City of Springfield v. Schmook

• Decision Date: 31 October 1878
• Citation: 68 Mo. 394
• Parties: CITY OF SPRINGFIELD, Appellant, v. SCHMOOK.
• Court: Missouri Supreme Court

68 Mo. 394

CITY OF SPRINGFIELD, Appellant,

v.SCHMOOK.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

The instructions asked by plaintiff and refused, and referred to in the opinion, are as follows:

1. In considering the damages (if any) accruing to the defendant from the opening of said street, the jury will not take into consideration any consequential damage, but must consider only the direct and immediate damage to said lot.

2. If the jury believe from the evidence that defendant, Schmook, agreed to take $100 from the city for the strip of land taken in the opening of Phelps street, and said agreement, or offer was not made by way of compromise, or for the purpose of avoiding litigation, they will consider such fact as evidence of the value that defendant, Schmook, at that time, placed upon said strip of land.

3. That in considering the amount of damage (if any) defendant has sustained in the opening of said street, the jury are not to take into consideration any special use or purpose to which said property is or has been appropriated; nor will they take into cosideration any supposed injury to defendant's trade or occupation; nor any alteration that the opening of said street may have made in his supposed convenience, but will consider solely the actual value of the lot for all purposes, both before and after the opening of said street, deducting what special advantages (if any) accrue to said lot by the opening of said street.

Bray & Cravens for appellant.

F. S. Heffernan for respondent.

HOUGH, J.

This was a proceeding, on the part of plaintiff to condemn a portion of the defendant's property for the purpose of a street.

1. STREETS--opening of: damages: mode of computation.

The proceedings are admitted to have been regular, and the only questions before us relate to the measure of damages. In order to determine the damages sustained, where the whole property has not been taken, the effort should be to find the value of the land taken, and then to determine how much the land left was increased or diminished by reason of the appropriation. Mississippi River Bridge Co. v. Ring, 58 Mo. 491, or the process may be varied by ascertaining the difference between the value of the defendant's lot together with all improvements upon it, before the strip was taken and the street opened, and the value of the premises without the strip taken, after the opening of the street. Either of these modes of computation will give the person whose property is taken, the value of his land taken, and any direct and special damages which may result to him by reason of the taking of the same, diminished by the amount of any special benefit which may accrue to him by reason of the improvement. Speculative, remote and consequential injuries and benefits are not to be allowed. Only those injuries and benefits are to be considered which are peculiar to the person whose property is taken, and are such as pertain to the ownership, use and enjoyment of the particular parcel of land, a portion of which is taken. Cooley's Con. Lim., (3 Ed.) 566.

2. _____: ____: evidence.

We do not think it was competent for the detendant to show what other persons had been allowed for their property, in order to establish the amount of his injury by comparison. The assessment of damages in the...