Railway Co. v. Haake

• Decision Date: 22 October 1932
• Docket Number: No. 29337.,29337.
• Citation: 53 S.W.2d 891
• Court: Missouri Supreme Court
• Parties: KANSAS CITY & GRANDVIEW RAILWAY COMPANY v. CHARLES G. HAAKE ET AL., THOMAS T. MOORE, Defendant-Appellant.

53 S.W.2d 891

KANSAS CITY & GRANDVIEW RAILWAY COMPANY v. CHARLES G. HAAKE ET AL., THOMAS T. MOORE, Defendant-Appellant.

No. 29337.

Supreme Court of Missouri, Division One.

October 22, 1932.^*

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.

REVERSED AND REMANDED.

Gossett, Ellis, Dietrich & Tyler and Burrus & Burrus for appellant.

(1) For the purpose of establishing values, county assessment valuations of lands, in which the landowner does not in any manner participate or make a return, are not as against him admissible in evidence. Wilcoxson v. Darr, 139 Mo. 671; Wells v. Beedy, 161 Mo. 642; Steam Stone Cutter Co. v. Scott, 157 Mo. 526; Moffitt v. Hereford, 132 Mo. 521; St. Louis, etc., Ry. Co. v. Fowler, 142 Mo. 677; Raney v. Lewis, 167 S.W. 604; Kennedy v. Holliday, 25 Mo. App. 511; 22 C.J. 178, sec. 122; 22 C.J. 183, sec. 137; St. Louis, etc., Ry. Co. v. Magrees, 93 Ark. 46, 123 S.W. 786; Ft. Collins Development Co. v. France, 41 Colo. 512, 92 Pac. 953; Denver, etc., Railroad Co. v. Hickman, 45 Colo. 470; Hildreth v. Longmonth, 47 Colo. 79, 105 Pac. 107; Schumaker Co. v. Munsey, 37 App. D.C. 95; Kennedy v. Holiday, 25 Mo. App. 511; Griffith v. Johnson, 1 Har. 136; Scott v. O'Neil's Admr., 62 S.W. 1042; Rose v. Lockerby, 116 Mich. 277, 74 N.W. 476; Concord Land & Water Co. v. Clough, 69 N.H. 609, 45 Atl. 565; Ridley v. Railroad Co., 124 N.C. 37, 32 S.E. 379; San Antonio v. Diaz, 62 S.W. 549; Bartlett v. Pattaton, 33 W. Va. 71, 10 S.E. 21, 5 L.R.A. 523, (2) In connection with evidence of sales of other lands in the vicinity, the party against whom the evidence is offered is entitled to show any and all circumstances tending to affect the prices at which such other sales were made. State v. Dickson, 213 Mo. 100; St. Louis, etc., Ry. Co. v. Clark, 121 Mo. 185; Brinkerhoff Trust Co. v. Home Lumber Co., 118 Mo. 477; Mo. Pac. Ry. Co. v. Porter, 112 Mo. 361; Met. St. Ry. Co. v. Walsh, 197 Mo. 392; Moffitt v. Hereford, 132 Mo. 513.

Cyrus Crane, Winston H. Woodson and James F. Walsh for respondent.

(1) There was no error in permitting plaintiff to show as a part of plaintiff's cross-examination of appellant the assessed value of appellant's property. Steam Stone Cutter Co. v. Scott, 157 Mo. 526; Railroad Co. v. Brick Co., 198 Mo. 711, 96 S.W. 1011; Central Pac. Ry. Co. v. Feldman, 92 Pac. 852; St. Louis v. Busch, 252 Mo. 220: Nickey v. St. Louis, etc., Co., 135 Mo. App. 661; North v. Natl. Life & Accident Ins. Co., 231 S.W. 665. (2) There was no error in excluding evidence concerning the sale of the Force and Kirk properties. (3) There was no error in the rulings of the court on questions of evidence. School District v. Phoenix, etc., Co., 297 Mo. 332, 249 S.W. 51; Hewitt v. Price, 204 Mo. 31; Rourke v. Ry. Co., 221 Mo. 46; Rourke v. Ry. Co., 221 Mo. 46; Railroad v. Blechle, 234 Mo. 478; School District v. Phoenix, etc., Co., 297 Mo. 332; Hewitt v. Price, 204 Mo. 31; Rourke v. Ry. Co., 221 Mo. 46; 22 C.J. 124, p. 179; School District v. Phoenix, etc., Co., 297 Mo. 332, 249 S.W. 51; Hewitt v. Price, 204 Mo. 31; Rourke v. Ry. Co., 221 Mo. 46; Met. St. Ry. Co. v. Walsh, 197 Mo. 392, 94 S.W. 860; Met. St. Ry. Co. v. Walsh, 197 Mo. 392, 94 S.W. 860. (4) There was no error in the giving of Instruction C-1. Railroad v. Blechle, 234 Mo. 483; St. Louis, etc., Ry. Co. v. Knapp, etc., Co., 160 Mo. 411. (5) There was no error in giving Instruction P-1. (6) (a) There was no error in the giving of Instruction P-2. Prairie Pipe Line Co. v. Shipp, 305 Mo. 671; Springfield v. Schmook, 68 Mo. 395; The Stock Yards Case, 120 Mo. 541; Met. St. Ry. Co. v. Walsh, 197 Mo. 418. (b) There was no error in giving Instruction P-3. Springfield v. Schmook, 68 Mo. 394; St. Louis, etc., Co. v. Knapp, etc., Co., 160 Mo. 396. (7) The verdict and judgment are supported by substantial evidence and should be affirmed by this court. Prairie Pipe Line Co. v. Shipp, 305 Mo. 673; St. Louis v. Railroad, 272 Mo. 87; St. Louis v. Worthington, 19 S.W. (2d) 1068; St. Louis v. Schopp, 30 S.W. (2d) 734.

STURGIS, C.

Condemnation for right of way for a railroad by plaintiff over the lands of defendant. Several landowners were made parties defendant to the proceedings in the circuit court, but this appeal involves only the land of the defendant Thomas T. Moore, who will be referred to in this opinion as the defendant. He owned in all one hundred eighty acres of land about two miles south of the limits of Kansas City and the proposed railroad extends from Kansas City south to Grandview, a distance of some twelve or thirteen miles, and crosses the land in question. Commissioners were appointed in the circuit court to assess the damages, and, exceptions being filed to their report, issues were framed and tried to a jury on the question of damages in that court. A large amount of evidence was heard on either side, the defendant Moore taking the opening and closing. The evidence was wholly on the amount of damages and was very contradictory. The trial resulted in a verdict and judgment for defendant in the sum of $7500, from which defendant has appealed. He complains that errors were made in trying the case in admitting and rejecting evidence, and in the instructions given.

The defendant's land is situated on both sides of a north and south paved highway called Hillcrest Road, there being sixty acres west of this road and one hundred twenty acres east. The damages assessed was to the one hundred twenty acres east of this road. The railroad right of way in question is one hundred twenty feet wide and extends across one forty, the Northeast quarter of the Northwest quarter of Section 36, sometimes called the east or northeast forty. The other eighty acres of the one hundred twenty-acre tract east of the highway is the West half of the Northwest quarter of that section, and Hillcrest Road runs along the west side of this eighty. The dwelling house and improvements are near the Hillcrest Road on the south forty of this eighty. The railroad enters this east forty acres near the middle of its north line and extends south with a curve to the east and passes off the defendant's land near the southeast corner of this forty acres. The land slopes to the south and the railroad enters the east forty acres of the land from the north in a cut over thirty feet deep and leaves it on a fill over twenty feet high. The railroad cuts off eight or nine acres on the east side of this forty, leaving twenty-eight or twenty-nine acres in a body with the west eighty. There is an east and west public road on the north of this land but not so well improved as that on the west. The land was at the time being used as a dairy farm. No damage was shown or allowed to the sixty acres west of the Hillcrest road.

There was a large number of witnesses on each side who testified to the damages caused by the right of way being taken and consequent damages to the remainder of the one hundred twenty-acre tract, such, damages being estimated on the value of the land actually taken and the decrease in the fair market value of the balance of the tract with and without the railroad being constructed there. The question of the fair market value of the land without the railroad crossing it was sharply contested and with much difference of opinion. The evidence for defendant showed the land to be reasonably worth from $850 to $1000 per acre. That of the plaintiff put the fair market value at $400 or $500 per acre. Plaintiff's witnesses placed the damages at not over $2000 for the land actually taken and the damages to the other land correspondingly low, making a total damage of from $4000 to $6000. Some of the witnesses said the west eighty acres of the one hundred twenty acres was not damaged at all. The defendant's witnesses fixed the damages at about $4000 for the land actually taken and the damages to the other land correspondingly high, making a total damage of $25,000 to $30,000. The jury fixed the damages at $7500

[1] The first error which we are called on to consider is that the trial court allowed the plaintiff to put in evidence, over defendant's objections the assessed valuation for general taxation of the land in controversy for the year 1927, the date of the condemnation. It was shown in this connection that defendant Moore did not make out any assessment list covering this land giving its value; that he had nothing to do with or knowledge of the assessment and in no way assented to this assessment or valuation. He paid the taxes assessed, but that is all, and he said he gave the matter no attention. The objection made by defendant to this evidence is that this assessment is not a true criterion of value; that defendant Moore was not consulted and had nothing to do with the assessment; that it is ex parte and in the nature of hearsay.

Unless there is something to take this out of the general rule, we think the objections to this evidence should have been sustained. Unquestionably, the law is, and ought to be, that the valuation placed upon property by a public official for purposes of taxation only is not competent evidence to go to a jury on a litigated question of the value of the land. If it can be shown that the landowner has himself placed a value on the property in question, whether for taxation or otherwise, or has in some way assented or even acquiesced in fixing the valuation, then such evidence might well be proper on cross-examination and as contradictory of such witness. On this, however, the authorities are not all agreed. [Jackson v. Goldberg (Tex.), 283 S.W. 860; Vineyard Grove Co. v. Town of Oak Bluff's (Mass.), 163 N.E. 888.]

The rule of law is stated in 22 Corpus Juris, 178, thus: "The general rule is that a valuation made by public officials for the purpose of taxation, especially when remote in point of time, is not relevant to aid a jury in assessing the value of land or buildings, unless such valuation is based on a statement by the owner, in which...