Kirn v. Cape Girardeau & C. R. Co.

• Decision Date: 02 April 1907
• Citation: 124 Mo. App. 271,101 S.W. 673
• Court: Missouri Court of Appeals
• Parties: KIRN v. CAPE GIRARDEAU & C. R. CO.

101 S.W. 673

124 Mo. A. 271

KIRN v. CAPE GIRARDEAU & C. R. CO.

St. Louis Court of Appeals. Missouri.

April 2, 1907.

1. EMINENT DOMAIN — CONDEMNATION PROCEEDINGS — ABANDONMENT — DAMAGES — ATTORNEY'S FEES.

A railroad company commencing condemnation proceedings and abandoning and discontinuing them after assessment of the damages by the commissioners, at which time, under Rev. St. 1899, § 12, the company would have had the right of entry and possession, on paying the assessed damages into the hands of the clerk, with the right of either party to have the assessment reviewed on filing exceptions, is liable to the property owner for the expense of attorney's fees incurred by him in the proceedings.

2. SAME — LOSS OF TIME.

Under such conditions, it is also liable to him for his loss of time and earnings in attending on and looking after his interest in such proceedings.

3. SAME — INCURRING OBLIGATION FOR ATTORNEY'S FEES.

To entitle a landowner on abandonment of condemnation proceedings by a railroad company to recover of it his expenses for an attorney in such proceedings, it is not necessary that he shall have paid the attorney's fees, but it is enough that he has obligated himself in writing to do so.

Appeal from Circuit Court, Perry County; Chas. A. Killian, Judge.

Action by Frederick Kirn against the Cape Girardeau & Chester Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Giboney Houck, T. B. Whitledge, and Sam Bond, for appellant. James T. Greenwell and John J. Seibel, for respondent.

NORTONI, J.

The appeal is from a judgment of the circuit court overruling the defendant's demurrer to the plaintiff's petition. It is unnecessary to set out the petition in full, and, therefore, in the interest of brevity, we will recite the principal facts out of which the controversy arises, and direct attention to the objection leveled against the case as stated by the plaintiff in his pleadings.

The defendant is a Missouri railroad corporation, and was engaged in acquiring a right of way for its proposed road. Desiring a portion of plaintiff's lands for such purpose, and having failed to reach an agreement with him in respect to its purchase, it sought to exercise the right of eminent domain delegated to it by the state through the medium of the General Statutes, and to that end instituted its condemnation proceeding against the plaintiff, seeking to acquire such rights in his certain lands described in the petition. It filed its suit for the purpose in the office of the clerk of the circuit court of Perry county, in which county the proposed road was to be built and the lands were situate. Summons was duly issued thereon out of the office of the clerk of such court, and personally served, as is provided in section 1265, Rev. St. 1899 [Ann. St. 1906, p. 412], upon the plaintiff herein who was defendant in that proceeding. Said summons commanded the defendant therein to appear before the Hon. Robt. A. Anthony, judge of the Twenty-Seventh judicial circuit and ex officio judge of the circuit court of Perry county, on the 8th day of September, 1904, in vacation of the Perry circuit court at chambers in the city of Farmington, in St. Francois county, and then and there, before said judge to answer the petition, etc. In pursuance of such summons, both plaintiff and defendant appeared before such judge on said day, the present plaintiff appearing both in person and by counsel; and, the matter having been fully presented to the said judge, and he having ascertained that due notice had been given, etc., the said judge appointed three disinterested commissioners, freeholders, residents of Perry county, to assess the damages which would accrue, etc., in accord with section 1266, Rev. St. 1899 [Ann. St. 1906, p. 412]. The commissioners qualified according to law, viewed the lands, made the examination contemplated by the statute, etc., and forthwith returned their report under oath, in writing, signed and verified by them, setting forth the amount of damages ascertained and assessed against the railroad company and in favor of this plaintiff. After the filing of this report the proceeding was not further prosecuted by the railroad company, but, on the contrary, within 10 days after the filing of such report the railroad company, for some reason not disclosed in the petition, availed itself of its privilege under section 1266, supra, and elected to abandon the same, and to that end filed its proper instrument of writing to that effect in the office of the clerk of the Perry circuit court, and thereby abandoned and discontinued such condemnation proceeding. The petition very properly recites, in due form, the facts above stated, predicates thereon, and in substance alleges that the defendant railroad, by commencing, prosecuting and abandoning such condemnation proceeding, damaged this plaintiff and subjected him to great expense necessarily incurred in the protection of his rights protecting his property, etc.; that by reason thereof he was compelled to and did employ counsel to represent him therein; that such counsel represented him therein; that he has paid his said counsel $10 cash, and obligated himself in writing to pay his attorney the further sum of $85 on account thereof for legal services and advice rendered and given in and about such proceeding; that such amount of $95 is a reasonable and proper charge, made necessary by the commencement and prosecution of such proceeding; and, second, that because of such proceeding plaintiff was compelled to devote his time and attention to such suit for the space of five days, which time he lost from his farm labors and which time is of the reasonable value of $10, and on account of these items and the premises stated he prays judgment for $105. The court overruled defendant's demurrer to the petition, and the defendant appeals.

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