Mississippi River Bridge Co. v. Ring

• Citation: 58 Mo. 491
• Parties: MISSISSIPPI RIVER BRIDGE CO., Appellant, v. EDWARD RING, Respondent.
• Decision Date: 31 October 1874
• Court: Missouri Supreme Court

58 Mo. 491

MISSISSIPPI RIVER BRIDGE CO., Appellant,

v.EDWARD RING, Respondent.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Pike Circuit Court.

T. J. C. Fagg, for Appellant.

I. The court had no right to inquire into the value of the property taken from the premises, and to deduct that value from the amount of damages as ascertained by the commissioners. (Brainard vs. Clapp, 10 Cush., 6.)

II. The court is not authorized to fix the amount of compensation upon hearing the testimony. The court can only affirm or set aside the report. (Wagn. Stat., 328, § 4; Han. Bridge Co. vs. Schaubacker, 49 Mo., 555.)

III. As to general principles of condemnation, under statute of New York, see Troy & Boston R. R. vs. North. Turnp. Co., 16 Barb., 100.Sharp & Broadhead, for Respondent.

I. The court is not bound to confirm or reject the report; its supervisory power is not confined to technical errors. It may do what is right and just in the premises. (Wagn. Stat., 328, § 4; Han. Bridge Co. vs. Schaubacker, 49 Mo., 558.)

II. The deduction in the report was made by the court with the consent of the respondent.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding by the plaintiff, a duly organized corporation under the laws of this State, to condemn land for the approaches to its bridge. By its counsel it presented its petition to the judge of the Circuit Court, for the appointment of commissioners, and commissioners being appointed in pursuance of law, they entered upon the discharge of their duties. After viewing the land sought to be taken, they awarded to the defendant $2,500 as damages sustained by him.

In due time after the report was filed plaintiff filed exceptions to the same, because, 1st. The damages were excessive and exorbitant, and that the defendant had, after the making of the award, removed from the ground, over which plaintiff's right of way was located, property which was included in the amount of damages; and 2d. that the proceedings of the commissioners were irregular and illegal, and not in conformity with the requirements of law.

Upon the hearing of exceptions to the report, each side introduced witnesses, and there was great diversity in their testimony as to the damages. For the plaintiff, the witnesses did not consider that the defendant was in anywise injured, if he continued to use the property for the purpose of pork packing. For the defendant, some of the witnesses placed his damages as high as three thousand dollars. Whilst some of them considered the property very valuable, and thought it would be greatly injured, others founded their opinion upon what it would be worth if used for another business, for which it was deemed peculiarly adapted.

The property removed consisted of a corn crib, which was on the land when the commissioners viewed the same and made their report, and which the court found was of the value of one hundred and fifty dollars, which amount it deducted from the award, and then confirmed the report. From this ruling the plaintiff appealed.

Three points are now relied on by the counsel for the appellant, for a reversal of this case: First. That the court had no power under the statute to try the question of compensation, or undertake to fix by its judgment the amount to be paid for the use of the ground; Secondly. That after it was found that there had been a change in the property, produced by the act of the owner himself, affecting the value or compensation, the only action the court could rightfully take in the premises would be to set aside the report and appoint new commissioners; and, Thirdly. That the property in question being, at the time it was sought to be appropriated, used exclusively for the purpose of slaughtering hogs and packing pork, the question of the amount of damages sustained should have been confined exclusively to that business, and that there could be no inquiry as to what the property would be worth for any other purpose.

The statute, under which the parties acted in the matter of condemnation, provides, that the report of the commissioners may be reviewed by the court in which the proceedings are had, on written exceptions filed by either party in the clerk's office within ten days after the filing of such report, and the court shall make such order therein as right and justice may require, and may order a new appraisement upon good cause shown. (Wagn. Stat., 328, § 4.)

It will be observed, that this section gives the court extensive supervisory and discretionary power over the report. It may not only review the proceedings, but it is permitted to go further, and make such orders touching the premises as right and justice may require; and if it be of the opinion, upon reviewing the case, that it would be more conducive to justice to order a new appraisement, it may take that course. It is not perceived how the court can well review the report, so as to make an order therein according to right and justice, unless it receives evidence so that it can become possessed of the facts.

In the case of the Hannibal Bridge Co. vs. Schaubacker, (49 Mo., 555) it was held, that under the statute the finding of commissioners, appointed to appraise land to be condemned for approaches to a bridge, was not conclusive upon the Circuit Court, but that on written exceptions filed by either party, the court might re-examine the evidence, and, if the report of the commissioners was wrong, it might set the same aside. In that case the commissioners had obviously done great injustice to the party whose land was sought to be appropriated, and the court, when the exceptions were filed, treated the finding of the commissioners as conclusive, and refused to hear any testimony...