St. Johns Levee & Drainage Dist. Hicks

• Decision Date: 10 August 1920
• Docket Number: No. 2607.,2607.
• Citation: 224 S.W. 127
• Court: Missouri Court of Appeals
• Parties: ST. JOHNS LEVEE & DRAINAGE DIST. MISSOURI v. NICKS et al.

224 S.W. 127

ST. JOHNS LEVEE & DRAINAGE DIST. MISSOURI v. NICKS et al.

No. 2607.

Springfield Court of Appeals, Missouri.

August 10, 1920.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Condemnation proceedings by the St. Johns Levee & Drainage District of Missouri against Howell Hicks and others. From judgment entered on defendants' exceptions to commissioners' report, the District appeals. Affirmed.

Gallivan & Finch, of New Madrid, and Russell, Brown & Joslyn, of Charleston, for appellant.

Ward & Reeves, of Caruthersville, and W. B. Amberg, of Hickman, Ky., for respondents.

BRADLEY, J.

Plaintiff levee district instituted condemnation proceedings to condemn a right of way through defendants' farm in Mississippi county. Commissioners were appointed, and assessed the damages at $4,185. Defendants filed exceptions, the issues were submitted to a jury, and a verdict was returned, assessing the damages at $7,000, for which sum judgment was entered, and the district appealed.

Exceptors' farm consisted of 260 acres, practically square in shape. The right of way struck the farm near the southeast corner, and ran northwest and diagonally across it, taking permanently 45 acres. Eleven acres were condemned for temporary use. The commissioners allowed damages to exceptors as follows: To the 45 acres to be used permanently, $3,375; for crops damaged and destroyed, $450; for the 11 acres to be used only temporarily, $110; for moving a barn, which was on the right of way, $250. Exceptors alleged that the amount allowed them by the commissioners `on the items named was wholly inadequate, and that in addition to damages on the named items, they were entitled to consequential damages for the lessening of the value of the remainder of the farm by reason of the location of the levee thereon. All of the items of damage as claimed by exceptors were submitted to the jury, and the correctness of permitting recovery for the consequential damage is the only question here for determination.

Condemnation for right of way by the levee district follows the procedure for condemnation for railroad right of way. Section 26, Laws 1913, p. 249. That damage to the whole tract or residue is a proper element of damage in such cases is not questioned. See Janes v. Levee District, 181 S. W. 697; Doyle v. Railroad, 113 Mo. 280, 20 S. W. 970; Brown v. Railroad, 130 Mo. App. 205, 109 S. W. 70. While the district does not question that the damage to the residue of the farm was a proper element of damage, it, if we understand correctly, says that exceptors have no right under the facts to recover for such consequential damage. This contention is founded on the' fact that at the time exceptors bought the land they knew that the levee would go across it. At the time exceptors purchased the farm the levee district had been organized, and a proposed route surveyed, and what is designated in the record as the "old line" located. When exceptors purchased they had an agreement with their grantor that, if they did not get satisfactory compensation from the levee district for the right of way, he would make any loss good. After exceptors purchased, the first proposed route of the levee was changed, and a "new line" located. This new line was the one on which the levee was constructed, and, according to a map put in evidence, it would appear that the new line was more detrimental to exceptors' farm than would have been the case had the levee been constructed on the original line. But the change of location is not of consequence to exceptors' right to recover for the consequential damages. They purchased the farm with the knowledge that the levee would run across it, and, having purchased with this knowledge, can they recover? Under the facts here we are clearly of the opinion that they can. In Brown v. Railroad, supra, the court instructed that plaintiffs...