Springfield Southwestern Ry. Co. v. Schweitzer

• Citation: 158 S.W. 1058
• Parties: SPRINGFIELD SOUTHWESTERN RY. CO. v. SCHWEITZER et al.
• Decision Date: 18 July 1913
• Court: Court of Appeal of Missouri (US)

158 S.W. 1058

SPRINGFIELD SOUTHWESTERN RY. CO. v. SCHWEITZER et al.

Springfield Court of Appeals. Missouri.

July 18, 1913.

Rehearing Denied August 5, 1913.

1. COURTS (§ 91)—PRECEDENTS—DECISIONS OF HIGHER COURT.

Where the Supreme Court has ruled in no uncertain terms on a question of law, it is the duty of a Court of Appeals to follow that ruling.

2. EMINENT DOMAIN (§ 95)—ELEMENTS OF COMPENSATION—EXPENSE OF REMOVING PERSONAL PROPERTY.

A tenant of land, condemned under a lease having several years to run, was not entitled to reimbursement for the expense of removing personal property from the condemned premises, as the expense of removing personal property is allowed only where it lessens the damages to remaining real estate not taken by condemnation.

3. DAMAGES (§ 62)—DUTY OF INJURED PERSON TO REDUCE.

When a man's property is injured or damaged, it is his duty, by all reasonable precaution and expense, to reduce the damage as much as possible.

4. EMINENT DOMAIN (§ 95)—ELEMENTS OF COMPENSATION—DAMAGES TO PERSONAL PROPERTY.

Under the constitutional provision that property shall not be taken or damaged without just compensation, where it was necessary to remove personal property from condemned premises, and it could not be moved without being damaged, the owner of such personal property was entitled to compensation for the damages caused by moving it.

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Condemnation proceeding by the Springfield Southwestern Railway Company against Jacob C. Schweitzer and another. From the judgment plaintiff appealed to the Supreme Court, which court (246 Mo. 122, 151 S. W. 128) transferred the cause to this court. Reversed and remanded.

Robert T. Railey, of St. Louis, and Barbour & McDavid, of Springfield, for appellant. John Schmook and T. J. Murray, of Springfield, for respondents.

FARRINGTON, J.

The appeal in this case was first taken to the Supreme Court, from which the cause had been transferred to this court (246 Mo. 122, 151 S. W. 128), for the reason that the title to real estate is not involved.

The plaintiff, on January 22, 1906, filed in the circuit court of Greene county a petition to condemn certain property owned by Jacob C. Schweitzer, on which was located the plant of the New Phœnix Foundry & Machine Company, which held a lease on a part of the Schweitzer property for a term of one year, terminating on December 30, 1905, but which contained a provision for renewal for a term of three years, at a fixed rental of $50 per month, and the foundry company had exercised its option to renew. This company, the party defendant principally interested in this appeal, operated on the leased premises a foundry in which was stored machinery necessary for the operation of such a business, as well as pig iron, merchandise, tools, loose materials, and personal property which usually goes with such a business. Appraisers were appointed by the circuit court to view the property, and they placed the damages to be paid by the plaintiff for the taking of this particular tract of land at $4,200, but did not apportion this amount between Schweitzer, the landowner, and the defendant foundry company. In due time exceptions were filed by both Schweitzer and the foundry company. The venue of the case was changed to Polk county. Before the case came on for trial in the circuit court of Polk county on exceptions to the report of the appraisers, the plaintiff and Schweitzer compromised their differences, the evidence showing that Schweitzer was paid $6,800 for the entire tract of land taken, a part of which was the land on which was located the foundry, and that he executed a deed to the entire fee to the plaintiff, and dismissed his exceptions to the report of the appraisers. The cause was proceeded with on the exceptions filed by the foundry company, and the court, sitting as a jury, found that the damage to the land on which the foundry was located, exclusive of and independent of any special value of the leasehold held by the foundry company, was $6,000, and found that in order to continue the business of the foundry company, and to preserve its machinery and materials from loss and destruction, it was necessary to remove them to another place. This was accomplished by the foundry company, and the necessary expense incurred in the removal was $634.31, besides a loss of fire brick, which the evidence shows were broken and damaged by reason of the removal amounting to $86. It was found that the expense of removing the pig iron, tools, loose materials, engine, machinery, etc., together with the damage to the fire brick, estimated at $86, amounted to $720.31 in excess of the rental value of the property, and for this amount judgment was entered against the plaintiff in favor of the foundry company. There is evidence to the effect that the plaintiff and Schweitzer were co-operating in this transaction; and, reading the evidence, coupled with the fact that Schweitzer was fully settled with, one is led to believe that they were standing together in the controversy. The foundry company undertook to show the damages it sustained by reason of the removal, in that it lost customers, and that the building to which it moved was not as well located for such business as was the old plant. The court found against it on these claims, and placed the finding and judgment for the $720.31 solely on the necessary removal expenses which were incurred by the foundry company in taking its property to the new location, and the damage to the fire brick occasioned by breakage. Plaintiff objected and excepted to the admission of testimony showing the cost and expense of removal, asked in its refused declarations of law that this item be not taken into consideration, and raised the question in its motion for a new trial, and again in this court in its assignment of errors.

The sole question before this court is whether a tenant, with a lease three years yet to run, has a right, when the property to which his lease attaches is taken on condemnation proceedings, to be reimbursed for the expense incurred in removing his personal property from the place taken, and whether he is entitled to recover for the damages sustained by said personal property in moving by breakage and deterioration. The majority of the courts hold that compensation cannot be recovered for the cost of removing personal property from the condemned premises. See Mo. Pac. Ry. Co. v. Porter, 112 Mo. 361, 20 S. W. 568; St. Louis, etc., R. Co. v. Knapp-Stout, etc., Co., 160 Mo. 396, 61 S. W. 300; Edmands v. Boston, 108 Mass. 535; Cobb v. Boston, 109 Mass. 438; Williams v. Com., 168 Mass. 364, 47 N. E. 115; Ranlet v. Concord R. Corp., 62 N. H. 561; New York Cent. R. Co. v. Pierce, 35 Hun (N. Y.) 306; New York, West Shore & Bluff Ry. Co. v. Cosack, 35 Hun (N. Y.) 633; Becker v. Philadelphia, etc., Terminal R. Co., 177 Pa. 252, 35 Atl. 617, 35 L. R. A. 583; 8 Ann. Cas. 696, note, 4 L. R. A. (N. S.) 890, note. The courts of Kansas, Illinois, Oklahoma, and, at one time, Pennsylvania, held contra. See Blincoe v. Choctaw, O. & W. R. Co., 16 Okl. 286, 83 Pac. 903, 4 L. R. A. (N. S.) 890, 8 Ann. Cas. 689; Atchison, etc., R. Co. v. Schneider, 127 Ill. 144, 20 N. E. 41, 2 L. R. A. 422; Getz v. Philadelphia & R. R. Co., 105 Pa. 547; s. c., 113 Pa. 214, 6 Atl. 356.

The reasons for not allowing this damage are: (1) That the tenant would have to move anyhow, and this is one of the incumbrances attaching to the act of placing personal property on leased premises; (2) it is not within the...