Kansas City, C. C. & St. J. Ry. Co. v. Couch

• Decision Date: 02 June 1916
• Docket Number: No. 17615.,17615.
• Citation: 187 S.W. 64
• Parties: KANSAS CITY, C. C. & ST. J. RY. CO. v. COUCH et al.
• Court: Missouri Supreme Court

187 S.W. 64

KANSAS CITY, C. C. & ST. J. RY. CO. v. COUCH et al.

No. 17615.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Condemnation suit by the Kansas City, Clay County & St. Joseph Railway Company against Joseph W. Couch and others. From the award of damages to defendants, plaintiff appeals. Reversed, and cause remanded.

Bowersock, Hall & Hook and Beardsley & Beardsley, all of Kansas City, for appellant. Francis M. Wilson, of Kansas City, Charles Lyons, of Lexington, James P. Chinn, of Higginsville, and Carl L. Ristine, of Lexington, for respondents.

BROWN, C.

This is a statutory condemnation suit to appropriate land for the construction and operation of plaintiff's railroad. The suit was instituted in Platte county, where the land is situated, and was removed by change of venue to Lafayette county, where it was tried and resulted in the verdict and judgment for $9,674.34, from which this appeal is taken.

The plaintiff is a railroad corporation organized and incorporated under the general laws of the state of Missouri for the purpose of constructing, maintaining, and operating lines of railroad from Kansas City to St. Joseph and from Kansas City to Excelsior Springs. The usual preliminary proceedings were had, and the commissioners assessed the damages in favor of defendants at $6,105. From this award both parties appealed to the circuit court, the trial resulting as above stated.

The land with respect to which the damages were awarded is a stock farm of 640 acres, 480 acres of which consists of three quarter sections lying side by side, extending a mile and a half east and west, and the remaining 160 acres consists of the north half of two quarter sections lying south of the two west quarters first mentioned. Defendants' farm buildings are located at the south line of the middle quarter section some little distance east from a public road extending north and south, approximately dividing the middle quarter section and the half quarter south of it into equal parts, and west of the railroad, which enters the farm across the northeast corner of the east of the two 80's, close to the southwest corner of the east quarter section, and runs northwesterly and in a straight line diagonally across the public road, leaving the farm at the north line, and leaving approximately 50 acres of the quarter and 210 acres of the farm east of the right of way, which amounts to 6.38 acres. The land along the right of way is uneven, so that the construction consists mostly of cuts and fills. The deepest cut is 16 feet on one side and 14 feet on the other, while the highest fill or embankment is 26½ feet. The defendants ordinarily feed upon the place about 250 head of cattle each year. The feed lots are east of the railroad and public road, where there is a spring which furnishes an abundance of water for the stock. The cultivated land and the most of the pasture is on the west side of the railroad, where there is a stream which furnishes water part of the year and fails in a dry time. The spring and the stream provide the only surface waters on the farm. The testimony as to the value of the land taken ranged from $75 to $200 per acre, while the testimony with reference to the damage to the remainder of the farm covered the latitude lying between nothing and $40 per acre.

The giving of certain instructions is assigned as error. We will notice these as they require consideration in the opinion. It is also assigned for error that the verdict is so clearly excessive that it ought not to be permitted by this court to stand.

1. Defendant's seventh instruction, of which the appellant complains, opens with the following proposition:

"The court instructs the jury that, in estimating the damages in controversy, you will take into consideration the quality, quantity, and value of the land taken by the railway company for a right of way, and also the damage and depreciation in value of the remainder of the farm of the defendants not taken as such right of way, by reason of said railroad running through it."

This sentence constitutes a distinct and separate proposition concluding with a period, and presents in general terms the principles which should govern the jury. Every element of damage is included in its general terms. It then proceeds to enlighten them as follows:

"You will also consider the size and shape of the two tracts into which the farm is divided by said railroad running through it; the cuts and fills upon the same; the inconvenience in getting to water; the inconvenience in getting from one part of the farm to another on account of the location of said right of way, and any other fact or facts in testimony, which you may believe will have a tendency to depreciate the market value of said farm for the purpose for which it is used or adapted."

In this sentence we have emphasized the word also, which always means, in such a connection, "in addition to," or "likewise," to direct attention to the fact that it authorizes damages for the several incidents of what it assumes to be personal inconveniences which will follow the appropriation and use of the right of way, to be added to the damage and depreciation in value of the remainder of defendants' farm by reason of the railroad running through it. But it proceeds in the same sentence to tell them that they will take into consideration any other fact or facts in testimony which they may believe will have a tendency to depreciate the market...