Kansas City, St. Louis & Chicago R.R. Co. v. Farrell

• Citation: 76 Mo. 183
• Parties: THE KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant, v. FARRELL.
• Decision Date: 31 October 1882
• Court: United States State Supreme Court of Missouri

76 Mo. 183

THE KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant,

v.FARRELL.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Gates & Wallace for appellant.

If there are peculiar benefits, which defendants' land derives from the road, then certainly they should be considered, although some of his neighbors, whose lands are also taken, should likewise be benefited; and the rule is thus explained by the first instruction asked for by plaintiff, and which the court refused to give. Garnett v. St. Louis, 25 Mo. 505; L. & F. P. R. Co. v. Pickett, 25 Mo. 535; Newby v. Platte Co., 25 Mo. 258; Pacific R. R. Co. v. Chrystall, 25 Mo. 544; Lee v. R. R. Co., 53 Mo. 178. The defendants having no permanent or substantial right to the pass-way crossed by plaintiff's railroad, were, therefore, not entitled to any damages on this account, and plaintiff's second instruction should have been given. Bachelder v. Wakefield, 8 Cush. 243, 251; Mulford v. Pratt, 4 Pick. 222; Gayetty v. Bethaum, 14 Mass. 50; Tickel v. Brown, 4 Ad. & E. 369; Hall v. McLeod, 2 Metc. (Ky.) 98; Polly v. McCall, 37 Ala. 20; Dodge v. McClintock, 47 N. H. 387; Holdane v. Coldspring, 23 Barb. 103; People v. Jackson, 7 Mich. 432; People v. Tilman, 12 Mich. 400; Fuhr v. Dean, 26 Mo. 116; Washburn on Easements, (3 Ed.) 5, 6, 24, 133, 182. A licensee can maintain no action, and is entitled to no damages because his enjoyment is interfered with by a third party. Commissioners v. Wood, 10 Pa. St. 97; Ottawa Gas Co. v. Thompson, 39 Ill. 598; Hill v. Tupper, 2 H. & Colt. 121; Ackroyd v. Smith, 10 C. B. 164; Washburn on Easements, 688. The court should have permitted witness Massie to testify as to the admissions of the defendant as to what the defendant considered he was damaged by the railroad, and in what his damages consisted. Massie was not trying to effect a compromise. Ashlock v. Linder, 50 Ill. 169; Springfield v. Schmook, 68 Mo. 394.

Comingo & Slover for respondents

The instructions given by the court cover the whole case, and correctly declare the settled law of this State on that subject. Newby v. Platte Co., 25 Mo. 258, 505, 515; Lee v. R. R. Co., 53 Mo. 178; Hannibal Bridge Co. v. Schaubacker, 57 Mo. 583; Mississippi Bridge Co. v. Rung, 58 Mo. 491. The testimony of Massie, offered to prove the statements of Joseph Farrell made at the time Massie was trying to effect a compromise between the appellant and respondents as to the right of way, was inadmissible generally, and especially against the respondent Celia Farrell, the owner of an undivided half of the farm. 2 Whar. Ev., § 1090; Ferry v. Taylor, 33 Mo. 323. Appellant's second instruction is not the law, and if it were, there is no evidence in the case to support it. All of the witnesses testified that the lane or passage-way had been, by consent of all the owners of property adjoining it, open to, and used by the public since 1860, and hence is a public highway. State v. Wells, 70 Mo. 637; State v. Culver, 65 Mo. 607; State v. Walters, 69 Mo. 463.

HENRY, J.

This was a proceeding under the statute, to appropriate for right of way for plaintiff's road, a portion of defendants' farm. Commissioners were appointed who allowed defendants $400. They filed exceptions to the commissioners' report, and in March, 1879, there was a trial by jury, who allowed defendants $800, and from the judgment on that verdict, plaintiff has appealed. The following facts were established by the evidence: Defendants' farm consists of sixty-one acres under fence, and lies about one and a quarter miles from the town of Independence, Missouri. The plaintiff's road makes a cut through the land, thirteen feet deep where it enters the land and about nineteen feet deep just north of the dwelling. It is less than fifty feet from the dwelling house to a right of way claimed by defendants, which is the only approach to the house from the public road, and is crossed by plaintiff's road. This approach is a lane which has been used by those owning the lands west of it, and whoever else had occasion to pass over it, since 1860. An application to the county court of Jackson county to have it declared a public county road, had been refused, and in the language of one of the witnesses, Mr. Proctor, “it had no legal status.”

It seems that in 1860, the heirs of Wood Noland owned a tract of land, embracing what is now known as the Higbee tract, and laid it off in eleven lots, six of which, from one to six inclusive, were purchased by Higbee, and by the plat, which was duly acknowledged and recorded by the said heirs, a street forty feet wide was reserved between lots 2, 3, 4 and 5, running to the public road east. Shortly after Higbee purchased his lots, he proposed to Noland, who owned the balance of the lots, and Wm. B. McBride, who owned the land lying west of and adjoining the Noland tract, including the Farrell tract, to close up the street reserved and open one of equal width on the west side of his land between him and Noland and McBride, giving them an out-let to a county road running east and west. They agreed to the change, and it was thus made. Less than one-third of an acre, of defendants' land was taken by the plaintiff for its road. Defendants' damages were variously estimated by their witnesses at from $700 to $1,100. Plaintiff's witnesses testified that defendants had sustained no damage from the construction of the road through their land.

For defendants the court gave the following instruction:

1. In estimating the damage to the land in controversy, the jury will consider the quantity, quality and value of the land taken or damaged by the railroad company, and the damages to the whole tract by reason of the construction of said road and the running of the same through it in the usual and ordinary manner, and deduct from these amounts the benefits, if any, peculiar alone to said tract of land arising from the running of said railroad through the same; and by peculiar benefits to that land, is meant such benefits as that land alone derives from the location of said road through it, as are not common to the other lands in the same neighborhood.

2. If the jury believe from the evidence that the defendants' farm has been injured by the plaintiff's railroad running through it, but owing to the benefits that said land enjoys in common with other land in the same neighborhood derived from said railroad, the defendants' farm is worth as much or more after said road passes through it as before, and they further believe there are no benefits peculiar to said land, then they will find for the defendants and estimate their damages by considering the value, quantity and quality of land taken by the plaintiff for right of way and the full damages to the whole farm by reason of the construction of said road and the running of the same through it.

3. Although the jury may believe from the evidence that the farm of defendants has been benefited by the location of plaintiff's railroad across it, yet unless they believe from the evidence that said farm enjoyed a special or peculiar benefit not enjoyed in common with other lands in the neighborhood, they will find for the defendants, and assess their damages at such sum as they may believe from the evidence they have sustained by the location and construction of said railroad across their farm, not exceeding the amount claimed by the defendants.

4. If the jury believe from the evidence that the road or lane by which defendant Joseph Farrell has access to the lands described in the petition, reply and exceptions in this cause, has been opened to the public and in the uninterrupted use of the public for the purpose of travel since the year 1861, and that it was opened as such by Chas. Higbee, the then owner of the land on which it is located, or was opened by his request or permission, and used as aforesaid in lieu of the street laid out and designated in the plat of the subdivision of the Noland farm read in evidence and dedicated by said plat as a street, and that said street has, during said time, been inclosed and occupied by said Higbee and those claiming under him, they are instructed that these facts are sufficient to constitute, and do in law constitute, said road or lane a public highway.

The following asked by plaintiff were refused:

1. In estimating the damages to the land in controversy, the jury will consider the quantity and value of the land taken by the railroad...