Missouri Pac. Ry. Co. v. Roberts

• Decision Date: 15 March 1905
• Parties: MISSOURI PAC. RY. CO. v. ROBERTS.
• Court: Missouri Supreme Court

86 S.W. 91

187 Mo. 309

MISSOURI PAC. RY. CO. v. ROBERTS.

Supreme Court of Missouri, Division No. 1.

March 15, 1905.

EMINENT DOMAIN — CONDEMNATION PROCEEDINGS — TRIAL BEFORE JURY — EVIDENCE — COMMISSIONERS' REPORT — INSTRUCTIONS — CURE OF ERROR.

1. Rev. St. 1899, c. 12, art. 7, provides for the condemnation of land for railroad and other corporate purposes. Section 1268 permits exceptions to be filed to the report of the commissioners, authorizes the court to review such report and order a new appraisement, and provides that such new appraisement shall, at the request of either party, be made by jury. It further provides that the railroad or other corporation may commence work on the premises. notwithstanding the filing of exceptions, and that further proceedings shall only affect the amount of compensation. Held that, where exceptions are filed to the report of the commissioners and a jury trial is demanded, such trial is de novo, and the jury are not entitled to know what the report or original assessment of damages was, and the reading of such report to the jury is error.

2. The error is not cured by instructions telling the jury not to be influenced by the commissioners' award, and that the amount of such award has been paid by plaintiff, and that, if defendant has sustained damages in excess of the amount paid, the jury should deduct such amount from the amount found by them, and return a verdict for the excess, with interest.

3. Moreover, such charge is erroneous, in that it omits to tell the jury what to do in the event of an assessment of damages by them at a sum less than that paid by plaintiff, and thereby assumes that their verdict will be in excess of the commissioners' award.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Condemnation proceedings by the Missouri Pacific Railway Company against M. R. Roberts. From a judgment fixing the damages, plaintiff appeals. Reversed.

Elijah Robinson, for appellant. Sandusky & Sandusky, for respondent.

MARSHALL, J.

This is an action under the statute for the condemnation for railroad purposes of 8.3 acres of land in Jackson county, located about 2½ miles east of the eastern limits of Kansas City, in what is commonly called by the witnesses the "East Bottoms." It consists of a strip of land, substantially 100 feet wide, taken off from the northern side of a tract of 15 acres held by the defendant in trust for himself and others, and the whole tract is practically wedge-shaped, and is bounded by the right of way of the Atchison, Topeka & Santa Fé Railway on the north, by the right of way of the Kansas City & Independence Air Line on the south (to the south of which also lie the rights of way of the main line of the plaintiff company and of the Chicago & Alton Railway Company), by substantially the meanderings of Rock creek on the east, and its edge or point at its western extremity is at the intersection of the rights of way of said Atchison, Topeka & Santa Fé and said Kansas City & Independence Air Line, and it lies in the N. W. ¼ of section 32 and the N. E. ¼ of section 31, township 50, range 32 W. The commissioners assessed the damages for the land to be taken at $6,225, and the damages to the land remaining at $1,275, aggregating $7,500. The plaintiff paid said money into court, filed exceptions to the report, asked a jury trial, and took possession of the land sought to be condemned. The record does not show any ruling on the exceptions, but for the purposes of this case it will be assumed that the court sustained the same.

At the trial before the jury the abstract of the record and the briefs of counsel seem to indicate that the defendant introduced his testimony first, and the plaintiff introduced its testimony afterwards. The defendant called 12 witnesses, of whom Judge G. L. Chrisman, John A. Kerr, J. D. Cusenberry, R. C. Maxwell, and M. R. Roberts, the defendant, lived in the neighborhood, and E. H. Phelps, John A. Kerr, W. L. Powell, G. J. Clark, H. C. Gilbert, Thomas Stinson, and Erastus Smith were real estate agents and well familiar with the property, its location, surroundings, value, and the uses to which it is adaptable. They testified on direct examination that the part taken was worth from $1,000 to $1,500 an acre. The defendant testified that he had bought the whole tract for himself and others two or three years previously, at a partition sale, for $135 an acre, but that in settling with the heirs he and Judge Chrisman figured this tract at $800 an acre. These witnesses on cross-examination were asked if the land could have been sold upon three months' effort for $250 or $300 an acre before the condemnation proceedings were begun, and they all said they thought it could, but would not say how much more it could have been sold for. They all said it had a peculiar value for railroad purposes, because it was the only space available, between the river and the bluffs at that point, for another railroad to enter Kansas City through the East Bottoms. Maxwell owns the land immediately east of the part to be condemned, and he sold 5 acres of his land for $1,000 an acre a short time before the suit was begun; but it had a spring on it, which he said was the main reason the purchaser wanted it. The defendant testified that, about a year before, Mr. Gallagher bought 10 acres, at $700 an acre, that lie on the bluff above and in the vicinity of his land, and were on the electric line, and made a beautiful piece of land for residence purposes, and that he built a house on it. Touching the damage to the remaining land, Clark testified that he thought it would be damaged $1,000. Only one other witness for the defendant, to wit, Gilbert, was asked as to such damage, and he said that he could not see that it was damaged to any great extent, but that it might be damaged some. The defendant, however, claims that, owing to the overhead construction of the Santa Fé road, at its intersection with the Air Line, at the western edge of this land, no other road could be built at that point, and hence that the remaining land is necessarily damaged, and that the land condemned is the key to the location, and, further, that the land remaining is rendered more inaccessible by the construction of a railroad on the portion sought to be condemned.

The plaintiff called 10 witnesses, of whom Russell Harriman, who is an attorney residing at Booneville and had had experience in securing railroad rights of way, expressed no opinion as to the value of the land; and the same is true as to C. E. Carson, who is appellant's superintendent of terminals in Kansas City. Mr. Russell said, however, that there is no difference in the facilities for getting water from the spring on the Maxwell tract to the part of the land remaining from those that existed before the condemnation proceeding was begun or since the plaintiff took possession, and that the remaining part of the land is not rendered any more inaccessible by taking the land in question here, because it was reached before by a road that ran close to the creek at the east end of the land, and is reached by the same road now. Carson testified that the remaining land is not available for switch tracks. Of the remaining witnesses called by plaintiff, S. B. Huff, W. G. Miller, E. A. Haltz, E. S. Truit, L. N. Leslie, and M. W. Barber are all real estate agents in Kansas City, and know the land, the value, etc. They said it was worth from $150 to $300 an acre. Mr. James Fairweather is a lawyer in Kansas City, knows the land, and knows the value of land in the East Bottoms in a general way. He said it was worth from $250 to $300 an acre. Mr. W. H. Collins, bookkeeper for the Kansas City Star, but who has been dealing in real estate in that city for 15 years and knows the land, said it was worth from $250 to $300 an acre.

Over the objection of the plaintiff the defendant was permitted to read in evidence the report of the commissioners, and this is assigned as error.

The court instructed the jury quite voluminously at the request of the parties. No objection is urged against any of the instructions for defendant, except those numbered 2, 3, 5, and 7, and instruction 8 given by the court ex mero motu.

The jury assessed the value of the land taken at $800 an acre, aggregating $6,640, and assessed the damage to the remaining land at $1,000, making the total damages $7,640, and then deducted the amount that plaintiff had paid into court, and that defendant had received, $7,500, leaving a balance due of $140, and then...