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

• Decision Date: 09 November 1891
• Parties: The Chicago, Santa Fe & California Railway Company, Appellant, v. Miller
• Court: Missouri Supreme Court

17 S.W. 499

106 Mo. 458

The Chicago, Santa Fe & California Railway Company, Appellant, v. Miller

Supreme Court of Missouri, First Division

November 9, 1891

Appeal from Clark Circuit Court. -- Hon. Ben. E. Turner, Judge.

Reversed and Remanded.

Gardiner Lathrop for appellant.

(1) The plaintiff was entitled to have the report of the commissioners set aside, and the jury trial ordered as a constitutional right. Railroad v. Town-Site Co., 103 Mo. 451; Const. of Mo., art. 12, sec. 4; Railroad v Almeroth, 13 Mo.App. 91; Railroad v. Story, 96 Mo. 611. (2) The plaintiff did no act, whereby he waived a trial by jury. Railroad v. Story, 96 Mo. 611. (3) When the commissioners have erred in the principles upon which they made their appraisal, the report should be set aside. Railroad v. Campbell, 62 Mo. 585; Railroad v. Brickett, 62 Ill. 332; Railroad v Story, 96 Mo. 611. (4) The alleged contract for a sub-way under the trestle of plaintiff's railroad was improperly introduced in evidence for the reason that it did not appear that the person signing it had any authority to bind the company by such an agreement. 2 Morawetz on Corporations, secs. 509, 590; Barcus v. Railroad, 26 Mo. 102; Tucker v. Railroad, 54 Mo. 177; Brown v. Railroad, 67 Mo. 122; Mayberry v. Railroad, 75 Mo. 492; Boylu v. Railroad, 13 Mo.App. 574. (5) Even if D. W. Finney had had authority to make the agreement it was a mere license, which was revocable at will. Fuhr v. Dean, 26 Mo. 116; Railroad v. North, 31 Mo.App. 345; Bird v. Railroad, 34 L. J. C. 366; Lewis on Em. Dom., sec. 332; Tiedeman on Real Prop., sec 651. The alleged contract cannot be construed to create an estate in land, but is at best only a personal obligation, the subject of an independent action, and not properly an element of damage in condemnation proceedings. Fuhr v. Dean, 26 Mo. 116; Railroad v. North, 31 Mo.App. 345; Devlin on Deeds, secs. 63, 65. Tiedeman on Real Prop., sec. 599.

OPINION

Black, J.

The plaintiff commenced this suit before a justice of the peace, under section 2566, Revised Statutes, 1889, to condemn two tracts of land, one containing three and eight-tenths acres, and the other twelve and six-tenths acres, for the purpose of a reservoir. The justice appointed three commissioners who assessed the damages at the sum of $ 1,386. The plaintiff filed exceptions to the commissioners' report, and thereby among other things demanded a jury for the assessment of damages, and at the same time prosecuted an appeal to the circuit court. That court, after hearing the evidence adduced, overruled the exceptions, and thereby denied to the plaintiff a jury trial, and of this ruling error is assigned.

Section 21 of article 2 of the constitution provides that the compensation to be paid for private property taken or damaged for public use "shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law." Section 4, article 12, after declaring that the right of eminent domain shall never be so construed or abridged as to prevent the taking of property and franchises of incorporated companies, provides: "The right of trial by jury shall be held inviolate in all trials of claims for compensation, when, in the exercise of said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right."

The first of these sections, found in the bill of rights, does not guarantee to the property-owner a common-law jury trial in the assessment of damages. It simply requires the damages to be assessed either by a jury or by a board of not less than three freeholders. But that section is general in its terms and must be taken in connection with section 4 of article 12, which is specific and must control as to all cases coming within its terms. The last-named section, it has been insisted on some occasions, guarantees a jury trial in those cases only where it is sought to condemn the property or franchises of an incorporated company; but the language quoted does not admit of so narrow and limited construction. A jury is guaranteed in all claims for compensation for property taken in the exercise of the right of eminent domain when any incorporated company shall be interested either for or against the exercise of such right. It, therefore, matters not whether the incorporated company is interested either for or against the exercise of this right; for in either case either party to the suit is entitled to a jury trial at some stage of the...