Hook v. Chicago & Alton Railway Co.

• Decision Date: 10 March 1896
• Citation: 34 S.W. 549,133 Mo. 313
• Parties: Hook et al. v. The Chicago & Alton Railroad Company, Appellant
• Court: Missouri Supreme Court

34 S.W. 549

133 Mo. 313

Hook et al. v. The Chicago & Alton Railroad Company, Appellant

Supreme Court of Missouri, First Division

March 10, 1896

Appeal from Callaway Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed and Remanded.

Bailey & Tincher for appellant.

(1) The trial court should have allowed the witness, T. H. Hubbard to testify as to the grade and course of the railroad at and adjacent to the point of the crossing of the county road. With a heavy grade and sharp curves at this point the disadvantages to the defendant might be far in excess of any advantages that could possibly accrue. To show such grade and curves was the object of offering such testimony. (2) The court erred in permitting the witness, M. Messersmith, to testify that the advantages were equal to the disadvantages to defendant, in opening the road, against defendant's objection, inasmuch as said witness was unable to point out any advantage whatever that would result to defendant. The fact that gates were left open is no fault of defendant, and defendant would not be liable for cattle killed by reason thereof. R. S. 1889, section 2611. (3) The court erred in refusing instruction number 2, as asked by defendant. The first cost of putting in the crossing is not the full measure of defendant's damages. (4) The court erred in giving the instruction asked by the plaintiffs. The same does not properly declare the law. It is in conflict with the statutes. R. S. 1889, section 2609, and section 2614. (5) The court erred in overruling defendant's motion for new trial. The verdict is not only against the evidence, but is manifestly the result of prejudice and passion, and should not be allowed to stand. (6) The appeal was properly allowed by the county court at the time it was taken. R. S. 1889 sec. 7801; Railroad v. Railroad, 94 Mo. 542. (7) A railroad company is entitled to compensation for damages to its franchise, track, etc., sustained by the extension of public highways across its right of way, as well as other parties. 7 Lawson's Rights, Remedies, etc., page 6130, and authorities cited. And the measure of damages is a sum sufficient to put and keep its embankments, tracks, etc., in as safe condition as before, and to compensate it for any additional injury to its franchise or expense attending and incidental to the occupying of its right of way. 7 Lawson's Rights and Remedies, p. 6139, sec. 3896; Railroad v. Railroad, 96 Ill. 274; Railroad v. Railroad, 62 Mich. 564. (8) Appellant holds its franchise under the act of 1868, which does not require it to make new crossings, and which antedates the present law. Laws, 1868, pp. 97 and 102, sec. 17.

N. D. Thurmond with D. H. Harris, prosecuting attorney, for respondents.

(1) This case was appealed from the county court on the trial of the question of damages, by a jury, under section 7799 of Revised Statutes, and before there was a final judgment of the court condemning the land for road purposes, and, therefore, the appeal should be dismissed. Railroad v. Railroad, 94 Mo. 540; R. S. 1889, secs. 3434, 7801; Long v. Talley, 91 Mo. 305; State ex rel. v. Edwards, 104 Mo. 125. (2) The only damages a landowner is entitled to is the value of the land taken and the injury to the part of the tract not taken. A public road crossing a railroad track does not deprive the railroad company of the use of its land, and, therefore, can not damage it. The only damage claimed by the railroad in this case is the cost of making the crossing, putting in necessary cattle guards, and fencing. The law requires railroads to do this at all crossings or roads "now or hereafter to be opened." All railroad companies accept their charters with this provision of the statute as an incumbrance upon their franchise. There is no more reason for paying railroads damages for opening new roads over their right of way than to pay them to make crossings for roads established before the building of the railroad. R. S., section 2609. (3) The verdict of the jury was in accordance with the evidence in the case as will fully appear from reading the testimony preserved in the bill of exceptions.

Barclay, J. Brace, C. J., and Macfarlane and Robinson, JJ., concur.

OPINION

Barclay, J.

This is a condemnation proceeding begun in the county court of Callaway with a view to establish a local road, which crosses in its course the railway line of defendant. Mr. Hook and others are petitioners for the road.

The county court after the usual preliminaries (R. S. 1889, secs. 7796, 7797) appointed commissioners to assess the damages resulting from the establishment of the proposed road across defendant's land or "right of way." The commissioners assessed $ 10 damages in favor of the defendant. The latter filed exceptions; and, upon a jury trial in the county court, a verdict for defendant for the same sum was rendered.

Defendant appealed to the circuit court, where the cause was again tried with the aid of a jury, who found that the railroad company should recover nothing. This finding was confirmed by the court in a judgment, from which defendant appealed.

The appeal from the county court was taken before any final order there, declaring the road opened or established.

At the trial in the circuit court defendant offered testimony tending to show that the actual cost of putting in necessary improvements required by law at such a railway crossing would be more than $ 150.

The plaintiffs' own evidence on the same subject showed that such cost would exceed $ 100.

The testimony for the defendant company showed all the items of cost of the improvements that would be necessary, including among them two cattle guards (see section 2611) at $ 84.26 and fencing at $ 18.89, besides the materials and labor required for the crossing proper under section 2609 (R. S. 1889).

The plaintiffs made an attempt to prove that defendant would derive certain benefits or advantages from the new road.

As the rulings on this branch of the case have an important bearing on the result, we present a copy of all the evidence on that subject.

Mr. Hook testified: -- "I think it would be an advantage to the company to have the road opened there on account of the gateway. The gates are generally open and stock sometimes get hemmed in there and are killed by the cars, and if they had guards and a good crossing they would not get hemmed in and fewer would be killed, and it would give the people an outlet to the Burges Mill road which leads to Carrington where they do their railroad business. I think it would be more of an advantage than a disadvantage to the railroad."

Other witnesses testified, substantially, to the same effect; among them Milton Messersmith, as follows:

Q. "Considering the advantages and disadvantages that would accrue from opening this road, what do you think the railroad would be damaged?"

To this question defendant objected on the grounds that it does not define the advantages that may be considered as offset to damages, nor has it appeared from the evidence of the witness that any advantage would result to defendant from opening the road, which objection the court overruled, and defendant excepted.

In answer to this and similar questions, witness said:

"Well, I think if there was any stock running across that place, I would consider it to their interest to put in something there. I believe it would be to their interest to put in the cattle guards and other things. I am one of the petitioners."

B. F. Herring testified, substantially, that advantages would exceed disadvantages, and on cross-examination testified, to quote the record, "that he was basing his estimate on the fact that stock gets in there and is killed, and then the railroad company has to pay for them; that the cattle would not get in there if the gates were kept shut, but they are not always kept shut."

This was all the testimony.

The court then gave an instruction, at defendant's request to the effect that the company was "entitled to damages sufficient to construct a cattle guard on its roadbed on each side of said public road; also, to fence each side of said public road from the edges of its right of way to said cattle guards; also, to provide and nail in place plank at least two inches thick,...