Missouri Pacific Railway Company v. Porter
| Decision Date | 29 November 1892 |
| Citation | 20 S.W. 568,112 Mo. 361 |
| Parties | The Missouri Pacific Railway Company, Appellant, v. Porter |
| Court | Missouri Supreme Court |
Appeal from Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.
Reversed and remanded.
H. S Priest and Wm. S. Shirk for appellant.
(1) The petition does not seek to condemn the right to take or interfere with a ferry franchise of the defendant. It only seeks to condemn the right to build its railroad over certain lots, in the city of Boonville, fronting on the Missouri river, which the defendant below claimed were used by him as a ferry landing. The ownership of the lots and of the ferry franchise is entirely separate and distinct. The ownership of the banks of a river does not create in such owner a ferry franchise. Nor is it necessary that the owner of a ferry franchise should own a single foot of soil on either side of the stream. Stark v. Miller, 3 Mo. 470; Ragan v McCoy, 29 Mo. 368; Lewis on Eminent Domain, sec. 484; Prosser v. Wapello, 18 Iowa 327; Moses v Stanford, 11 Lea (Tenn.) 731; Railroad v. Rodgers, 1 Duval (Ky.) 135; Railroad v. Jones, 56 Am. Rep. 260; 7 American & English Encyclopedia of Law, p. 942, note 3; 8 American & English Encyclopedia of Law, p. 585; Bell v. Clegg, 25 Ark. 26. From these authorities it will be seen, that, if the ferry franchise is damaged, the recovery must be had in another action. (2) Nor is the ferry franchise an appurtenance to the lots. Lewis on Eminent Domain, sec. 135; Rapalje & Lawrence's Law Dictionary, title "Appurtenance;" Prosserv. Wapello, 18 Iowa 327, 335, and other authorities cited to point 1. (3) The court below erred in admitting evidence, all through the trial of the case, as to the damage done to defendant's ferry franchise by the building of plaintiff's railroad, and in refusing to strike out such evidence on plaintiff's motion. See authorities to points 1 and 2. Such evidence is admitted to have been improper and incompetent by the defendant's fourth instruction. (4) The court below also erred in permitting all of the defendant's witnesses to testify as to the value of the lots as a landing or landings for defendant's ferry, and the damages done to them as such, for two reasons. Mills v. Lonergan, 91 Ill. 513; Mills v. St. Clair, etc., 8 How. (U.S.) 569; Lewis on Eminent Domain, sec. 480; Sedalia, etc., v. Abell, 17 Mo.App. 632; Railroad v. Suydam, 17 N. J. L. 25. (5) It was error for the court persistently to admit the evidence referred to in points 3 and 4 during the whole trial and to refuse repeatedly to strike it out. Cobb v. Grffith, 12 Mo.App. 130. In state cases it has long been settled in this state that error in admitting improper evidence is not cured by instructing the jury to disregard it. State v. Mix, 15 Mo. 153; State v. Rothschild, 68 Mo. 52. (6) Defendant's third and fourth instructions were also erroneous. (7) So was the instruction on the icehouse as an element of damages. Forney v. Railroad, 33 Am. & Eng. R. R. Cases, 162. (8) And it was also error to permit defendant to testify as to amount and value of the ice in the icehouse. Railroad v. Pearson, 35 Cal. 247; In re Railroad, 35 Hun, 306; S. C., p. 633.
John Cosgrove, J. H. Johnston and Draffen & Williams for respondent.
(1) The constitutional guaranty of "just compensation" for property taken or damaged for public use means that the owner shall receive a full equivalent for the entire loss sustained by the appropriation of his property. The intention is that the compensation paid shall equal the damages inflicted, that the owner "shall be made whole." There is no artificial rule upon this subject. The inquiry in this class of cases is as to the extent of the owner's loss, the situation of the property, the manner in which it is or may be used, its adaptability to any particular use, and how its value for such purpose will be affected by reason of the location of the railroad over the same, are proper matters for consideration in estimating the damages. 3 Sutherland on Damages, p. 433; Lewis on Eminent Domain, secs. 462, 480; Railroad v. McGrew, 104 Mo. 282; Bridge Co. v. Ring, 58 Mo. 491; Boom Co. v. Patterson, 98 U.S. 403; King v. Railroad, 32 Minn. 224. (2) It was competent for defendant to show that the location of the lots in question made them specifically valuable as a ferry landing, and that there was, at the time of and for forty years prior to the institution of these proceedings had been, an established ferry across the Missouri river at said point. It was proper to take into consideration any and every injurious effect that the location of the railroad would have upon the utility of said lots as a ferry landing, everything that would render them less desirable for that purpose and which would, therefore, depreciate their value. Railroad v. McGehee, 41 Ark. 202; Boom Co. v. Patterson, 98 U.S. 403; Railroad v. Railroad, 56 Am. Rep. 173; Autenrieth v. Railroad, 36 Mo.App. 254; Railroad v. Waldron, 88 Am. Dec. note, p. 113, et seq. (3) The defendant did not introduce any evidence as to damages to a ferry franchise, and the court did not rule that any such evidence might go to the jury. (4) The witnesses in making up their estimate of damages rightly took into consideration the fact that the location of the railroad over the lots would render the ferry less accessible therefrom and would deter persons from crossing and thereby diminish the profits. 3 Sutherland on Damages, p. 433; Driver v. Railroad, 32 Wis. 569; Snyder v. Railroad, 25 Wis. 60; Railroad v. Waldron, 88 Am. Dec. 100, and note; Railroad v. Hill, 56 Pa. St. 460. It was proper to show that these lots were the only ones suitable for a landing. Trustees v. Dennett, 5 Thomp. & C. 217. (5) If part of the defendant's icehouse was on the right of way of the Tipton branch, it must be presumed that it was there by permission. The plaintiff could not condemn half of the house and not pay for the damages done to the half not taken. The defendant was the owner of the house and entitled to compensation for the damages done to it. (6) When the condemnation proceedings were had it was hot weather. The ice in the icehouse could not be removed, and if it had been feasible to remove it there was no place to transfer it to. When the icehouse was taken the ice was virtually destroyed, and defendant should be compensated for all loss sustained. Patterson v. Boston, 20 Pick. 159; Bridge Co. v. Shaubacher, 57 Mo. 582; Price v. Railroad, 27 Wis. 98. (7) This evidence, however, could not have injured the plaintiff. No instructions were predicated thereon, and in laying down the rule for the assessment of damages this was not included. Valle v. Picton, 91 Mo. 207.
This is a condemnation proceeding. The defendant was awarded $ 10,500 damages to his property and $ 1,725 interest thereon, making $ 12,225 in all, and plaintiff appeals.
The record shows that plaintiff commenced two actions in the circuit court of Cooper county, one in May and the other in November, 1887, to condemn a right of way, one hundred feet wide, for its road, through lots owned by defendant in the city of Boonville. The commissioners in the first case reported June 11, 1887, allowing defendant $ 5,000 damages, and in the second case November 26, 1887, allowing him $ 700. Plaintiff deposited the sums thus allowed with the clerk of the circuit court as required by statute. Both parties excepted, in due time, to the reports, and the court set them aside.
On application of plaintiff the venue was changed to the circuit court of Moniteau county, where, by consent of parties, the two cases were consolidated and tried as one. It was also agreed that the only question that should be submitted for adjudication was the amount of damages defendant was entitled to by reason of the location, construction and operation of plaintiff's road through said lots.
The evidence contained in the bill of exceptions shows that defendant owned eleven lots in Boonville, bounded on the north by the Missouri river, and running south to Water street, which is parallel with the river; the average distance across the lots from the river to Water street is about one hundred and fifty feet, and each lot has a river frontage of ninety feet, making the river frontage of all the lots three or four hundred yards; four of the lots extend from First street on the west to Second street on the east and seven lie east of the latter street, which runs north and south, its northern terminus being the river; ten or twelve years ago defendant conveyed to the Boonville, St. Louis & Southern Railway Company a right of way forty feet wide, next to the river, through all his lots east of Second street, for what is known as the Tipton branch road. The latter road runs north along Second street till it reaches defendant's property, where it curves and runs east along the river bank to Fifth street; the right of way condemned in this proceeding includes in it the right of way previously conveyed for the Tipton branch; plaintiff proposed to construct its main line along the river bank, extending west of Second street, and from that line to construct a switch to connect with the Tipton branch on Second street south of Water street. Defendant had operated a ferry boat across the river at Boonville since 1852, using the lots in question for a landing. After the construction of the Tipton branch, the shore of the river east of Second street was not used, indeed could not be used for a ferry landing. Some time prior to the institution of the present proceeding, defendant, by permission of the city, improved the foot of Second street for a landing, which he used up to the time of the trial (which took place in March, 1890), and which he was then using. Of defendant's...
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