Kansas City Southern Ry. Co. v. Anderson

• Decision Date: 23 November 1908
• Citation: 113 S.W. 1030
• Parties: KANSAS CITY SOUTHERN RY. CO. v. ANDERSON.
• Court: Arkansas Supreme Court

Page 1030

113 S.W. 1030

KANSAS CITY SOUTHERN RY. CO. v. ANDERSON.

Supreme Court of Arkansas.

November 23, 1908.

Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.

Condemnation proceedings by the Kansas City Southern Railway Company against D. A. Anderson. From a judgment awarding defendant less damages than he demanded, both parties appeal. Affirmed.

S. W. Moore and Read & McDonough, for appellant. Ira D. Oglesby, for appellee.

HILL, C. J.

The railway company filed suit for the condemnation of the lots in the city of Ft. Smith belonging to D. A. Anderson. The defendant answered in several paragraphs. Only parts of it are material on this appeal. He alleged that the property was occupied and used by him as a manufacturing plant, for the manufacture of finished lumber and mill products, and as a planing mill and lumber yard, upon which was located and used in said business valuable machinery; that the property had a peculiar value as a site for such business. He alleged that the total value of his property sought to be taken was $18,000, and that, after purchasing said land for a manufacturing site, it was essential, in order to use the same to better advantage, that he should erect necessary and suitable buildings and place therein necessary machinery, all of which was done; that the buildings were erected and machinery placed therein and attached thereto, not to be removed therefrom, but as a permanent plant, and with the intent and purpose that same should remain and become a permanent accession to the freehold. He also alleged that at the time the petition was filed he had a large stock of lumber to be manufactured into dressed and finished lumber, and that said stock could not be used or sold in its present condition without great damage and loss, and that to remove it to a new location would cost him $800, and without being manufactured he would suffer great loss upon it. He prayed for special damages in the sum of $800 as a fair and reasonable cost and expense of moving the same. The issues went to a jury, and under directions of the court to make special findings they returned a verdict for $12,000, dividing it as follows: $6,000 for the lots, $2,800 for the machinery, and $3,200 for the buildings on the lots. Upon this verdict the court rendered judgment for $12,000, and the railroad company has appealed.

1. The first error assigned is in defendant's counsel reading to the jury from the first paragraph of the answer. This paragraph had been stricken out by the court prior to the trial. It contained many matters irrelevant to the issues, but contained allegations of other matters which might have been competent testimony. The record merely shows this: "Counsel for the plaintiff objected to counsel for the defendant reading from the first paragraph of the answer in this case and making a statement of the proof purposed to be introduced upon that point. Objection overruled by the court, and plaintiff excepted." If any part of the paragraph stricken out contained any matter which would be proper to prove, then this record shows no error, because it does not show what part he read from or made a statement of the proof purposed to be introduced under it. There are allegations in it which might not have been improper to have mentioned in an opening statement, one of which was referred to by appellee's counsel at the bar, and there may be others not prejudicial. If it had been certain other irrelevant matters in the stricken out paragraph, certainly it would have been improper for counsel to have read them or offered to have proved them. This exception fails to lay its finger on the error.

2. The defendant offered evidence as to the character of the machinery and improvements on the property tending to show that the same were intended to be permanent. This was objected to by the plaintiff and the court said: "You are seeking to condemn these two lots and not the improvements. If the improvements are a part of the realty, you condemn them; and, if they are not a part of the realty, you do not condemn them, and they may be moved off." This was a correct statement of the case, and the court then properly permitted evidence to develop whether the machinery was an irremovable fixture or personalty. It was shown that the building was built for the purpose of installing this machinery for a planing mill, and for this purpose exclusively; that good machinery was put in and securely fastened to the buildings, and a basement was constructed in which it rested; that it was built in this manner for the purpose of attaching it permanently to the soil, and that Anderson intended to continue in this business at this place as long as he lived, and afterwards to turn it over to...