North Missouri R.R. Co. v. Gott

• Decision Date: 31 October 1857
• Citation: 25 Mo. 540
• Parties: NORTH MISSOURI RAILROAD COMPANY, Defendant in Error, v. GOTT, Plaintiff in Error.
• Court: Missouri Supreme Court

25 Mo. 540

NORTH MISSOURI RAILROAD COMPANY, Defendant in Error,

v.GOTT, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1857.

1. In a petition in behalf of the North Missouri Railroad Company for the condemnation of the land upon which its railroad was located, it was alleged that the road passed hills and valleys, and that a strip of one hundred and fifty feet in width was necessary for the construction of the road; held, that this allegation was not traversable.

2. In a proceeding, instituted in behalf of the North Missouri Railroad Company to condemn land, three commissioners or viewers were, in accordance with prayer of the petition, appointed to assess the damages; held--it not appearing that said company had accepted the provisions of the general railroad law of February 24th, 1853 (Sess. Acts, 1853, p. 128), requiring the appointment of five commissioners, etc.--that the proceeding was properly conducted under the act of incorporation of March 3d, 1851. (Sess. Acts, 1851, p. 483.)

Error to Montgomery Circuit Court.

The commissioners appointed by the court to “assess the damages” sustained, adopted the following rules: “1. The commissioners should assess and give damages for the land taken for the road at its market value at the time taken. 2. They should take into their consideration the enhanced value of the whole tract of land through which the road runs, in consequence of the road, and also the injury the road is to the whole tract by separating its parts or otherwise, and offset the one against the other, and give to the owner, by way of damages, any excess of injury over such advantages.”

The commissioners assessed the “compensation” of defendant at $287.40.

Hunt and Broadhead, for plaintiff in error.

I. The court ought to have called for evidence to sustain the issue, whether there were hills and valleys on the

surveyed route rendering one hundred and fifty feet necessary to construct the road. (General Railroad Law, Sess. Acts, 1853, p. 121, §15.)

II. Five commissioners should have been appointed instead of three. (Sess. Acts, 1853, p. 121, §15.)

III. The petition asks for an absolute title, and the court by its decree granted it, whereas the general railroad law only gives the use of the condemned land to the company.

IV. On refusing to set aside and dismiss the whole proceedings the court ought to have appointed a new board of commissioners. They adopted a wrong rule in assessing the damages. They ought not to have taken into consideration the enhanced value of the land which was common to all the adjacent lands, and offset this increase of value and general benefit against the special and local damage sustained by the defendant by having his land divided into small and valueless parts. The commissioners can only offset local and special benefits against local and special injuries. (13 Barb. 169; 16 Barb. 6, 100, 273; 17 Wend. 649.)

E. A. Lewis, for defendant in error.

I. The motion to set aside the report and appoint a new board of commissioners was properly overruled. The commissioners did not exceed their authority in assessing damages upon one hundred and fifty feet width; for that was what they were expressly appointed and required to do by competent authority. It was not within their province to decide whether one hundred and fifty feet or less would meet the necessities of the company, but only to assess damages for the land described in the petition. (Sess. Acts, 1851, p. 485, §9.) The affidavits of Magee and Lee show that there were “hills and valleys” within the contemplation of the charter. (Sess. Acts, 1851, p. 485, §7.) The question of the insufficiency of the damages cannot be reviewed in this court upon the record presented.

II. The motion to dismiss the proceedings was properly overruled. The proceedings were properly instituted under the charter of the company and not under the general railroad law. The provisions of the latter have exclusive application to companies organized under that act alone. The asking for a fee simple title is in conformity with the charter. (Sess. Acts, 1851, p. 485, §10), and the provision granting the same is not unconstitutional. (21 Mo. 294; 3 Whart. 555; Walther v. Warner, 25 Mo. 277.) But even were it unconstitutional, that would not support this motion to dismiss, but would go to modify the form of the final judgment only.

III. The rule for estimating the damages was correctly laid down, or was, at least, such as the defendant could not complain of. (Sess. Acts, 1851, p. 485, §9; Sess. Acts, 1853, p. 130, §16; Newby v. Platte County, 25 Mo. 258; 14 Penn. 245; 4 Whart. 47; 8 Penn. 445; 4 Cush. 291.)

RICHARDSON, Judge, delivered the opinion of the court.

The objections of the appellant to the proceedings of the Circuit Court, and relied on here for the reversal of the judgment, are: First, that the defendant was denied the right of trying the issue made on the statement in the petition, that the road passed hills and valleys, and for that reason the width of one hundred and fifty feet was necessary; second, that the commissioners, to assess the damages, ought to have been appointed pursuant to the provisions of the general railroad law of 1853; third, that an improper rule was adopted by the...