Hannibal Bridge Co. v. Schaubacher
| Decision Date | 31 October 1874 |
| Citation | 57 Mo. 582 |
| Parties | HANNIBAL BRIDGE CO., Appellant, v. BERTHA H. SCHAUBACHER, et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from Hannibal Court of Common Pleas.
Thomas H. Bacon and W. C. Foreman, for Appellant.
I. The court erred in refusing appellant's instruction, (2) that if the Schaubachers claimed their parcels of land in suit under respective title deeds along the “east line,” (Jackson vs. Hathaway, 15 John., 447) and by the ““west side,” (Smith vs. Slocomb, 9 Gray, 36) of Craig's alley, ), then such ownership, giving no interest whatever in Craig's alley, did not entitle the Schaubachers to a claim for damage to out-lot 93, arising from the bridge company's appropriation of land exclusively on the other side of Craig's alley. (Hatch vs. Vermont, & c., 25 Vt. 60.)
Being on the opposite side of a thoroughfare street in a city, (Dillon Mun. Corp., 1 Ed., p. 534, § 556), the severance was completed, and out-lot 93 was merely “injuriously affected,” (see English Statutes), and our statute makes no provision for such damages in this proceeding, (Wagn. Stat., 1872, p. 326, § 1) nor even for running on the highway itself. (Porter vs. North Mo., 33 Mo., 128.)
II. The court erred in excluding testimony, showing that the brewery premises on out-lot 93 could, at a moderate expense, have been easily placed in thoroughly effective condition by a transfer of the works from the east side of Craig's alley to the respondent's premises on the west. Even in a case of trespass vi et armis, the cost of such repair would be the very measure of damage. (.)
III. It is a general principle that a party cannot recover for damages which could be averted by reasonable exertions. (Fisher vs. Goebel, 40 Mo., 475-481; Waters vs. Brown, 44 Mo., 302, 303; State vs. Powell, 44 Mo., 436, 440.)
James Carr, for Respondents.
I. The statute under which this proceeding took place, is very broad and comprehensive in its terms, viz: “To assess the damages which such owners may severally sustain in consequence of the establishment, erection and maintenance of such road.” (§ 1, Art. V, ch. 37, pp. 326-7, Wagn. Stat.) This is broad enough to embrace all consequential damages, as in Massachusetts, Pennsylvania and other States; and lands injuriously affected, as in England.
II. The true question was, how much damage was done to the respondent by the establishment, erection and maintenance of said approach to said bridge over the lot on the east side of Craig's Alley. (Robb vs. Maysville & Mt. Sterling Turnpike R. Co., 3 Met., [Ky.] 117; Moeller vs. St. Louis & I. M. R. R. Co., 31 Mo., 262.)
The intervening of Craig's Alley between the lot on the east side and the brewery building on the west side of said alley does not preclude the respondents from recovering the damages done to the brewery property. The brewery property was an entirety.
When this cause was here before (49 Mo., 555) the judgment of the Common Pleas Court was reversed, because it held the finding of the commissioners conclusive, and refused to hear any evidence when the exceptions were filed. When the case was again called for a hearing, under a recent statute of this State, a jury was demanded and impaneled.
The facts now are the same as they were then. Defendants owned two lots in the city of Hannibal, situated immediately under the bluff on the Mississippi river. These lots were separated by Craig's alley. On the lot west of the alley a brewery was erected and in operation, and on the lot east of the alley, which was bounded by the river, was a malt house, horse power, pump and pipe. From this pump the pipe ran westward under the soil of the alley and was connected with the brewery, and by it the brewery was supplied with water.
Plaintiffs, by a proceeding under the statute, condemned and appropriated the eastern lot, causing an entire destruction of the malt house, horse power and water pipe, and thereby effectually precluded the defendants from using or operating the brewery. Damages were claimed for the injury done to both pieces of property.
The court submitted issues to the jury, in substance as follows: 1st. What was the value of the lot lying east of Craig's alley, belonging to the defendants, and sought by plaintiffs to be appropriated to their own use as a railroad bed? 2d. Were the defendants, as owners of the lot west of Craig's alley with the improvements thereon, damaged by the appropriation of the ground east of the alley for the construction and maintenance of plaintiff's railroad? If so, how much? The jury found both issues for the defendants, and assessed separate damages for each lot.
To the submission of the second issue, the plaintiffs excepted, on the ground that they were not liable for damages to the property west of the alley. Their position seems to be, that the operation of the malt grinder, horse power, pump and pipe on the lot east of the alley, did not entitle the defendants to a claim for damages to the property west of the alley, because the defendants owned no interest in the soil of the alley, and the two parcels of land were completely dissevered. But this objection cannot be sustained. It is erroneous in reference to the ownership of the fee in the alley, and gives entirely too narrow a construction to the statute as regards the damages recoverable in behalf of those who suffer injury on account of their property being appropriated. The owner of land joining on a street, alley or public highway, owns the fee to the center thereof, subject to an easement in the public, and as the defendants owned on both sides, their fee extended to the whole alley.
The statute requires the commissioners “to assess the damages which the owner of the land may sustain by reason of such appropriation.” This by no means confines the assessment to the land actually taken. That may constitute the smallest amount of the injury done. There may be consequential damages which result by reason of the appropriation fairly comprehended within the scope of the law, and this case furnishes a strong illustration. Such is the construction placed upon similar statutes in other States.
The Massachusetts statute, though using different language, is in spirit the same. It declares, that “every railroad corporation shall be liable to pay all damages that shall be occasioned by laying out and making and maintaining their road, or by taking any land or materials, etc.
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