Sebastian Bridge Dist. v. Missouri Pac. R. Co.
Decision Date | 09 August 1923 |
Docket Number | 6051. |
Citation | 292 F. 345 |
Parties | SEBASTIAN BRIDGE DIST. v. MISSOURI PAC. R. CO. |
Court | U.S. Court of Appeals — Eighth Circuit |
James B. McDonough, of Ft. Smith, Ark., for plaintiff in error.
Thomas B. Pryor, of Ft. Smith, Ark. (Edward J. White, of St. Louis Mo., on the brief), for defendant in error.
Before STONE, Circuit Judge, and TRIEBER and JOHNSON, District Judges.
By a special act of the Arkansas Legislature (Acts 1913, p. 380) the Sebastian bridge district was organized for the purpose of building a free vehicular bridge across the Arkansas river from a designated point in Garrison avenue, Ft. Smith, Ark. The act defined the boundaries of the district; authorized payment for the improvement by benefit assessments; limited assessments to 10 per centum of the assessed valuation of the real estate benefited; prescribed actual benefits as the basis of apportionment; and provided that railways should be assessed the same as other property 'except that said assessment should be made per mile. ' Under the act, this assessment was made by a board of assessors. From the determination of the board an appeal was allowed to a board of commissioners and from the commissioners to the county court. The assessors determined a horizontal benefit of 10 per centum on the actual value (as found by them) to all real estate in the district. This railway, having been assessed appealed to the commissioners and, in turn, to the county court, at which latter point it removed the matter to the federal court, where a hearing was had before a jury. The verdict was that this property was benefited, but not to the extent found by the assessors; that this property was not discriminated against by the assessors and that the assessors had not considered damage or injury (including loss of tolls from a nearby toll bridge owned and operated by this railway) from the improvement as affecting the net benefits to be derived therefrom. Upon this verdict the court entered a judgment, which recited that:
' * * * It appearing from said verdicts that the property of the defendant will not be benefited 10 per cent. of its value over and above the injury or damage to its property, and it further appearing from answer to special interrogatory that the board of assessors did not take into consideration in assessing the benefits any damage to the property (or) loss of tolls resulting from the construction of the bridge,'
-- and canceled the assessment of benefits against this railway. From that judgment, the district has sued out this writ of error.
While this case was argued and submitted with that of St. Louis-san Francisco Railway Company v. Sebastian Bridge District, the issues presented here in the two cases and which we find necessary to determine are different. In the other case, the jury found that the assessors considered 'any damage to said railroad property resulting from the construction of the bridge' and concluded that the actual benefit 'over any injury or damage to said property' equaled the amount assessed and, also, that there was no discrimination against that property. In this case, the jury found that the assessors had not considered 'any damage of said property (or) loss of tolls resulting from the construction of the bridge' and that the property, although benefited, was not benefited to the amount assessed.
The points argued here as error are (1) permitting the jury to consider the matter of alleged damages as an offset in determining benefits; (2) permitting the jury to consider loss of tolls on defendant in error's toll bridge as such an offset; (3) refusal to charge that the act of the Legislature creating the boundaries of the district determined that all real property therein would be benefited; (4) refusal to charge that the jury should consider, as benefits, the saving to the railway in not being compelled to build a viaduct over its tracks where they were crossed by the bridge; (5) refusal to charge that increased business of the railway in immediate connection with the building of the bridge might be considered as benefits; (6) improper argument to the jury by counsel for the railway; (7) refusal to direct verdict on the pleadings and verdict of the jury.
In order to concentrate consideration upon the really important propositions involved here, it is helpful to employ a process of elimination by disposing of those which cannot be controlling upon this appeal. This elimination will apply to the third, fourth, fifth, and sixth propositions above stated.
The third proposition is based on the refusal of two requests to charge as follows:
'Under the legislative act creating this district, the presumption is that every piece of real property located in this district is benefited to some extent.'
The sole benefit which could have ensued to plaintiff in error through having these requests given would have been to gain the weight of a presumption that some benefit to this property existed. These requests recognized the power of the assessors to find that, in fact, no benefit did exist. The plaintiff in error fully secured the practical and substantial effect of these requests when the court charged that:
Also, the jury found that there was a benefit. Therefore, conceding (without deciding) that the requests were proper, yet the above convinces that no prejudice resulted from the refusal to give them.
The fourth proposition is not preserved in the record and cannot be considered.
The fifth proposition is that the court erred in the portion of the charge following:
For the reasons therein given, the charge as given correctly stated the law.
The sixth proposition relates to two statements made during argument by counsel for defendant in error. The first of these statements was:
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St. Louis-San Francisco Ry. Co. v. Sebastian Bridge Dist.
... ... considered in computing benefits. This is so for ... [293 F. 735.] ... the reasons set forth in Sebastian Bridge District v ... Missouri Pac. R. Co. (C.C.A.) 292 F. 345 ... The ... judgment should be modified by elimination of the double ... assessments above set forth in ... ...
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McCormick v. United States
...(C. C. A.) 294 F. 145. This court will not presume prejudice from the mere existence of possible error. Sebastian Bridge District v. Missouri Pacific R. R. Co. (C. C. A.) 292 F. 345. The rule announced in these decisions applies equally to criminal Section 269 of the Judicial Code, as amend......
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Road Improvement Dist. No. 1 v. Missouri Pac. R. Co.
...afforded on account of additional traffic incident to the building of the highway should be considered. Sebastian Bridge Dist. v. Missouri Pac. R. Co. (C. C. A.) 292 F. 345. The plaintiff in error again contends that the acts of the Legislature in attempting to confirm and validate the asse......
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Sarkisian v. United States
...(C. C. A.) 294 F. 145. Possible prejudice is not sufficient to invoke the exception to this salutary rule. Sebastian Bridge Dist. v. Missouri Pacific Railway Co. (C. C. A.) 292 F. 345. It is not claimed that the evidence in this case does not sustain the verdicts of the jury. We have read t......