Louisiana & Frankford Plankroad Co. v. Pickett

• Citation: 25 Mo. 535
• Parties: LOUISIANA & FRANKFORD PLANKROAD CO., Respondent, v. PICKETT, Appellant.
• Decision Date: 31 October 1857
• Court: Missouri Supreme Court

25 Mo. 535

LOUISIANA & FRANKFORD PLANKROAD CO., Respondent,

v.PICKETT, Appellant.

Supreme Court of Missouri.

October Term, 1857.

1. The eighth section of the “Act to authorize the formation of associations to construct plankroads and macadamized roads,” approved February 27th, 1851 (Sess. Acts, 1851, p. 259), is in conformity to the constitution in so far as it authorizes the jury appointed to assess the damages received by the land owner, to take into consideration the “advantages of said road to said owner.”

2. The “advantages” which may be taken into consideration in determining the ““““just compensation” to which the land owner is entitled, are the direct and peculiar benefits or advantages accruing to him in particular in respect of the residue of his land unappropriated, and not any general benefit or increase of value received by such land in common with other lands in the neighborhood.

3. The provision contained in the eighth section of the “Act to authorize the formation of associations to construct plankroads and macadamized roads” (Sess. Acts, 1851, p. 259), authorizing the appointment of a “jury of five disinterested land owners of the county to assess the damages,” etc., is in conformity with the constitution; they do not perform the proper and usual functions of a jury in civil or criminal cases.

Appeal from Pike Circuit Court.

The facts sufficiently appear in the opinion of the court.

E. Hunt, for appellant.

I. The “just compensation” to which the defendant was entitled was the value of the land taken, without regard to any supposed advantages of the road to the defendant. (Constitution, art. 13, §7.)

II. This value should be assessed by a jury of twelve men.

III. The proceedings are also erroneous and void, because they do not show what quantity of land has been taken for the road; how wide a strip or how long; or where it enters or leaves the quarter section; nor is there any description separating it from the land not taken for the road.A. H. Buckner, for respondent.

I. No exceptions were taken to the direction of the court to the jury as to the mode of assessment; nor was the objection made before the jury.

II. The road had been surveyed and located, and the petition states the quarter section through which the road is located; so that if the award of the jury does not specify the particulars, they can be made perfectly certain. “That is certain which can be made certain.” (4 Whart. 47.)

III. The act is constitutional so far as it authorizes the advantages to be set off against the injury sustained. (8 Barr. 445; 13 Barb 169; Whitman v. Wilmington R. R. Co., 2 Harring. 514.) Damages may be assessed in any fair and equitable way without a jury. (Gardner v. Newburg, 2 Johns. Ch. 162; Jackson v. Winn, 4 Litt. 323; 2 Mass. 489; 4 Whart. 47.)

NAPTON, Judge, delivered the opinion of the court.

The application of the plankroad company to the justice, in this case, stated that the road, as surveyed and located by their engineer and adopted by their board of directors, ran over the defendant's land, and the quarter section occupied and owned by the defendant is particularly described; but the exact route of the road is not specified any further than by reference to the survey of the engineer, which was not made a part of the petition nor filed with the papers.

In the Circuit Court, to which the case ultimately went by appeal, a jury of five men was ordered, and it was agreed that their sealed verdict should be filed in vacation and a judgment entered thereon by the court. At the first term of the court after the verdict was rendered, a motion was made to set aside the proceeding and dismiss the case, 1st, because the 8th section of the act of February 27th, 1851, entitled: “An act to authorize the formation of corporations to construct plankroads and macadamized roads,” was unconstitutional; 2d, because a jury of five men instead of twelve were appointed; 3d, because the jury were directed to allow advantages to set off the value of the land; 4th, because the application to the justice was not specific enough in relation to the exact position and quantity of the land desired to be condemned.

Upon this motion all the proceedings before the justice, and the appointment of a jury or commissioners by the Circuit Court, and the instructions of the court to the commissioners, were submitted to the court, and the motion overruled and bill of exceptions taken. The instructions thus referred to in the bill of exceptions are as follows: “The jury shall go upon the land over which the road is proposed to run, and shall assess the damages sustained by said Pickett, taking into consideration the advantages, if any, which said road may be to said Pickett, and the jury shall make out in writing their verdict and all shall sign it, and it shall be sealed and delivered to the clerk by one of the jurors.”

The point in relation to the constitutionality of the law in question has been already considered and decided by this court in the case of Newby v. Platte County, 25 Mo. 258. The instruction given by the court was erroneous in not restricting the jury to such direct and peculiar benefits or increase of value as were occasioned to that part of Pickett's land not taken for the road, and directing them to discard from their consideration any general benefit or increase of value received by such land in common with other lands in the neighborhood. This has been determined to be the proper construction of this and...