McReynolds v. Kansas City, C. & S. Ry. Co.

• Decision Date: 06 June 1892
• Citation: 19 S.W. 824,110 Mo. 484
• Court: Missouri Supreme Court
• Parties: McREYNOLDS v. KANSAS CITY, C. & S. RY. CO.

19 S.W. 824

110 Mo. 484

McREYNOLDS v. KANSAS CITY, C. & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

June 6, 1892.

EMINENT DOMAIN — REMEDIES OF LANDOWNER — MEASURE OF DAMAGES.

In an action to recover damages for appropriation of a right of way by a railroad company without license through plaintiff's farm, an instruction that the jury should consider the value of the land taken and the damage, if any, to the tract of which it forms part, and deduct the benefits peculiar to such tract, arising from the running of the road through it, states the correct rule of damages. Mueller v. Railroad Co., 31 Mo. 262, explained.

Appeal from circuit court, Henry county; D. A. DE ARMOND, Judge.

Action by W. A. McReynolds against the Kansas City, Clinton & Springfield Railway Company for damages for appropriation, without license or compensation by defendant, of a right of way, for the purpose of building and operating a railroad through plaintiff's farm. From a judgment for plaintiff, and a ruling on the question of the measure of damages, defendant appeals to the Kansas City court of appeals. Affirmed. Upon motion for rehearing, the court of appeals certified the case to the supreme court. Affirmed.

Wallace Pratt, I. P. Dana. and Fyke & Calvird, for appellant. C. C. Dickinson and Jas. Parks & Sons, for respondent.

BRACE, J.

This is an action for damages against the defendant for taking possession of, and appropriating to its own exclusive use, for the purpose of building and operating its railway thereon, a strip of ground belonging to plaintiff, 100 feet wide, across his farm of 1,190 acres, for a right of way, without license or any other right so to do, and without any compensation to him therefor; in which plaintiff tenders a deed therefor to the defendant, to be delivered upon the payment of such damages. On the trial the circuit court gave the following instruction for the plaintiff on the measure of damages: "(3) The court instructs the jury that, in estimating the damages growing out of the appropriation by defendant of a right of way for its railroad over plaintiff's lands, the jury should consider the quantity and value of the land taken, and the damage, if any, to the tract of which it forms part, by reason of the road running through it, and from the sum of these should deduct the benefits, if any, peculiar to such tract, arising from the running of the road through it; and by `peculiar benefits' is meant such benefits derived from the location of the road as are peculiar to the tract itself, and not shared in common by it and other lands in the same neighborhood," — and refused to give the following for the defendant: "The court instructs the jury that plaintiff, in this case, under the pleadings and evidence, can only recover the value of the land actually taken by defendant for its right of way, and cannot recover any damage for injury, if any, to plaintiff's farm outside of the land actually taken by defendant." There was a verdict and judgment for the plaintiff for $750, from which the defendant appealed to the Kansas City court of appeals, where the ruling of the circuit court on the measure of damages was sustained. But on the suggestion of counsel for appellant, in their motion for a rehearing, that such holding was in conflict with the rulings of this court in the following cases: Mueller v. Railroad Co., 31 Mo. 262; Soulard v. City of St. Louis, 36 Mo. 546; Jameson v. City of Springfield, 53 Mo. 224; Railroad Co. v. Ridge, 57 Mo. 599; City of Springfield v. Schmook, 68 Mo. 394, — the case was certified here. It is reported in 34 Mo. App. 581.

1. The measure of damages laid down in the plaintiff's instruction has long been approved in this state as the proper one in cases where the land of a citizen is taken for railroad purposes in condemnation proceedings, (Railroad Co. v. Chrystal, 25 Mo. 544; Lee v. Railroad Co., 53 Mo. 178; Railroad Co. v. Ridge, 57 Mo. 600; Railroad Co. v. Waldo, 70 Mo. 629; Railway Co. v. Calkins, 90 Mo. 538, 3 S. W. Rep. 82; Railway Co. v. Story, 96 Mo. 611, 10 S. W. Rep. 203;) and has also been recognized as the proper rule in cases where the land of a citizen has been appropriated for such purposes without compensation, and without having the same legally condemned, (Combs v. Smith, 78 Mo. 32; Allen v. Railway Co., 84 Mo. 646; Welsh v. Railway Co., 19 Mo. App. 127.) No good reason, founded upon principle, can be assigned why the same rule should not be applied in both classes of cases. The injury is the same, the damage is the same, and the compensation should be the same; and we are no longer, in this state, hampered by forms of action that could furnish an excuse for a measure of damage in the one class different from that in the other. The idea that, in the class of cases to which the one in hand belongs, the measure of the plaintiff's recovery is limited to the actual value of the strip of land appropriated, rests alone upon dicta in some of the cases cited in support of the defendant's contention, the authority for which is supposed to be found in the opinion in Mueller v. Railroad Co., supra, the earliest case cited as being in conflict with the ruling of the court of appeals. NAPTON J., in delivering the opinion of the court in that case, said: "The only point which occasioned any hesitation in entering an affirmance of this judgment at the last term is the refusal of the land court, on the trial, to give an instruction asked by the defendant to the effect that the plaintiff was not entitled in this...