Ragan v. Kansas City & S. E. R. Co.

• Decision Date: 20 September 1892
• Citation: 20 S.W. 234,111 Mo. 456
• Court: Missouri Supreme Court
• Parties: RAGAN et al. v. KANSAS CITY & S. E. R. CO.

20 S.W. 234

111 Mo. 456

RAGAN et al. v. KANSAS CITY & S. E. R. CO.

Supreme Court of Missouri, Division No. 2.

September 20, 1892.

EMINENT DOMAIN — DAMAGES — OPINION EVIDENCE — PRIOR PURCHASE — MISJOINDER — OBJECTION.

1. An objection to making a person a party plaintiff after the original petition has been filed, and allowing an amended petition, if available at all, can be taken only by demurrer or answer, and is not to be delayed until the introduction of evidence.

2. In an action against a railroad company for appropriating land for a right of way, proof that plaintiff's husband had been paid for the land by a company under which defendant claimed by mesne conveyances, and that he was the authorized agent of plaintiff, should have been admitted.

3. The several conveyances, also, should have been admitted as tending to prove defendant's ownership, since, if plaintiff stood by and allowed the construction of the road over her land without protest, this would estop her, not only as to the original company, but as to its grantee.

4. A real-estate agent, who has long resided in a certain town, and has property listed on his books in a certain addition, is competent to testify as to the value of property in that addition.

5. In an action against a railroad for the appropriation of land for a right of way, the owner is entitled to recover the value of the land taken, and the damages, if any, to the tract of which it forms a part, estimated as of the date of taking possession, less the benefits peculiar to said tract from the location of the road. McReynolds v. Railroad Co., (Mo.) 19 S. W. Rep. 824, followed.

Appeal from circuit court, Jackson county; JAMES GIBSON, Judge.

Action by Lucinda H. Ragan and others against the Kansas City & South Eastern Railroad Company. Judgment for plaintiffs. Defendant appeals. Reversed. The following are the instructions referred to in the opinion:

"First. The court instructs the jury that if you believe from the evidence that the defendant, in 1887, entered into and took possession of the property in controversy, and graded and constructed their railroad thereon, and appropriated said property to their own use, then your finding must be for the plaintiffs. Second. In estimating the damages to the land in controversy, the jury will consider the quality and value of the land taken by the defendant company for a right of way, and the damages to the whole tract by reason of the road running through it, and deduct from these amounts the benefits, if any, peculiar to said tract of land, arising from the running of the road through the same; and by peculiar benefits to the land is meant such benefits as that land derives from the location of the road, which are not common to the other lands in the same neighborhood; and in this connection you are instructed that the damages are to be fixed and determined as of the date that the defendant the Kansas City & South Eastern Railroad Company took possession of the lots in controversy, in 1887, and not of any other date; but in no event can your verdict exceed seven thousand dollars. Third. The court instructs the jury that the evidence introduced in this case shows the title to lots twenty and twenty-one, in Catherine Purdom's addition to Westport, in controversy, to have been in the plaintiffs, Lucinda H. Ragan and her trustee, at the time the defendant entered thereon. Fourth. The court instructs the jury that, in arriving at their verdict in this cause, they must be governed by the law as given to them by the court, and the testimony introduced, and this alone must be your guide. Fifth. Any verdict you may render will not vest fee-simple title in the railroad, because, under the laws of this state, land taken for railroad purposes does not take the fee-simple title from the owner, but gives the railroad company the right to use always, for railroad purposes, and, if the railroad company should ever cease to use the land, the right of possession in the railroad would cease. Sixth. By the term `market value' is meant that price that the property would have brought in the market; that is, just such an amount as plaintiff could have obtained if he had gone upon the market, and after a reasonable time, in attempting to sell, had sold the same."

Johnson & Lucas, for appellant. Kennedy & Robinson and Robinson, O'Grady & Harkless, for respondents.

GANTT, P. J.

This is an action for damages for the appropriation by the defendant of a strip of land 100 feet wide, through lots 20 and 21, in Catherine Purdom's addition to the town, now city, of Westport, in Jackson county, Mo. The property has a frontage of 132 feet on Mill street, and a depth of 120 feet. The plaintiffs are Mrs. Lucinda Ragan and her husband and Thomas Kennedy, her trustee, under appointment of the circuit court. According to the petition and the great weight of evidence, Mrs. Ragan is, and has been since 1859, the owner in fee simple, to her sole and separate use, of the said real estate, by virtue of a deed to her, to said property, from her mother, Mrs. Purdom. William P. Lea was the original trustee, but died before this action was commenced. After this suit was begun the plaintiffs had Mr. Kennedy appointed trustee in lieu of Lea, deceased, and he was then made a party plaintiff in an amended petition. In 1874 the Kansas City, Memphis & Mobile Railroad Company graded a right of way through these lots, and tore down the fencing. The defendant, in 1886, was organized as a railroad company, and took deeds from the various owners who had succeeded to the rights of the Kansas City, Memphis & Mobile Railroad, among others, to this right of way. In 1887 the defendant took possession and laid its track through these premises. The plaintiffs claim that Mrs. Ragan never parted with her title, and has not been paid for the right of way. The defendant claims that the Kansas City, Memphis & Mobile paid Mrs. Ragan's husband $600 in full for the right of way; that he was her duly-authorized agent for that purpose; and that, in pursuance of that...