Ragan v. Kansas City & Southeastern Railroad Company
| Decision Date | 14 June 1898 |
| Citation | 46 S.W. 602,144 Mo. 623 |
| Parties | Ragan et al. v. Kansas City & Southeastern Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. V. C. Karnes, Special Judge.
Affirmed.
Johnson & Lucas for appellant.
(1) Instruction numbered 1, given at request of plaintiffs, was erroneous. First. Because it told the jury that it was admitted that plaintiff, Lucinda H. Ragan, had the title. There was no such admission in the evidence. Mather v Walsh, 107 Mo. 121; Wilkerson v. Eilers, 114 Mo. 245. Second. Whether the Kansas City, Memphis & Mobile Railroad Company, its successors or assigns, had possession for ten years was a controverted question of fact to be found from the evidence. The court could not properly take it from the jury. Cook v. Railroad, 63 Mo. 398. Third. Whether defendant's entry was illegal, depended on the duration and character of the possession of defendant's grantors. These were questions of fact which the jury should have been permitted to pass on. Kelly v. Railroad, 70 Mo. 604. (2) Instruction three given for plaintiff was clearly erroneous. First. It introduced a new element of damage into damage cases -- the quality of the land taken. There was no allegation in the petition that the land taken was of any particular quality, nor were any damages claimed on that account; therefore, the jury was not at liberty to consider any characteristics or attributes of the right of way over the lots of plaintiffs distinguishing them from other parts of the right of way, or distinguishing the part taken from the parts remaining. Glass v. Gelvin, 80 Mo. 297; Woods v. Campbell, 110 Mo. 572; Bergeman v. Railroad, 104 Mo. 77. Second. It allows the jury to add interest to any sum they may arrive at as the amount of the damages, but does not require the plaintiffs to account for rents received by them after the date of the taking, and the testimony shows that rents were received. Plum v. Kansas City, 101 Mo. 525; Metter v Railroad, 37 N. J. Law, 222. (3) Instructions numbers 2 3 and 5, asked by the defendant, should have been given. The possession by a railroad company of any part of the roadbed graded by it for its railroad, is the possession of the whole, because it is an entirety, and whether the predecessors of defendant had such possession was a question that should have been submitted to the jury. Stewart v. Jones, 40 Mo. 140; Railroad v. Doe, 114 U.S. 340. (4) Instruction number 9, asked by defendant, should have been given. Although the statute authorizes a railroad company to take, not exceeding one hundred feet in width, for its right of way, it does not compel it to do so. It was for the jury to say whether defendant took one hundred feet or less, and if it took less, the damages should have been proportionately reduced. R. S. of 1879, sec. 765; Railroad v. Barrett, 43 Am. and Eng. R. R. Cases, 595; Railroad v. Railroad, 85 Ill. 211. (5) The defendant disclaimed any interest in the land, and the recovery of plaintiff should have been limited to the damages actually sustained. This included injury to the land in the temporary use and occupation thereof, not the permanent appropriation of the same; the record shows that the use and occupancy was temporary, not permanent and the measure of damages was such as had been actually sustained to the time of the trial, and not such as arose out of a permanent appropriation of the land. Walker v. Railroad, 57 Mo. 275; Bradley v. Railroad, 91 Mo. 500; Childs v. Railroad, 117 Mo. 432; Mill's Em. Dom. [1 Ed.], sec. 312; Lewis' Em. Dom., sec. 655; Art. II, sec. 21, Const. 1874. (6) The assessment of damages must be as of the date of trial, and of necessity as to the condition of the property at that time, plaintiff securing full compensation for all injuries suffered to that date. Railroad v. Town Site Co., 103 Mo. 463; Railroad v. Clark, 121 Mo. 194; In re Forsythe Boulevard, 127 Mo. 421.
Wash. Adams and N. F. Heitman for respondents.
(1) On the proposition that the appeal ought to be dismissed for insufficiency of the abstract, we cite the following authorities: Brand v. Cannon, 118 Mo. 595; Snyder v. Free, 102 Mo. 325; Thompson v. Allen, 107 Mo. 479; Cunningham v. Railroad, 110 Mo. 208; Brown v. Murray, 53 Mo.App. 184; Carlisle v. Russell, 127 Mo. 465; Trimble v. Nollman, 62 Mo.App. 541; Garrett v. Coal Mining Co., 111 Mo. 279; Johnson v. Carrington, 120 Mo. 315; Mills v. McDaniel, 59 Mo.App. 331; Graig v. Scudder, 98 Mo. 665. (2) The pretended disclaimer came too late. On this point see, especially: Gray v. Railroad, 81 Mo. 135; In Re Water Comm'rs, 31 N. J. Law 72. This case shows the legislative intention as to how soon disclaimer must be made to escape liability for permanent appropriation. Railroad v. DeLissa, 103 Mo. 129; Soulard v. St. Louis, 36 Mo. 547; Hickerman v. Mexico, 58 Mo. 61; Lafayette v. Shulty, 44 Ind. 97; Farnsworth v. Boston, 121 Mass. 173; Jamison v. Springfield, 53 Mo. 231. (3) The cases distinctly recognize the principle that "by the judgment establishing and locating the highway, before any act done toward fitting it for use, the rights of the parties are fixed and vested," and the public acquire a right to the public easement as long as it shall be their pleasure to use it. And the right of the owner of the land over which it passes, to his compensation, is complete." Hampton v. Coffin, 4 N.H. 517. "Abandonment of the road will not justify recovery by the company of money paid out to the landowner." Stiles v. Midlesex, 8 Vt. 440; Neal v. Railroad, 31 Pa. St. 19; Crowner v. Railroad, 9 How. Pr. (N. Y.) 457; Rogers v. St. Charles, 3 Mo.App. 41; Hupert v. Anderson, 35 Iowa 578; In re Rhinebeek, 67 N.Y. 242; People v. Syracus, 20 How. Pr. (N. Y.) 491. (4) One who takes a conveyance or mortgage from a company having possession of an individual's land, for the purpose of public use, either before or after condemnation, takes it subject to the right of the owner to compensation. St. Louis Co. v. Clark, 119 Mo. 357; Railroad v. Ortiz, 75 Tex. 602; Borough of Easton, 47 Pa. St. 255; Water Co. v. Moyer, 99 Pa. St. 615; Drury v. Railroad, 127 Mass. 571; White v. Railroad, 7 Heisk, 518; Railroad v. Griffin, 107 Ind. 464; Penn. Ins. Co. v. Heiss, 141 Ill. 35; Railroad v. Hammond, 132 Ind. 475; Martin v. Fillmore Co., 44 Neb. 719; Railroad v. Mitchell, 74 Ill. 394. (5) A possible reverter is never contemplated in the assessment of damages for land taken by a railroad. The appropriation is regarded as permanent, and the damages are awarded on that basis. Miner v. Railroad, 123 N.Y. 242; Mills on Em. Dom., sec. 87; Clayton v. Railroad, 67 Iowa 238; Railroad v. Knolfli, 82 Tex. 270. (6) There is nothing in the first assignment of error because the additional abstract shows that the court made no error in regard to the admission or exclusion of evidence, and because the defendant can not complain on this line by reason of its insufficient abstract. (7) There was no error in respondent's instruction 1 in reference to interest. Webster v. Railroad, 116 Mo. 121; Jones v. Railroad, 70 Ala. 227.
This is an action for damages for the appropriation by defendant for its right of way of a strip of land one hundred feet wide through two lots in Westport, Jackson county, Missouri. The case was before this court on a former occasion (111 Mo. 456). The lots have a frontage of one hundred and thirty-two feet on Mill street, and are one hundred and twenty feet in depth.
In 1874 the Kansas City, Memphis & Mobile Railroad Company graded a roadbed across the lots, pulling down the fencing around the same, and part of a shedroom attached to a house. This company did not pay anything for the land taken, nor did it condemn it for right of way. From 1874 to 1887 nothing was done on the roadbed over these lots by sad railroad company. Nor was the right of way in its actual adverse possession for more than ten years before 1889. In the latter part of the year 1886 the entire line of the Kansas City, Memphis & Mobile Railroad Company, including whatever rights that company had in the right of way over the lots in question, had been acquired by mesne conveyances and was owned by the Kansas City & Southeastern Railroad Company. About the same time this last named company leased, during its corporate existence, to the defendant, its graded roadbed, including that over the lots in question, which, under this authority, in the year 1887, took possession of the graded roadbed, including that part of it extending across the lots and laid a track on it, and ran trains over it for about three years, after which time it asserted no claim to that part on the lots claimed by the plaintiff, Mrs. Ragan, but removed therefrom its ties and rails. Other facts if deemed necessary will be hereafter stated in the opinion. Plaintiffs recovered a verdict for $ 2,000. They thereafter remitted $ 500 of this sum, and judgment was rendered in their favor for $ 1,500. Defendant appealed.
Before the case was argued in this court plaintiffs filed their motion to dismiss the appeal because of the insufficiency of the abstract for the alleged grounds that it does not set forth so much of the record as is necessary to a full and complete understanding of all questions presented to this court for decision; and does not set forth a copy of so much of the record as is necessary to be consulted in the disposition of all the assigned errors. While the abstract is not as complete as it should be, it is not we think so imperfect as to justify a dismissal of the appeal upon that ground. It seems to be a substantial compliance with the rules of this court.
Several rulings of the court on the admission...
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