Chicago, S. F. & C. Ry. Co. v. Elliott

• Decision Date: 06 November 1893
• Citation: 117 Mo. 549,24 S.W. 53
• Court: Missouri Supreme Court
• Parties: CHICAGO, S. F. & C. RY. CO. v. ELLIOTT.

24 S.W. 53

117 Mo. 549

CHICAGO, S. F. & C. RY. CO. v. ELLIOTT.

Supreme Court of Missouri, Division No. 1.

November 6, 1893.

INSTRUCTIONS — REVIEW ON APPEAL — OBJECTIONS NOT RAISED BELOW — EMINENT DOMAIN — CONDEMNATION PROCEEDINGS — COSTS OF TRIAL — DAMAGES — APPORTIONMENT.

1. Instructions must be based on testimony.

2. Rulings on testimony are not reviewable on appeal without exceptions saved at the trial.

3. In railway condemnation proceedings the costs subsequent to the commissioners' report are taxable at the discretion of the court.

4. Where all the damages for the condemnation of a piece of land are awarded to one of several owners, (defendants,) the plaintiff company is in no position to complain that the other owners were awarded nothing; as to the company, such error is harmless.

(Syllabus by the Judge.)

Appeal from circuit court, Ray county; James M. Sandusky, Judge.

Proceedings by the Chicago, Santa Fe & California Railway Company against Anderson Elliott to condemn land of defendant for plaintiff's right of way. From a judgment awarding defendant damages, plaintiff appeals. Affirmed.

Gardiner Lathrop, C. T. Garner, Sr., and S. W. Moore, for appellant. J. L. Farris, for respondent.

BARCLAY, J.

This is a proceeding to subject to public use for railway purposes a tract of land in the town of Camden, Ray county. It was in this court once before, (108 Mo. 321, 18 S. W. Rep. 901,) and has since been retried before Judge Sandusky and a jury, with the result of an award of damages in the sum of $225 in favor of defendant. Plaintiff has appealed.

The petition on which the action was begun alleged that six named parties were owners of the property. They were all duly notified; and, in the report of the commissioners which followed, each was found to be entitled to an equal share of the damages, which were then assessed at $300. The plaintiff excepted to the report, and demanded a jury trial, which was finally had, after the appeal already mentioned. At the trial, evidence was heard as to the value of the land, and at its close the court gave these instructions for the plaintiff, viz.: "(1) The jury are instructed by the court, at the instance of the plaintiff, that they will allow only such damages as the defendant actually sustained by reason of the appropriation of said lots of ground in controversy by plaintiff, and that the said damages cannot be based upon any speculative or fanciful value, but must be based upon the actual market value of said lots at the time they were appropriated by plaintiff. (2) The jury are instructed that they will not take into consideration the amount of damages assessed by the commissioners in their report, but will estimate their damages alone upon the law and evidence submitted to them in the trial of this cause." No other instructions were given, but the following, asked by plaintiff, the court refused, viz.: "(3) The jury are further instructed that the jury, in estimating damages, will not take into consideration any increase in the value...