McElroy v. Kansas City & I. Air Line.

• Decision Date: 03 February 1903
• Parties: McELROY v. KANSAS CITY & I. AIR LINE.
• Court: Missouri Supreme Court

72 S.W. 913

172 Mo. 546

McELROY v. KANSAS CITY & I. AIR LINE.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

RAILROADS—RIGHT OF WAY—CONTRACT—CONSTRUCTION—ABANDONING PART OF CASE.

1. Although a petition in an action to recover payment for land taken by a railroad company for right of way also alleged damages to the remainder of the tract, yet, if plaintiff failed to introduce proof of such damages, he thereby waived that part of his case.

2. A railroad company contracted with a property owner that on payment of a bonus the company was to have license to continue the construction of its road over his premises in advance of acquiring title, which was to be done either by a subsequent agreement or by condemnation proceedings, and that in such condemnation the property owner was to be paid "the value of the bridge abutments on his land, as well as for the land taken," and the bonus paid was not to be considered in any manner. Held, that under this contract the owner of the land was entitled to recover the value of the land taken irrespective of any special benefits to the rest by reason of the construction of the road; no damages therefor being sought.

3. A railroad company had entered on the land of another and commenced to construct its road, when work was stopped by an injunction. Thereupon the company and the property owner entered into a contract whereby the company obtained license to continue the construction of the road, and agreed to pay for the land taken; the compensation to be determined on at a future date. This was never done, and the property owner brought suit to recover the land. Held, that the value of the land was to be ascertained as of the date of the company's entry thereon.

Appeal from Circuit Court, Jackson County.

Action by Hugh L. McElroy against the Kansas City & Independence Air Line. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action bottomed on a contract for the value of a strip of plaintiff's land taken by defendant for railroad purposes, and also the value of certain stone abutments, situated on the land taken, and used by defendant in the construction of its railroad. In December, 1891, the defendant company, without the consent of plaintiff, entered upon the strip of land in question and began the construction of its road across it, whereupon plaintiff began suit by injunction against defendant to prevent it from proceeding with the work. Thereafter, on December 31, 1891, plaintiff and defendant entered into a written contract, which is as follows:

"It is agreed between Hugh L. McElroy and the Kansas City & Independence Air Line, a railroad corporation, that:

"First. In consideration of a bonus of seven hundred and fifty dollars ($750) to said McElroy paid by said corporation, the receipt of which is hereby acknowledged, said McElroy hereby waives the right to sue said railroad company, its agents, servants, or contractors, for trespass in entering upon and constructing its railroad across and over the lands belonging to said McElroy, mentioned and specified in suit No. 13,055 in division No. 1 of the circuit court of Jackson county, Missouri, and further hereby gives license to said railroad company, its agents, servants, or contractors, to enter upon his (the said McElroy's) land in Jackson county, Missouri, on which said corporation's railroad has been located, and to construct, maintain, and operate its railroad thereon, in advance of acquiring title to said lands for that purpose, either by agreement with the said McElroy or by condemnation proceedings; but no title to said lands shall pass to said corporation until the same shall be so acquired, either by agreement or condemnation, as aforesaid.

"Second. Said McElroy shall dismiss his injunction suit' now pending against said railroad, and said corporation shall waive all damages and right of action on the injunction bond, and shall dismiss its suit for condemnation now pending against said McElroy, and shall commence no new suit for condemnation of right of way until after the 15th day of April, A. D. 1892, without further attempt to agree with the said McElroy, his heirs or assigns, as to compensation as aforesaid, and not then within that period if the said McElroy shall not before the 15th day of April return to Jackson county, Missouri, so as to give the matter his personal attention; but, should no agreement be had between the parties before the said 15th day of April, then the said railroad corporation may at any time after the said date, or after the said McElroy returns and the said parties cannot agree as to compensation, bring suit for a condemnation of right of way across the lands of said McElroy, and the said McElroy hereby agrees to enter his appearance in said suit without further service of notice of said condemnation proceedings, and the said suit shall then proceed, whether or not the said McElroy is present. It is hereby further agreed that no allowance shall be made in favor of said corporation by reason of said bonus, nor shall it be brought to the attention of any commissioners or jury which may have the matter of condemnation of right of way across said lands before them. It is further agreed that in such condemnation proceedings said McElroy shall be allowed and paid the value of the bridge abutments on his said land as well as for the land taken.

"Third. It is hereby further agreed between the parties hereto that the two hundred dollars ($200) previously agreed upon by them shall be paid for the strip of land heretofore sought to be acquired by the Missouri Pacific Railroad Company from said McElroy, and that said corporation shall acquire said strip of land by paying therefor the said sum of two hundred dollars ($200) within fifteen days from this date; but the price to be so paid for the last-mentioned strip shall in no way be brought to the attention of the commissioners or jury that may be selected to assess the damages caused the said McElroy by said railroad company's condemning and appropriating so much of the remainder of his land as may be necessary for its right of way.

"In witness whereof, the parties have hereunto set their hands this 30th day of December, 1891.

                  "Done in duplicate
                  "Kansas City & Independence Air Line
                                 "A. A. Mosher, President
                  "Hugh L. McElroy
                            "By C. H. R. McElroy
                                "His Attorney in Fact."
                

The petition alleges that in accordance with the provisions of said contract the defendant did enter upon the tracts of land sued for and construct a line of railway, and, though frequently requested, has failed and refused to institute the condemnation proceeding so agreed to be brought, or to pay to the plaintiff the fair and reasonable value of the land so taken by defendant, the damage done to the remainder of the tract, and the value of the bridge abutments; that in December, 1891, and January, 1892, the fair and reasonable market value of the tracts of land in question was, and ever since has been, the sum of $8,000, and the value of the bridge abutments on said land was $2,000; and that the remainder of one of the tracts of land in question was damaged in the sum of $5,000.

Defendant by its answer admits that it is a corporation, admits the execution of the contract sued on, admits that the defendant did construct on the land a line of railway, and alleges that said railway was constructed by permission of and pursuant to said contract. The answer then denies all other allegations in the petition.

On the trial of the case, evidence was introduced by plaintiff tending to show the value of the land taken in December, 1891; and, although the petition asked for damages to the remainder of the tract not taken, the plaintiff introduced no evidence as to such damages, and did not attempt to recover therefor. On the trial of the case the court refused to permit defendant to show any "special" or "peculiar" benefits accruing from the building of the railroad to the remainder of plaintiff's tract not taken. The court also confined the time of the determination of the value of the plaintiff's land taken to December, 1891. Defendant excepted to the ruling of the court in both of these particulars. Both sides introduced evidence as to the value of the land. The defendant by the ruling of the court was confined to its value in December, 1891.

Over the objection and exception of defendant, the court instructed the jury, at the instance of plaintiff, as follows:

"(1) The court instructs the jury that under the pleadings and evidence in this case your verdict must be for the plaintiff, and in assessing his damages you should allow him the value of his land taken by the defendant for right of way for its railroad at the time the same was so taken, and in addition thereto the value of the bridge abutments on said land at said time, all at the market value as shown by the evidence; and on the amounts so found you may allow and add interest at the rate of 6 per cent. per annum from the time said land and abutments were so taken to the present time, in all not exceeding the sum of $15,000. Your verdict should be in the following form: `We, the jury, find for the plaintiff, and assess his damages at the sum of ____ dollars.'

"(2) The court instructs the jury that neither the $750 nor the $200 mentioned in the contract read in evidence were paid to the plaintiff in any respect as or on account of compensation for the land or stone abutments of plaintiff taken by defendant for its railroad, and in arriving at the amount of your verdict for plaintiff you are instructed not to give the defendant any credit whatever for either of said payments."

Thereupon the defendant requested the court to give the jury the following instructions:

"(1) The court instructs the jury that the plaintiff or those under whom he claims derived title to the land appropriated by the defendant from the United...