Metropolitan St. Ry. Co. v. Walsh

• Decision Date: 22 May 1906
• Citation: 197 Mo. 392,94 S.W. 860
• Parties: METROPOLITAN ST. RY. CO. v. WALSH et al.
• Court: Missouri Supreme Court

94 S.W. 860

197 Mo. 392

METROPOLITAN ST. RY. CO. v. WALSH et al.

Supreme Court of Missouri, Division No. 2.

May 22, 1906.

1. SALES OF OTHER PROPERTY — EVIDENCE — VALUE.

In condemnation proceedings, sales of similar property to that involved, made in the neighborhood about the same time, is admissible on the question of damages.

2. SAME.

Evidence as to the amount which the condemning party had paid for other land in the neighborhood purchased for the same purposes as the land sought to be condemned was inadmissible.

3. EMINENT DOMAIN — EVIDENCE — SUFFICIENCY.

In condemnation proceedings, wherein evidence was introduced as to the amount paid by the condemning party for other lands in the neighborhood, the evidence held sufficient to show that such other lands were purchased for use in connection with the land sought to be condemned, or that the vendors knew such fact.

4. APPEAL—QUESTIONS REVIEWABLE—WAIVER IN TRIAL COURT—INCONSISTENT POSITION.

Where, in proceedings to condemn land, the landowner, on exceptions filed to the report of commissioners, opened the case and offered evidence as to the amount paid by the condemning party for lands in the neighborhood purchased to be used for the same purposes as those for which the land involved was sought to be condemned, the condemning party, by introducing evidence of prices paid by it for other property, did not preclude itself from complaining on appeal that the admission of evidence as to the price paid for other land was error.

5. EVIDENCE — OPINIONS — VALUE OF PROPERTY.

In condemnation proceedings, there was no error in permitting the owner to give his opinion as to market value where it appeared that he was familiar with the property and its location and had been for a number of years.

6. EMINENT DOMAIN — EVIDENCE — VALUE OF PROPERTY.

In condemnation proceedings, it was proper to admit evidence showing an increase in the value of property in the neighborhood by reason of the acquisition of property by certain corporations, where such holdings were acquired prior to the condemnation proceedings.

7. SAME.

In condemnation proceedings, while it may be proper to show a failure to agree upon the amount to be allowed for the property, it is not competent to go into details of the negotiations for the purchase, or to show different amounts offered for the property by the condemning party.

8. APPEAL—HARMLESS ERROR—ADMISSION OF EVIDENCE—WITHDRAWAL FROM JURY.

Where, in condemnation proceedings, a witness testified as to what price the corporation had offered for the property, prior to the institution of condemnation proceedings, but the testimony was withdrawn from the jury by an appropriate instruction, the error was cured.

9. EMINENT DOMAIN — EVIDENCE — VALUE OF PROPERTY.

In condemnation proceedings, there was no error in admitting testimony to show the elements of the value of the property by reason of its being located near certain railroad tracks and suitable for switching purposes.

10. SAME.

In condemnation proceedings, it was proper to exclude the testimony of a witness that he had offered to sell defendant property near the location of the land involved for certain amounts, and that he had declined to take it.

11. WITNESSES—CROSS-EXAMINATION—SCOPE.

In condemnation proceedings, it was proper to exclude questions to defendant on cross-examination as to certain other property being offered to him in the neighborhood for specific amounts, and that he declined to take it.

12. EMINENT DOMAIN — PROCEEDINGS — INSTRUCTIONS.

In condemnation proceedings, the court instructed that "fair market value" meant the price which property would bring when offered for sale by one willing, but not obliged, to sell, and bought by one willing, but not obliged, to buy; that it did not mean the price which property could bring at forced sale, but what it would bring in the hands of a prudent seller, at liberty to fix the time and conditions of sale. Held, that the instruction was not erroneous, because of the statement as to "a prudent seller," etc.

13. SAME—MEASURE OF COMPENSATION.

A general rule, in estimating the compensation to be allowed on condemnation of a parcel of land, is that reference should be had to the use for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.

14. SAME—INSTRUCTIONS.

In condemnation proceedings, the court instructed that, in determining the value of the land in controversy, the jury might take into consideration its location, the uses and purposes for which it was suitable or adaptable, considering the location, and having regard, not only to the existing business wants of the community, but to such uses as might be reasonably expected in the near future, together with all the surroundings and conditions as shown by the evidence; that the jury might take into consideration other bona fide sales of property in the vicinity and similarly located; and that in determining the uses and purposes for which the property was suitable or adaptable the jury were not confined solely to the use, if any, made of the land at the time it was taken. Held, that the instruction was proper.

15. SAME.

In condemnation proceedings, the condemning party requested an instruction that "the market value" of property means its actual value, independent of the purposes for which it is to be used by the condemning party; that is, the fair market value of the property, as between one who wants to purchase and one who wants to sell, not what could be obtained for it in peculiar circumstances, when greater than its fair price could be obtained, nor its speculative value, nor the value obtained through the necessities of another, nor, on the other hand, is it to be limited to that price which the property would bring when forced off at auction under the hammer; that the question is, if defendant wanted to sell his property, as to what could be obtained for it on the market from the parties who wanted to buy and would give its full value. Held, that the instruction amounted to a detailed explanation of the term "market value," cautionary in its character, and, certain features of it not having been fully embraced in other instructions, it was erroneously refused.

Appeal from Circuit Court, Jackson County; Jas. H. Slover, Judge.

Condemnation proceedings by the Metropolitan Street Railway Company against Michael Walsh and others. From the judgment of condemnation and assessing damages, the railway company appeals. Reversed, and remanded for a new trial.

This cause is here upon appeal by the railway company from a judgment of the Jackson county circuit court assessing damages for property taken in a condemnation proceeding begun by the plaintiff railway company. It can serve no useful purpose to reproduce the petition upon which this proceeding was predicated, but will suffice to state generally the purpose of it. On June 20, 1902, the Metropolitan Street Railway Company filed, in the office of the clerk of the circuit court of Jackson county, Mo., its petition, wherein it sought to appropriate for its power house, certain lands of the defendants, that is to say, lot 323, block 33, Kansas City, Mo. On July 18, 1902, in pursuance of the filing of the petition as herein indicated, commissioners were appointed by the circuit court and, in obedience to the discharge of the duties imposed upon them by virtue of that appointment, proceeded to examine the lands sought to be condemned for the purpose of making an assessment of damages by reason of the taking of the property mentioned in the petition, and after such examination assessed the damages sustained by the defendants by reason of the condemnation of their property in this proceeding at the sum of $4,260, and filed their report of such assessment in the office of the clerk of the circuit court of Jackson county, Mo. On August 4, 1902, defendants filed in the circuit court in which this proceeding was pending their exceptions to the commissioners' report and demanded a trial by a jury, which was by the court awarded to them. On March 3, 1903, a trial by a jury was had upon the question of damages sustained by reason of the condemnation of the property of defendants. It is not essential to the determination of the legal propositions involved in this proceeding to detail the testimony introduced upon this trial. It is sufficient to say that there was testimony by both plaintiff and defendants as to the value of the property taken which was very much in conflict as to the amount of the value of the property. The testimony introduced on the part of the respondents, to which objections were urged on the part of the appellant, as well as the testimony which was offered on the part of the appellant and excluded, will be referred to and considered during the course of the opinion, hence there is no necessity for reproducing it in this statement.

At the close of the evidence, at the request of the defendants, the court instructed the jury as follows: "(1) The court instructs the jury that under the Constitution of this state private property cannot be taken for public use without just compensation being paid to the owner, and the law of the state gives the owner the right to have such compensation determined by a jury. The plaintiff in this case has taken lot 323 in block 33 in Old Town, an addition to Kansas City, which was the property of defendants. Your verdict, therefore, must be for defendants, and in assessing the just compensation to be paid them you must allow them the fair market value of said lot as it is shown by the evidence to have been on July 18, 1902. (2) You will not, in determining the value of defendants' land, consider or be in any way influenced by the fact that the commissioners allowed the defendants the amount stated in their report read to you. Such report is not admitted as evidence...