Kansas City, Clinton & Springfield Railroad Co. v. Story

• Decision Date: 20 December 1888
• Parties: The Kansas City, Clinton & Springfield Railroad Company v. Story, Appellant
• Court: Missouri Supreme Court

10 S.W. 203

96 Mo. 611

The Kansas City, Clinton & Springfield Railroad Company v. Story, Appellant

Supreme Court of Missouri

December 20, 1888

[Copyrighted Material Omitted]

Appeal from Cass Circuit Court. -- Hon. Hoah M. Givan, Judge.

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

"The petition of the Kansas City, Clinton & Spring-field 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-gauge railroad in the counties of Cass, Henry, St. Clair, Hickory, Cedar, Polk and Greene, 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 Greene 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 Greene, together with the necessary side-tracks, turn-outs, 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 northwesterly and southeasterly direction, as said road is sought to be constructed over, through and upon the northwest 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 thirty-seven one hundredths dollars in favor of defendant, Isaac N. Rodgers, 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 centre 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 therefor."

And thereupon on the eighth 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 Kelley and F. E. Bybee commissioners to assess the damages under said petition. And afterwards, to-wit, on the fifteenth day of November, 1884, the said commissioners filed their report as follows:

"We, the undersigned, H. M. Bledsoe, William Kelley 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 eighth 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 thirteenth 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 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 purposes of its railroad and appurtenances, and set forth and state the compensation and damages allowed each owner separately as follows, to-wit (parcels belonging to other owners): Third parcel: one hundred feet in width in a general northwesterly and southeasterly direction as said road is sought to be constructed and is located over, through and upon the northwest quarter of section nine (9), in township forty-five (45), of range thirty-one (31); that compensation shall be paid, and damages are allowed in the sum of four hundred and ten dollars to the owners thereof, said defendants, Thomas R. Story. [Other parcels belonging to other defendants.]

"A plat of said lands so taken and hereinbefore particularly described, is hereunto annexed, and made part of this report." Which report was duly signed and sworn to.

Attached to this report was the following plat:

TOWNSHIP NO. 45, RANGE 31, IN CASS CO., MO.

[SEE ILLUSTRATION IN ORIGINAL].

Reversed and remanded.

Gates & Wallace for appellant.

(1) The defendant was entitled to have the report of the commissioners set aside and a jury trial ordered as a constitutional right. Const. of Mo. art. 12, sec. 4; Railroad v. Almeroth, 13 Mo.App. 91. (2) The defendant did not waive a jury by not objecting to the appointment of commissioners. This could not be done except by an express waiver entered on the record. The point is raised by motion in arrest without any objection having been made and saved. R. S. 1879, sec. 3602; Railroad v Almeroth, 13 Mo.App. 91; Cox v. Moss, 53 Mo. 432; Brown v. Railroad, 37 Mo. 298; Vaughan v. Scale, 30 Mo. 600; Scott v. Russell, 39 Mo. 407; Pusy's Appeal, 83 Pa. St. 67; Lamb v. Lane, 4 Ohio St. 167; Whitehead v. Railroad, 28 Ark. 460; Campau v. Detroit, 14 Mich. 276; Railroad v. Foreman, 24 W.Va. 662; People v. McRoberts, 62 Ill. 38; Kine v. Defenbaugh, 64 Ill. 291. (3) All the farm belonging to the same owner and included in one tract must be included in the assessment whether embraced in the petition or not. Railroad v. Calkins, 90 Mo. 538; Railroad v. Waldo, 70 Mo. 629; Railroad v. Ridge, 57 Mo. 599; Railroad v. Murphy, 19 Minn. 500. (4) The description in the petition and the report of the commissioners must give the boundaries and courses and distances of the tract taken. R. S. 1879, secs. 892, 894; Railroad v. Porter, 29 Pa. St. 165; O'Hara v. Railroad, 25 Pa. St. 445; Railroad v. Bruner, 55 Pa. St. 318; Vail v. Railroad, 1 Zabr. [N. J.] 189; Lewiston v. Commissioners, 30 Me. 19; Conners v. Railroad, 18 Mich. 459. (5) The record of the condemnation proceedings and the maps to which it refers for description constitute the muniment of title, and the only and conclusive evidence thereof, between the railroad company and the land-owner; and these must be sufficiently certain and definite to locate the exact strip of land taken. Hazen v. Railroad, 2 Gray, 574; Matter of Railroad, 70 N.Y. 191; Railroad v. Carter, 85 Mo. 448; Kolhepp v. West Roxbury, 120 Mass. 599; Macon v. Owen, 3 Ala. 116; Rice v. Railroad, 7 Dana, 81; Railroad v. Newsom, 54 Ind. 121; Matter of Application of Railroad, 90 N.Y. 342; Glover v. Boston, 14 Gray, 282. (6) Cuts and fills are an element of damage, and should be taken into consideration by the commissioners. Smalley v. Railroad, 36 Iowa 571; Walker v. Railroad, 103 Mass. 10; Pelegar v. Railroad, 28 Minn. 51; Railroad v. Orr, 8 Kan. 419; Nason v. Railroad, 4 R. I. 377; Thompson v. Railroad, 27 Wis. 93; Price v. Railroad, 27 Wis. 98; Railroad v. Doughty, 2 Zabr. 495; Railroad v. Stauffer, 60 Pa. St. 374; Patton v. Railroad, 33 Pa. St. 426; Mills on Eminent Domain, secs. 166, 189. (7) When the commissioners have erred in the principles upon which they have made their appraisal the report should be set aside. Railroad v. Campbell, 62 Mo. 585; Railroad v. Brickett, 62 Ill. 332.

Wallace Pratt and W. J. Terrill for respondent.

(1) The defendant was not entitled to have the report of commissioners set aside and a jury trial ordered as a constitutional right. Const. Mo., art. 2, sec. 21; R. S 1879, secs. 894, 896; Railroad v. Brick Company, 85 Mo. 307; 1 Wag. Stat. sec. 4, p. 328; Railroad v. Richardson, 45 Mo. 466; Railroad v. Robinson, 45 Mo. 483; Bridge Company v. Ring, 58 Mo. 491; Railroad v. Almeroth, 62 Mo. 343; Railroad v. Muder, 49 Mo. 166; Macadamized Road Co. v. Dennis, 67 Mo. 438; Laws 1873, p. 24; ...