Kansas City, C. & S. R. Co. v. Story

• Decision Date: 20 December 1888
• Citation: 10 S.W. 203,96 Mo. 611
• Parties: KANSAS CITY, C. & S. R. CO. v. STORY.
• Court: Missouri Supreme Court

10 S.W. 203

96 Mo. 611

KANSAS CITY, C. & S. R. CO. v. STORY.

Supreme Court of Missouri.

December 20, 1888.

1. EMINENT DOMAIN — PROCEDURE — TRIAL BY JURY.

In proceedings to condemn land for railway purposes, the right of trial by jury as to the amount of compensation, guarantied by Const. Mo. art. 12, § 4, is not waived by the appearance of the owner before the judge in vacation pursuant to notice, and the appointment of commissioners at his request; and a demand for a jury, after their report is filed and he has excepted thereto, is in time.

2. SAME — CONSTITUTIONAL LAW.

Whether under Rev. St. Mo. art. 6, c. 21, § 896, provision is only made for a jury trial when a new appraisement is ordered, is immaterial, as the constitutional right to a jury trial is not lost by the lack of legislation prescribing the mode of its exercise.

3. SAME — SUFFICIENCY OF REPORT.

Under Rev. St. Mo. art. 6, c. 21, § 894, requiring a report of commissioners to contain "a specific description of the property for which damages are assessed," a report referring to the road as "located over, through, or upon" the land in question, and accompanied by a plat, which, with the plat and profile filed under the statute in the county clerk's office, fully shows the location, is sufficiently definite. SHERWOOD, J., dissenting.

4. SAME — COMPENSATION.

Injury to a subdivision, through which the road does not pass, but which constitutes part of the same farm, should be estimated as part of the damages, though not mentioned in the petition.¹

5. SAME — ELEMENTS OF DAMAGE.

Cuts and fills necessary to be made in the construction of the road ought also to be considered as enhancing the damages.¹

6. SAME — LUMPING DAMAGES.

Damages should not be "lumped," or estimated arbitrarily, as by doubling the value of the land actually taken.

Appeal from circuit court, Cass county; NOAH M. GIVEN, Judge.

Proceedings by the Kansas City, Clinton & Springfield Railway Company to condemn land of Thomas R. Story for railway purposes. The damages were assessed by commissioners at $410, their report confirmed by the court, and defendant appeals. The plat accompanying the report was substantially the same as that filed in the county clerk's office, of which the following is a copy:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The petition, which was against Story, and other owners on the route of the road, is as follows:

"The petition of the Kansas City, Clinton & Springfield Railroad Company respectfully shows that it is a corporation created and existing under and by virtue of the laws of the state of Missouri; that your petitioner, in pursuance of the laws of said state, and of its charter is about to construct, operate, and maintain a standard or broad guage railroad in the counties of Cass, Henry, St. Clair, Hickory, Cedar, Polk, and Green, commencing on the west line of the state of Missouri, in the county of Cass, at a point where the eastern terminus of the line of railroad of the `Johnson County Railroad Company,' a corporation of the state of Kansas, intersects said state line, thence through the county of Cass, via Harrisonville, through the county of Henry, via Clinton, and through the counties of St. Clair, Hickory, Cedar, Polk, and Green, to a point on the line of railroad of the Fort Scott, South Eastern & Memphis Railroad Company, about twenty miles westerly from Springfield in said county of Green, together with the necessary side tracks, turnouts, stations, and water-tanks, convenient for and appurtenant thereto.

"And your petitioner further shows that it needs and seeks to acquire for public use, and for the purposes aforesaid, the several parcels of land situate in the county of Cass and state of Missouri, described and owned as follows, to-wit, that is to say: [Parcels belonging to other owners, and not now in question in this case.] Third parcel: One hundred feet in width, in a general north-westerly and south-easterly direction, as said road is sought to be constructed over, through, and upon the north-west quarter of section nine, in township forty-five, of range thirty-one, according to the location of said railroad, and which is owned and claimed by said defendant Thomas R. Story. That there is a deed of trust of date June 16, 1883, of record against said land, executed by one O. H. Cogswell and wife, to defendant Leroy M. Sea, trustee, to secure six hundred and eleven and 37-100 dollars in favor of defendant Isaac N. Rogers, recorded in Book N, page 232, in recorder's office of said Cass county. [Other parcels belonging to other defendants, and not now in question.] That the one hundred feet in width in each of the foregoing parcels of land as specified is fifty (50) feet on each side of the center of said railroad, as indicated by stakes driven along the line of said road, and the map and profile thereof on file in the office of the clerk of the county court within and for Cass county, Missouri, and showing the location thereof.

"And your petitioner further says that it and the owners of said parcels of land, who are residents of the state of Missouri, cannot, nor can said petitioner and either of said owners, agree upon the proper compensation to be paid for said land, or any interest therein, which it seeks to acquire, although it has endeavored so to do.

"Your petitioner therefore prays for the appointment by said court, or by the judge thereof in vacation, of three disinterested freeholders, residents of said Cass county, as commissioners, or of a jury to ascertain and assess the damages which the owners of said several parcels of land may severally sustain as the just compensation to which they may severally be entitled in consequence of the construction, maintenance, and operation of said railroad and appurtenances as aforesaid, and the use and occupation thereof.

                                                            "WALLACE PRATT
                                                            "W. J. TERRELL, and
                                                            "C. W. SLOAN
                                                               "Attorneys for Petitioner."
                

And thereupon, on the 8th day of November, 1884, the judge of the Cass county circuit court in vacation, upon the hearing of said petition, appointed H. M. Bledsoe, William Kelly, and F. E. Bybee commissioners to assess the damages under said petition. And afterwards, to-wit, on the 15th day of November, 1884, the said commissioners filed their report. The report of the commissioners was as follows:

"We, the undersigned, H. M. Bledsoe, William Kelly, and F. E. Bybee, three disinterested freeholders, residents of the county of Cass, Missouri, appointed by the judge of said court in vacation on the 8th day of November, A. D., 1884, to view the lands hereinafter described, and return under oath an assessment of the damages which the owners of said land may severally sustain by reason of the taking, appropriation, and condemnation thereof by said petitioner for public use for the purposes of its railroad and appurtenances, and to ascertain the just compensation to be paid to the owners for the land so taken and appropriated, and being first duly sworn to faithfully and impartially discharge said trust reposed in us according to the best of our ability, as appears from our several affidavits herewith filed, respectfully return and report under oath: That on the 13th day of November, A. D. 1884, we viewed the lands hereinafter described, and ascertained the just compensation to be paid to the owners thereof for taking the same, and assess the damages which the said owners may and will severally sustain by reason of the taking, appropriation, and condemnation of such lands by the petitioner for public use for the...