Nevada & M. R. Co. v. De Lissa

• Court: Missouri Supreme Court
• Writing for the Court: Thomas
• Citation: Nevada & M. R. Co. v. De Lissa, 15 S.W. 366, 103 Mo. 125 (Mo. 1891)
• Decision Date: 10 February 1891
• Parties: NEVADA & M. R. CO. v. DE LISSA.

15 S.W. 366

103 Mo. 125

NEVADA & M. R. CO. v. DE LISSA.

Supreme Court of Missouri, Division No. 1.

February 10, 1891.

CONDEMNATION PROCEEDINGS — NONSUIT — OPINION EVIDENCE.

1. In proceedings by a railroad company to condemn a right of way through defendant's farm, where, the damages having been assessed by commissioners, the company has deposited the amount with the clerk of the court, and entered upon the land and constructed and commenced operating its road, and exceptions to the report having been sustained, and the damages ordered to be reassessed by a jury, it is not error for the court to refuse to permit the plaintiff to take a nonsuit.

2. Upon an issue as to the damages by the construction of a railroad over defendant's farm, it is not error to permit witnesses shown to be competent, and acquainted with the premises and the character of the land, and whether improved or not, to express their opinion as to the damages, including the value of the portion taken and the damage done to the rest of the tract.

Appeal from circuit court, Dade county; D. P. STRATTON, Judge.

Thomas J. Portis and H. G. Herbel, for appellant. Thurman & Wray, for respondent.

THOMAS, J.

This action was commenced in Barton county, Mo., by appellant, to condemn the right of way over respondent's farm, consisting of 640 acres of land, in the west part of Barton county, Mo., near the town of Pedro, being section 35, township 33, range 33, three-fourths of a mile north of where appellant's railroad crosses the Ft. Scott & Gulf Railroad. The petition is in due form, and all the preliminary steps were taken to sustain such a proceeding. On the 4th day of March, 1886, three commissioners were appointed to assess respondent's damage, to-wit, James Gregory, Thomas Seals, and Frank Jones; who, after viewing the land, on the 17th day of March, 1886, made their report, in due form and time, assessing respondent's damages at $4,500. Appellant deposited said sum of money with the clerk of the circuit court, and immediately entered upon said land, constructed and commenced operating its railroad over it. To which report, in the time required by law, both appellant and respondent filed their exceptions; appellant and respondent each in their exceptions charging the commissioners with partiality and prejudice, appellant claiming the damages allowed to be excessive, and respondent claiming that they were inadequate, and he should have been allowed $10,000, instead of $4,500. The appellant in due form took a change of venue on account of the prejudice of the inhabitants of Barton county, Mo., and the...