City of St. Louis v. St. Louis, Iron Mountain & Southern Railway Co.
| Decision Date | 15 February 1916 |
| Citation | 182 S.W. 750,266 Mo. 694 |
| Parties | CITY OF ST. LOUIS, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY and REGAL BUGGY COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.
Reversed and remanded.
Charles H. Daues and Truman P. Young for appellant.
(1) The measure of damages in condemnation suits for land condemned is the market value of the land taken. Lewis on Eminent Domain, secs. 685, 706; Cooley's Constitutional Limitations (7 Ed.), chap. 15, p. 819. (2) In cases where land to be condemned is under lease the measure of damages in favor of the lessee is the market value of his lease over and above the rent reserved. Lewis on Eminent Domain, sec. 719; Hughes v. Hood, 54 Mo. 352; Baltimore v Rice, 73 Md. 307. (3) Where land is condemned for public use there can be no allowance for damages for the cost of removing personal property or for injury to such property during the process of removal, or for interruption of business. This rule is applicable whether the land is occupied by the owner or by a lessee. Railway v Knapp-Stout & Co., 160 Mo. 396; Railroad v. Schweitzer, 173 Mo.App. 650; Railroad v. Porter, 112 Mo. 361; Cobb v. Boston, 109 Mass. 444; Lewis on Eminent Domain, sec. 727; In re Petition of New York v. Brooklyn Bridge, 4 N.Y.S. 222; Railroad v. Pierce, 35 Hun, 306; Edmunds v. Boston, 108 Mass. 549; Williams v. Commissioners, 168 Mass. 366; In re N. Y. W. S. B. R., 35 Hun, 636; Becker v. Terminal Ry. Co., 177 Pa. 253; Raulet v. Railroad, 62 N.H. 561. (4) In those cases where an allowance has been made for the cost of moving personal property or for interruption to business, the decision has been based upon peculiar provisions of the statutes or constitution, and such decisions recognized that the general rule in the absence of such provisions does not allow the recovery of such damages. Blincoe v. Railroad, 16 Okla. 286, 4 L. R. A. (N. S.) 890 and note. (5) The Missouri cases which have allowed damages for the removal of property have done so only in those cases where the condemnor would have had to pay the entire value of the property removed, if it were allowed to stay upon the land. In order to reduce the amount of damages it has been held that buildings and appurtenances found upon the land condemned may be removed and the cost of removal charged as a proper element of damages. Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 282; St. Louis v. Brown, 155 Mo. 567; Kansas City v. Morse, 105 Mo. 511; Railroad v. Clark, 121 Mo. 199. That these cases do not sustain the proposition that a lessee or owner may recover the cost of the removal of personal property or damages to business was clearly pointed out in the case of Railroad v. Schweitzer, 173 Mo.App. 650.
Rassieur, Kammerer & Rassieur for respondent.
(1) Section 21 of the Bill of Rights protects private property in personalty as fully as it does in real estate. Mo. Constitution, art. 2, sec. 21; Railroad v. McGrew, 104 Mo. 282; Bridge Co. v. Schaubacher, 57 Mo. 582; City v. Abeln, 170 Mo. 326; Monongahela Nav. Co. v. United States, 148 U.S. 312. (2) Under the Constitution of Missouri and the provisions of the charter of the city of St. Louis authorizing condemnation proceedings, the commissioners properly assessed as damages the cost of removing respondent's stock of goods and fixtures, the depreciation in value of its goods and fixtures caused by removal and reinstallation, and the injury to respondent's business caused by the interruption of same during the period of removal. City v. Abeln, 170 Mo. 326; Railroad v. McGrew, 104 Mo. 282; Bridge Co. v. Schaubacher, 57 Mo. 582; City v. Brown, 155 Mo. 545; Blincoe v. Railroad, 16 Okla. 286; Railroad v. Siegel, 161 Ill. 647; Railroad v. Heisel, 47 Mich. 399; Railroad v. Weiden, 70 Mich. 393; Railroad v. Getz, 113 Pa. 219; Printing Co. v. Railroad, 216 Pa. 504.
The city of St. Louis brought this action to condemn a strip of land for the western approach to its Municipal Bridge. Damages were assessed in favor of the several defendants by a commission of three freeholders, to whose report the city filed exceptions. The case came on for hearing in the circuit court of the city of St. Louis, wherein the exceptions of appellant city were overruled and it appealed.
The Regal Buggy Company, respondent herein, was the lessee for years of one parcel of the real estate which was condemned in this action. The lease of respondent, at the date of the making of the commissioners' report, had a little over three years to run. Specifically touching the land occupied by respondent the commission assessed the value of said land taken, plus the damages to the remainder of the parcel, at the sum of $ 41,310. They then apportioned this sum by allowing to the owner thereof $ 38,610, and to this respondent, as lessee, the sum of $ 2700, being the appraised value of its lease over and above the monthly rent reserved. After making allowances of damages aforesaid the commission allowed the respondent the further sum of $ 8450 on account of injury to its business and for its damages and expenses arising from the removal of the fixtures and personal property of respondent from the premises condemned to a new location and for installing said property therein. The commissioners' report, which was approved by the circuit court upon exceptions taken thereto, states the specific elements of damages going to make up the last mentioned sum thus:
The allowance of damages for the three items above enumerated is the sole matter of contention here. It is conceded, even, that if these three items were proper subjects of damages, then that the amount allowed respondent therefor is fair and reasonable, but appellant contends that under the law of eminent domain of this State no such damages may be paid by the condemner to his whose land is taken for public uses.
These three propositions and the contentions of appellant and respondent pro and con respectively, form the points up for decision.
OPINION.As forecast there is no contention made by appellant that respondent as the owner of a lease for a term of years was not entitled to compensation therefor; nor that the amount of damages awarded as the market value of respondent's lease, to-wit, $ 2700, is unfair or unreasonable. It is only the damages awarded for the three items set out in our statement herein that are in controversy.
I. For convenience of discussion we will consider all items or elements of damages together, except that having to do with the fixtures, which we leave for subsequent separate discussion, since, under the law as we view it this may be conveniently done. In brief, these elements have to do with the allowance of damages (a) for the removal of the stock of goods of respondent from the right of way taken to a new location and placing them therein; (b) for depreciation in the value of said goods, caused by such removal and re-installation, and (c) for injury to the business of respondent on account of the interruption or cessation thereof during the period of removal of said stock of goods and fixtures.
When this case was argued, the writer was of the opinion that it ought to be affirmed upon principle if not upon authority; but upon coming to examine the authorities I have been forced to a different view. Coming to the question of authority first, we have had our attention directed to but one case squarely on all-fours in favor of the allowance of damages for the expense of removal of personal property from the right of way condemned. That is the case of Blincoe v. Railroad, 16 Okla. 286, 4 L. R. A. (N. S.) 890. In the latter case the question of the allowance of such expenses was squarely before the court and he whose lease was taken was adjudged entitled to expenses of removing certain personal property, to-wit, lumber, from the lands taken. In that case, however, the learned court admitted that the rule in other jurisdictions was contrary to the conclusion reached; but it held that the law in Oklahoma warranted a different holding because of the language of the statute of that State, which in substance required the commission to consider the injury which the owner of the land might sustain and assess the damages caused him by reason of the appropriation of his lands.
The case of Philadelphia & Reading Railroad Co. v. Getz, 113 Pa. 214, 6 A. 356, is urged upon us as announcing a rule in favor of the contention that damages of the sort here under discussion may be allowed; but that case did not deal with ordinary personal chattels, but apparently with machinery and fixtures. Besides, the Pennsylvania court, in the later case of Becker v. Railroad, 177 Pa. 252, held to the contrary, in that they held that it was proper to refuse to allow proof as to the expense of the removal from such land of the personal property of him whose land was being taken, and said that the expense of such removal could not be considered as an element of damages for the condemnation of real estate for public uses.
The case of Atchison, Topeka & Santa Fe Railroad Co. v Schneider, 127 Ill. 144, 20 N.E. 41, is urged as an authority for the awarding of damages of the sort here under...
To continue reading
Request your trial