Gary v. Averill

• Decision Date: 31 December 1928
• Docket Number: 29106
• Citation: 12 S.W.2d 747,321 Mo. 840
• Parties: Theodore Gary et al., Appellants, v. Pearl D. Averill et al.; Oscar Fowler, Excepter
• Court: Missouri Supreme Court

12 S.W.2d 747

321 Mo. 840

Theodore Gary et al., Appellants, v. Pearl D. Averill et al.; Oscar Fowler, Excepter

No. 29106

Supreme Court of Missouri

December 31, 1928

Appeal from Pemiscot Circuit Court; Hon. Henry C. Riley Judge.

Affirmed.

Edgar Shook and Ward & Reeves for appellants.

(1) The court erred in admitting incompetent, irrelevant and immaterial evidence on the part of the excepter and in refusing competent, relevant and material evidence on the part of the appellant. (a) The court refused to permit plaintiff to show that the construction of this road caused a demand for land along the road and an increase in the value of land; and to show the condition of the land in reference to having no road before the construction of this road. In order to arrive at the peculiar benefits this farm would get by the improvement, all the surroundings, circumstances location and present condition, amount of road and outlets or lack of outlets, should be shown to the jury. (b) Upon the question of damages to the farm as a whole in and by the way the road ran through the farm and the peculiar benefits to the farm by constructing a road across it, the farm should be taken as a whole, that is, as a unit; but the court upon request of exceptor's attorneys limited this inquiry to only forty acres of the farm. Thus, the road would cut this forty acres into practically two triangles leaving eighteen acres on one side and nineteen acres on the other; but if you took the farm as a unit, instead of there being a small nineteen acre field on the east side, there would have been a sixty acre field on the east side and the farm was not cut up so badly when viewed as an entire farm, and consequently, the damages to the whole farm, not so much. It was error to limit the inquiry as to forty acre tract instead of the inquiry as to the whole farm as a unit. Chicago Railroad v Baker, 102 Mo. 559; Kansas City Railroad v. Story, 96 Mo. 622; St. L., K. & W. Ry. Co. v. Knapp-Stout Co., 160 Mo. 412; McReynolds v. Railroad, 110 Mo. 484. (c) The court erred in refusing testimony showing peculiar benefits that this farm enjoyed by the road running through the farm and which benefits were enjoyed by other lands adjacent to and through which this road ran, but which were not enjoyed by lands being off the road but in the same neighborhood; and the court erred in holding that it was not peculiar benefits if other farms adjacent to and through which the road ran received the same benefits; and limiting the testimony to that theory of the case. Rives v. Columbia, 80 Mo.App. 173; Ripkey v. Bends, 264 Mo. 514; 20 C. J. 824, sec. 25, and footnote 90. (d) It was error under the pleadings to permit the excepter to show the crops growing on this land, and the fences. The exception to the Commissioner's report especially limits the right of recovery to the value of the land taken and the damages for the way the tract is cut into, and, being especially limited to those items, it is an error to bring in a matter not raised in the pleadings and which the appellant had no notice that they would have to meet. (3) The court erred in permitting the excepter, throughout the trial to inject into this case prejudicial matters against the plaintiff. Hawkins v. Mill Co., 168 Mo.App. 180; State v. Burns, 228 S.W. 769. (4) Instruction 1 is erroneous: (a) It tells the jury to consider "the damages to the whole tract by reason of the road running through it," and thereby assumes, and in plain words tells the jury that there was "damage to the whole tract." (b) It is peculiarly erroneous since the court limited the inquiry to forty acres of the farm; and having so limited the testimony the instruction is erroneous in telling the jury to consider "the damages to the whole tract." (5) Instruction 4 plainly tells the jury they must find damages for the excepter. It does not leave it to the jury to say whether there are any damages or not, and makes no exception for the special benefits to the excepter. It directs a verdict of damages for the excepter, and having directed a finding for damages for excepter it makes no deduction against same for benefits to the farm as a whole. Sec. 21, Laws 1921 (Ex. Sess.) p. 141; Bledsoe v. Stallords, 250 Mo. 165. (6) Instruction 5 is erroneous in that the excepter in his exceptions informed the court and jury that he had been allowed $ 300, and thereby got to the jury that the commissioners had considered excepter damaged over and above the benefits received in the sum of $ 300, and, having gotten the benefit of that, it was error to give this instruction, taking that testimony away from the jury to the effect that he had been paid this amount and took the money. Mo. Pac. Ry. v. Roberts, 187 Mo. 309; St. Louis Ry. v. Pfau, 212 Mo. 398.

Charles G. Shepard, C. E. Bragg and McKay & Peal for respondent.

(1) Appellant was not injured either in the admission or rejection of evidence by the court. In estimating benefits the jury should be restricted to peculiar and direct benefit or increase of value as the result of the land in controversy in which other land in the same locality does not participate. Hickman v. Kansas City, 120 Mo. 125; Railroad Co. v. St. L. Union Stock Yard, 120 Mo. 541; McElroy v. Airline, 172 Mo. 555; Ketchum v. City of Monett, 192 S.W. 470. (3) Appellant was permitted to show all benefits derived by virtue of the road to the entire eighty acres of land, and respondent showed that his total damage was to the forty-acre tract over which the road passed which made an issue for the jury to pass upon and this issue was properly submitted to the jury by the instructions given by the court. (4) A point not made by appellant in its motion for a new trial cannot be raised for the first time in this court. State v. Scott, 214 Mo. 257; Alexander v. Grand Ave. Ry. Co., 64 Mo.App. 66; Vanstone v. Goodwin, 42 Mo.App. 39. (5) Instruction 1 is almost identical with the instruction approved by this court in numerous cases. McReynolds v. Ry. Co., 110 Mo. 487; Railroad v. Chrystal, 25 Mo. 544; Lee v. Railroad, 53 Mo. 178; Railroad v. Calkins, 90 Mo. 538; Railroad v. Waldo, 70 Mo. 629; Railroad v. Story, 96 Mo. 611. (6) Instructions 2, 4, and 5 given on behalf of respondent were proper declarations of law on matters involved in the case, and the court committed no error in giving them or either of them. St. L. K. & W. Ry. Co. v. Knapp-Stout Co., 160 Mo. 396; Railroad Co. v. Waldo, 70 Mo. 629. (7) Instruction 5 withdrew from the consideration of the jury the assessment of damages by the commissioners. Any testimony as to the allowance of damages by the commissioners is wholly incompetent for any purpose, and surely the court committed no error in withdrawing this evidence from the jury. Mo. Pac. Ry. Co. v. Roberts, 187 Mo. 309; St. Louis Ry. v. Pfau, 212 Mo. 398.

OPINION

Gentry, J.

This appeal comes to us from the Circuit Court of Pemiscot County, where the plaintiffs, Theodore Gary, C. D. Mathews, Murray Carleton, and J. R. Davis, composing the State Highway Commission of Missouri, brought suit against several parties, defendants therein, asking that a strip of ground for road purposes be condemned, the same to constitute a part of State Highway No. 9. This highway extends from St. Louis to the Arkansas line. Three commissioners were appointed by the court, who qualified and in due time returned their report, assessing the damages for the various landowners. It seems that the other defendants were satisfied with the sums awarded them as damages, but defendant Oscar Fowler (referred to in the record and hereinafter referred to as the excepter) was not satisfied with the amount awarded him, three hundred dollars. Exceptions in proper form were filed by him, hence the trial in the circuit court.

In the petition plaintiff described the land as being located in Pemiscot County, Missouri, as follows:

"A parcel of land out of the northwest quarter of the southwest quarter of Section 16, Township 16, north, Range 11, east, being more particularly described as follows: from the southwest corner of the northwest quarter of the southwest quarter of said Section 16, thence east 25 feet to a point, said point being the place of beginning, thence north 38 degrees 30 minutes east 1698 feet to the north line of the northwest quarter of the southwest quarter of said Section 16, thence east 102 feet, thence south 38 degrees 30 minutes west 1698 feet, thence west 102 feet to the place of beginning. All being in the northwest quarter of the southwest quarter of Section 16, Township 16, north, Range 11, east, and containing 3.12 acres more or less, of which 0.04 acre is occupied by the present State Highway, and 3.08 acres are new right of way, and belonging to Oscar Fowler."

The balance of the petition was in the usual form and need not be recited here. From all this, it will be seen that the petition asked for the condemnation of a strip of ground across forty acres of land owned by excepter; and excepter, in his exceptions filed, asked for a review of the report of the commissioners allowing him three hundred dollars as damages to the forty acres; and he also asked for a trial of that question by a jury.

The quantity of land taken is conceded to be three and eight-hundredths acres, and it extends across plaintiff's forty diagonnally, entering at the southwest corner and going in a straight line to a point a little west of the northeast corner, cutting said tract so as to leave a fraction more than eighteen acres on one side and a fraction less than eighteen acres on the other. The excepter's evidence tended to show that his land was worth one hundred and fifty dollars an acre, but that by the cutting of it by this highway its value diminished from one-third...