of way, upon which to move its roadbed and track from where it was then located. The weight of the evidence showed that this land was worth $45 or $50 per acre. The strip taken runs diagonally across part of the land, and between the present right of way and the proposed there are about 17.9 acres of defendant's land, and there are 10.41 acres in the proposed right of way. Between the proposed right of way and the public road there are 9.49 acres, and there are 4.47 acres lying east of the highway running through the land. Then south of the public highway, and east of the proposed railroad, there are 47.44 acres in the northeast quarter. Where the land taken joins the present road there is a fill of 300 or 400 feet in length, and 15 feet high. The proposed roadbed runs mostly to the surface of the ground for 200 or 300 feet, and then there is another fill, about the same as the other, for about 300 or 400 feet, then a light cut, and then a fill of from 15 to 18 feet, then another cut of 29.06 feet at the center and 33 feet at the upper edge of the slope. That cut extends about 1,400 feet, and then there is another fill of 21 to 23 feet, which extends on defendant's land about 700 feet, including the bridge. There was a valuable pond on the land, which the evidence tended to show would be substantially destroyed by the construction of the road. Defendant also owned 40 acres of land which lie a quarter of a mile from the 447-acre tract, which plaintiff contends were considered by the jury in estimating the damages, but this position is not sustained by the record.

Plaintiff prayed the court to instruct the jury as follows: "(1) The court instructs the jury that it is the duty of the railway company to erect and maintain all necessary farm crossings for the use of the proprietors or owners of the lands adjoining said railroad. You are therefore instructed to entirely exclude in your estimate of the damages all necessary expenses to erect and maintain all such crossings. (2) The court instructs the jury that you will not allow any damages that may result from the construction and operation of the railroad in question over the public highway or highways near or in the vicinity of defendant's lands. (3) The court instructs the jury that you will not allow any sum as damages to the lands lying south and east of the public highway extending through section 3, in an easterly and westerly direction, by reason of the location and construction of the proposed railway over the lands north of said public highway. (4) The court instructs the jury that the only damages that you can allow to the lands lying east and south of the public highway, referred to by the witnesses, extending in an easterly and westerly direction through section 3, are such damages, if any, as will be caused by the location and construction of the railway over the lands south and east of said public highway. (5) The court instructs the jury that you 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 said railroad. (6) Under the law of this state, it is the duty of the plaintiff to build and maintain good and substantial fences on each side of its right of way. You are therefore to exclude entirely from your estimate of the damages all expenses necessary for the construction and maintenance of such fences. (7) The court instructs the jury that if you find from the evidence that the maintenance of the pond referred to by the witnesses, at its present location, will not be affected or disturbed by the proper construction or maintenance of the railway, then you should not allow any sum as damages to said pond. (8) The court instructs the jury that, under the law of this state, the plaintiff, by the condemnation proceedings, did not, has not, and will not acquire the absolute ownership of the lands condemned through the defendant's lands for right of way, and only has and will, by such proceedings, acquire, the right to use such lands as and for the purposes, needs, and necessities of a railway, so long as it continues to use the same for such purposes. The legal title in fee simple of such lands remains in the defendant, subject only to the right of user on the part of the plaintiff. (9) The court instructs the jury that in estimating the amount of damages to the lands north and west of the public highway which extends through ...