McCord v. Doniphan Branch Ry. Co.

• Citation: 21 Mo.App. 92
• Parties: M. D. L. MCCORD, Respondent, v. DONIPHAN BRANCH RAILWAY COMPANY, Appellant.
• Decision Date: 23 February 1886
• Court: Court of Appeal of Missouri (US)

21 Mo.App. 92

M. D. L. MCCORD, Respondent,

v.DONIPHAN BRANCH RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1886.

APPEAL from the Ripley County Circuit Court, JOHN G. WEAR, Judge.

Reversed nisi.GEORGE H. BENTON, for the appellant: The admission in the first count of a voluntary grant of the right of way implies the grant of everything necessary and proper to the construction of the railway, including even the alleged violation of plaintiff's proprietary rights set up in the petition. Rev. Stat., sect. 765; Pierce on Railroads, 132-134; Redf. on Railroads (5 Ed.) 235; Babcock v. Railroad, 9 Met. 553; Rorer on Railroads, 513; Railroad v. Ruggles, 7 Ohio St. 1; Harrison v. Railroad, 9 B. Mon. 470; Munkers v. Railroad, 60 Mo. 334. The second instruction refers the jury to the pleadings to find the issues, and the allegations of the petition so referred to are broader than the proof. Remmeler v. Shenuit, 15 Mo. App. 192; Edelman v. Transfer Co., 3 Mo. App. 505.

DRYDEN & DRYDEN, with THOMAS MABREY, for the respondent: Errors not complained of in the motion for a new trial will not be reviewed on appeal. Holladay v. Langford, 13 Mo. App. 594; Hildreth P. Co. v. Stokes, 14 Id. 591; Dailey v. Singer Man'f'g Co., 14 Id. 597.

THOMPSON, J., delivered the opinion of the court.

This was an action for damages alleged to have been done to the plaintiff's land by the defendant in constructing its railroad over the same. The petition contained two counts. The first asked damages in the sum of one hundred dollars, for digging up and carrying away from the plaintiff's land a large quantity of earth outside of the right of way which had been granted and voluntarily conveyed to the defendant. The second demanded one hundred dollars damages for taking and carrying away large quantities of earth outside of the defendant's right of way, and piling the same on cleared and fenced land of the plaintiff, so as to prevent the cultivation of the same. The answer was first a general denial, and then a separate answer to each count of the petition. There was a trial before a jury, and a verdict for the plaintiff in the sum of one hundred dollars under the first count, and thirty dollars under the second count.

I. The first point made by the appellant is that the petition states no cause of action. This contention is predicated upon the admission in the petition that the plaintiff had voluntarily granted to the defendant a right of way over the land in question, and that the petition fails to allege that the acts complained of were negligently and improperly done, or were unnecessary to the construction of the defendant's railroad. It is too plain for argument that there is nothing in this point. The petition admits the granting of a right of way to the defendant; but the damages claimed in each count are for injuries to the land outside of the right of way. There is nothing in section 765, Revised Statutes, which justifies a railway company in taking or injuring land outside of its right of way, without making just compensation to the owner, although such taking or injuring might be necessary to the proper construction of its railway; and if there were such a statute, it would be unconstitutional. Const. Mo., art. 2, sect. 21.

II. The next point made by the appellant is that the court erred in the first instruction given to the jury, which was as follows: “The court instructs the jury that the plaintiff, from the admission of the defendant, is entitled to judgment for the amount of damages by the plaintiff alleged, to-wit, the sum of one hundred dollars in the first count.” This manifestly refers to the admission contained in the answer to the first count in the petition, which was as follows: “For a further answer and defence to plaintiff's first count in his said petition, defendant alleges that plaintiff, for a good and valuable consideration, by deed, did give, grant, sell, relinquish, and convey to defendant the right of way over and across the lands in plaintiff's petition described of one hundred feet in width, with the power and authority and right of increasing the width for necessary slopes and embankments and turnouts, and the additional right of borrowing or wasting earth or stone for the purpose of constructing said road-bed of defendant, over, through, or upon any tract of land belonging to plaintiff; that, under the power and authority so granted by said deed, defendant constructed and built its road-bed over and across the land in question, and took whatever earth was necessary for the same, so granted by plaintiff, and for which plaintiff received full and adequate compensation; wherefore defendant asks for judgment on said first count.”

We are of opinion that this ruling was erroneous. It is true that it is a principle of pleading under our code that the defendant can not deny and at the same time confess and avoid the allegations in the petition. Atteberry v. Powell, 29 Mo. 429; Coble v. McDaniel, 33 Mo. 363; Adams v. Trigg, 37 Mo. 141; Darrett v. Donnelly, 38 Mo. 492. As his pleading is taken most strongly against himself, if, after a denial, he confesses and avoids, his confession will be taken as true, and under it, the plaintiff will be entitled to a verdict for some damages, unless the defendant prove the matter of avoidance. But in such a case the plaintiff will not, upon the mere admission contained in the pleading, be entitled to recover more than nominal damages, unless the pleading in terms admits the value or damages which the plaintiff claims, or some other value or...