Restetsky v. Delmar Ave. & C. R. Co.

• Decision Date: 26 April 1904
• Citation: 85 S.W. 665,106 Mo. App. 382
• Parties: RESTETSKY et al. v. DELMAR AVE. & C. R. CO.
• Court: Missouri Court of Appeals

85 S.W. 665

106 Mo. App. 382

RESTETSKY et al. v. DELMAR AVE. & C. R. CO.

St. Louis Court of Appeals. Missouri.

April 26, 1904.

EMINENT DOMAIN — RAILROADS — INJURY TO PROPERTY — EXCAVATION OF STREET — IDENTITY OF ALLEGED WRONGDOER — QUESTION FOR JURY — PARTIES PLAINTIFF — EXPERT TESTIMONY — EFFECT — INSTRUCTION — SUPERFLUOUS WORDS — APPEAL.

1. In an action against a railroad for damage sustained by the alleged excavation of a street, evidence examined, and whether the defendant did the excavating held a question for the jury.

2. In an action for damages sustained by the excavation of a street on which plaintiffs' lot abutted, where it appeared that the original grantors under whom the plaintiffs claimed had subdivided the land containing the street and lot in question 16 years before the excavation occurred, and that the plaintiffs and those under whom they claimed had been in adverse possession of the lot during that period under color of title, and claiming to own it, the plaintiffs showed sufficient title to enable them to maintain the action against the defendant as a wrongdoer.

3. Where the original proprietors of land, in subdividing it, declared on the plat filed and recorded by them that the streets were reserved for the private use of the present and future occupants of the lots of the subdivision, the reservation vested in persons subsequently holding the lots, in grant, the use of the streets in connection with their property, and entitled them to compensation for an unauthorized excavation of the streets to such an extent as to destroy access to their property in the subdivision.

4. The county court has no control over private ways, and its grant of authority to a railroad to grade public roads in the construction of its line gives the railroad no authority to grade private ways.

5. The jury should consider the testimony of experts, but they are not bound by it where it appears to be unreasonable.

6. In an action for damage to real estate by the grading of streets so as to deprive the plaintiffs of access to their property, where the court instructed that evidence of experts "and others" concerning the value of the plaintiffs' lot before and after grading, and the actual damage done thereby, was not binding on the jury, but that the jury might apply their own judgment and knowledge as to such values and damage in arriving at their verdict, in connection with the testimony offered in the case at the trial, the words "and others" were superfluous and nonprejudicial.

Appeal from St. Louis Circuit Court; J. A. Blevins, Judge.

Action by one Restetsky and others against the Delmar Avenue & Clayton Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Boyle, Priest & Lehmann, George W. Easley, and Crawley & Jamison, for appellant. Joseph A. Wright, for respondents.

GOODE, J.

Plaintiffs are averred to be the owners and in possession of lot 1, block 3, of Rogers' Subdivision of Benton Place, a platted piece of ground just outside the limits of the city of St. Louis; abutting on two streets in said subdivision, Vine and South. The tract contains 15 acres, and was subdivided into lots and suitable roads and ways, designated as streets, April 17, 1884, by its then owners, George and Jane Rogers. On the plat of the subdivision, duly acknowledged and recorded, was the following certificate:

"St. Louis, Mo., April 17, 1884. We, the undersigned, proprietors of a fifteen-acre tract in Gratiot League square, U. S. survey 2037, township 45 north, range 6 east, certify that we have subdivided said tract as represented in the above plat, and that Vine street, fifty feet wide, High street, forty feet wide, Centre street, forty feet wide, and South street, forty feet wide, are reserved for the private use of the present and future occupants and proprietors of said subdivision and not dedicated for public use.

"Witness our hands and seals the day and year first above written. George Rogers. [Seal.] Jane Rogers. [Seal.]"

Plaintiffs' lot was conveyed by the Rogerses to Katherine Riley's trustee July 9, 1888, and by Katherine Riley, through her trustee, Richard L. Knott, to the plaintiffs, September 26, 1890. It is agreed that those deeds conveyed to plaintiffs whatever right and title George and Jane Rogers had to the lot, which is described in each deed by its number, and also by metes and bounds. The complaint against the defendant is that in July, 1899, while plaintiffs owned and were in possession of the lot, the defendant illegally entered on the streets named, in front and at the side of the plaintiffs' lot, and dug and removed the dirt from the streets to a depth of eight or ten feet; destroying access to said lot, and changing the course of the drainage, so that large quantities of water flowed down the streets, and washed gullies in them. Damages were prayed for those acts. The answer was a general denial. Evidence to support the charge that the defendant dug and excavated along the streets mentioned, to the damage of plaintiffs' property, was introduced; witnesses testifying to the extent of the damage, but varying in their estimates from more than $2,000 to an inconsiderable amount. At the instance of the plaintiffs the court granted the following instruction, to which an exception was saved: "You are instructed that, in regard to the evidence before you, of experts and others, concerning the value of plaintiffs' lot before and after the grading and cutting down of Vine street and South street, complained of by plaintiffs, and the actual damage done, if any you are not bound by the testimony of such witnesses, but may apply your own judgment and knowledge as to such values and damage in arriving at your verdict, in connection with the testimony offered in the case at trial." The court refused instructions requested by the defendant whose general purport was to deny any right of action to the plaintiffs, on the ground that the streets had neither been dedicated to their use, nor granted to them by the original owners; that no title to the lot or streets was shown in the plaintiffs, and that no evidence was adduced to prove the defendant company committed the alleged torts. The plaintiffs had a verdict for $1,500, but afterwards voluntarily remitted one-half of that amount. This appeal was taken by the defendant.

1. Evidence was put in which sufficed...