LeIsse v. St. Louis & Iron Mountain R.R. Co.

• Decision Date: 25 April 1876
• Citation: 2 Mo.App. 105
• Court: Missouri Court of Appeals
• Parties: AUGUST LEISSE et al., Appellants, v. ST. LOUIS & IRON MOUNTAIN RAILROAD COMPANY, Respondent.

2 Mo.App. 105

AUGUST LEISSE et al., Appellants,

v.ST. LOUIS & IRON MOUNTAIN RAILROAD COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 25, 1876.

1. The right of eminent domain resides in the State, and may be enforced, not only in behalf of the State, but of any artificial person clothed with a franchise the enjoyment of which promotes a public use.

2. The basis of the enforcement of the right of eminent domain is the necessity for the public use of the property the taking of which is sought.

3. If proceedings are instituted to condemn for public use the property of an individual, and, after the value of the property is ascertained by inquest, the proceedings are abandoned because the price assessed is unsatisfactory, the corporation instituting such proceedings will be answerable to the owner for all damages occasioned by them.

4. Where property against which proceedings to condemn for public use belonged to A and B, co-tenants, who, in resisting the proceedings, employed different counsel, who severally attended to the management of the cause, held, that it was error to permit them to sue jointly to recover damages for counsel fees, etc.

5. In an action to recover damages for the institution of proceedings to condemn private property for public use, money need not have been actually paid out to entitle plaintiff to recover; but, if a debt has been created by reason of such proceedings, a damage has been incurred for which an action will lie.

APPEAL from St. Louis Circuit Court.

General term affirmed and cause remanded.

E. T. Farish and F. & E. L. Gottschalk, for appellants, cited: North Missouri R. R. Co. v. Lackland, 25 Mo. 533; North Missouri R. R. Co. v. Reynal, 25 Mo. 534; Hill v. Gibbs, 5 Hill, 58; Stevenson v. Cofferin, 20 N. Y. 151; Add. on Torts, 67; Twist v. Benton, 15 Mo. 619; St. Joseph v. Hamilton et al., 43 Mo. 282; Rogers v. Hug, 44 Mo. 116; Dill. on Mun. Corp., sec. 474; Laughlin v. Municipality, etc., 5 La. An. 504; State v. Grover, 19 Md. 375; 31 Pa. St. 19; Graff v. Mayor of Baltimore, 10 Md. 554.

Thoroughman & Warren, for respondent, cited: Sedgw. on Dam. (6th ed.) 125; 1 Redf. on Rys. 245, ch. 11, p. 277, et seq.

GANTT, P. J., delivered the opinion of the court.

The St. Louis & Iron Mountain Railroad Company, on July 23, 1872, commenced proceedings to condemn the land of appellants, for the purposes of the railroad. Its proceeding was by petition, which alleged that it had become necessary, and the public convenience required, that a branch should be built along said road in the city of St. Louis, from the corner of Convent and Main streets to the northwest corner of block 73, being the intersection of the east line of Fourth street with the south line of Chouteau avenue; and that for this purpose it was necessary for the railroad to acquire the property of the present plaintiffs, Leisse and Lange.

In this proceeding, either by condemnation or purchase, the railroad acquired all the property necessary for the proposed line east of Third street. As respects the property of Leisse and Lange, an award was made by the commissioners appointed by the court, to which the railroad excepted, and the court set the same aside and ordered a new appraisement to be made by a jury. Thereupon the railroad dismissed or discontinued the proceedings commenced to procure the land the acquisition of which by it had been alleged to be necessary for the public use. This was done December 19, 1873.

Thereupon Leisse and Lange, proprietors of the land thus indicated as necessary for the public use, brought their action to the April term, 1874, against the railroad company, to recover damages by them sustained by reason of the proceedings for condemnation. The elements of these damages were that, prior to the institution of the proceedings, the railroad company had given out that it proposed to, and would, locate its road over and across the lot of Leisse and Lange; that, in consequence of this announcement, they were unable “for years to lease, improve, or in any manner use and employ” their land; that they were themselves compelled to lease and rent other property; that, during the pendency of this suit, the said land was virtually condemned, idle, useless, subject to the payment of taxes by Leisse and Lange, and to the loss of interest on the money therein invested; that, by said proceedings, it was rendered unsalable; that the appellants were put to much trouble, expense, and annoyance by said proceedings; were obliged to fee counsel for about eighteen months, at great cost, and for all this they claimed $10,000 damages.

To this petition a demurrer was filed, assigning as reasons therefor that the plaintiff did not state facts sufficient to constitute a cause of action, and that the petition did not charge defendant with the doing of any unlawful thing or the omission of any duty.

The Circuit Court, in special term, overruled this demurrer. Defendant declined to plead further, and there was an inquiry of damages, after which, due exceptions being saved, the case was taken by appeal to the general term, where the judgment of the special term was reversed.

At the inquiry much evidence was given of the particulars of damage, and the court laid down the following rules for the guidance of the jury:

“The jury are instructed that, in assessing plaintiffs' damages, they may take into consideration, as elements of damage, the rental value of the property from 23d July, 1872, till 19th December, 1873, and the loss, if any, to plaintiffs of rent of said premises during that period, caused by virtue of the proceedings mentioned in the petition; also, the loss of time of plaintiffs necessarily employed in attending court, and giving attention to said proceedings mentioned in the petition; and, also, the expense of counsel or attorneys employed in defending said proceedings.”

The railroad company excepted to this instruction, and asked the following, which the court refused, against defendant's exception:

“The court instructs the jury that the evidence shows that the plaintiffs have not paid anything for services of their attorneys in defense of the condemnation proceedings complained of, and that, therefore, in assessing damages in this case, the jury are not warranted in allowing plaintiffs, on the score of attorneys' fees, more than nominal damages--that is, not exceeding one dollar.

The complaint of the plaintiffs is for a joint or common injury to them, and the jury are, therefore, directed that, as to any damages sought on account of the several obligations of the plaintiffs for several attorneys' fees, and on account of time spent by the plaintiffs severally in and about the defense of the condemnation proceedings, the plaintiffs cannot recover in this cause, and as to such several injuries the jury are not warranted in taking the same into consideration in making their assessment of damages.

The court instructs the jury that there is no evidence before them to show that the plaintiffs sustained any actual damage by reason of the institution and prosecution of the proceedings complained of, and that it is the duty of the jury, therefore, to assess nominal damages only to the plaintiffs, or a sum not exceeding one dollar.”

There was evidence at the inquest as to the value of counsel fees. It appeared that Leisse had employed one firm and Lange another. These two charged $500 each. The fees had not been paid, but were charged against Leisse and Lange, and they owed them respectively.

Lange testified that the lot was ninety-five feet on Third street by 147 feet on Chouteau avenue, and was held by him and Leisse as co-tenants. Lange was a banker, Leisse was a lumber merchant. The lot was bought in 1869. It was vacant in 1872. The proceedings made the property almost unsalable. The court excluded all evidence of the threats of the railroad company to take the land prior to the actual commencement of proceedings, and the witness went on to say that their commencement hindered the improvement and use of the property, and that when the proceedings were dismissed, in September, 1873, the value of the property was less than it was in July, 1872. It was unsalable in December, 1873. It was in demand in July, 1873, and before that time. The annual taxes were about $210. Lange estimated his own time to be worth $1,000. The rental (annual) value of the property was from 6 to 8 per cent. of its money value in fee.

Leisse gave similar evidence. The points made for a reversal of the judgment of the general term are:

1. That the petition disclosed a cause of action.

2. That the rule of estimating damages indicated by the Circuit Court at special term was correct.

1. The question presented by the demurrer to the petition is important and interesting. The right of eminent domain is a transcendent right. It is indispensable to the administration of government; for sometimes the legitimate operations of government may be embarrassed by unreasonable and perverse refusal of individuals to part, on fair terms, with property imperatively needed for public use, and the power to compel such individuals to give up their property, on receiving its fair equivalent, must reside somewhere, or there is danger of an absolute interruption of measures essential to the common weal. So much is undeniable; but, while the existence and use of this right are admitted to be inherent in the very nature of government, it is not to be doubted that there has been so much oppression and spoliation perpetrated by the abuse of it as to bring the power itself into serious disfavor with unreflecting men.

It is a very trite observation that necessity knows no law, and that its existence is a justification for that to which it compels individuals and society; but, while this is admitted, the warning is forcibly conveyed to both to be above all things careful to see that necessity, and not some pretense of necessity, actually exists. Our statute books are...