St. Louis Belt & Terminal Ry. Co. v. Mendonsa

• Decision Date: 22 February 1906
• Court: Missouri Supreme Court
• Parties: ST. LOUIS BELT & TERMINAL RY. CO. v. MENDONSA et al.

91 S.W. 65

193 Mo. 518

ST. LOUIS BELT & TERMINAL RY. CO. v. MENDONSA et al.

Supreme Court of Missouri, Division No. 1.

February 22, 1906.

1. EMINENT DOMAIN — RAILROAD RIGHT OF WAY—DAMAGES.

In a proceeding by a railroad company to condemn land for a right of way, the depreciation in the value of the land not taken because of the risk of fire from passing locomotives may be considered, but the possibility of the destruction of buildings is not an element of damage.

2. SAME—INSTRUCTIONS.

In a proceeding to condemn land for a railroad right of way, an instruction that in estimating the damages the jury should not consider any supposed inconvenience arising from the noise and smoke, or the liability of injury to plaintiff's property by fire set by passing trains, was not harmless as merely omitting to mention the question of the depreciation in the value of property not taken because of the danger of fires, but affirmatively precluded any consideration of that depreciation from that cause, and was erroneous.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Condemnation proceedings by the St. Louis Belt & Terminal Railway Company against Julia F. Mendonsa and others. From an order granting defendants' motion for a new trial, plaintiff appeals. Affirmed.

J. E. McKeighan, for appellant. Robt. L. Shackelford. for respondents.

MARSHALL, J.

This is a proceeding to condemn 2 43/100 acres of the defendants' land, lying in St. Louis county and about a mile west of the city limits, and being a portion of a certain tract of 18 acres, owned by the defendants and heretofore laid out and platted for residence property, and known as "Maplewood Heights," for a right of way for the plaintiff railroad. The commissioners allowed defendants $10,000 damages. The court sustained exceptions to the report of the commissioners and awarded a trial by jury. The jury assessed the defendants' damages at the sum of $5,600. The defendants filed a motion for a new trial, alleging, among other grounds, that the court gave improper and illegal instructions at the request of the plaintiff and of its own motion. The trial court sustained the motion for a new trial on the ground that it had erred in giving the third instruction asked by the plaintiff, which was as follows: "The court instructs the jury that, in estimating defendants' damages, it should not take into consideration any supposed inconveniences arising from the blowing of whistles, or the noise and smoke of trains, nor the liability of danger or injury to defendants' property by fire set out by passing trains, nor the possibility of animals on defendants' land becoming frightened by passing trains." Thereupon the plaintiff appealed to this court from the order granting a new trial.

1. The only error assigned by appellant is the action of the trial court in granting a new trial, for the reason that it held that the third instruction given by the court at the plaintiff's request was erroneous. This was the only instruction given in the case which in any manner referred to the liability of danger or injury to defendants' property by fire set out by passing trains. The defendants claim that the instruction was erroneous under the rules laid down by this court in Railroad v. McGrew, 104 Mo. 282, 15 S. W. 931, and Mathews v. Railroad, 121 Mo. 298, 24 S. W. 591, 25 L. R. A. 161. On the other hand, plaintiff contends that the instruction was proper under the ruling of this court in Railroad v. Donovan, 149 Mo. 93, 50 S. W. 286, and Railroad v. Shoemaker, 160 Mo. 425, 61 S. W. 205.

In Railroad v. McGrew, supra, the trial court instructed the jury, among other things, that, in estimating the damage to the defendant, the jury should not take into consideration "the risks of damage by fires from passing locomotives," and this was assigned as error. This court, speaking through McFarlane, J., said: "It is true, as a general proposition, damages should be assessed on the assumption that the road will be properly constructed and operated, and that it will comply with all the laws of the state regulating its construction, management, and operation. For failure of duty in these respects, it will be liable to an action at common law, or the landowner will have such remedy as may be provided by statute. [Citing cases.] Notwithstanding these settled principles which apply generally, we are of the opinion that the facts in this case are exceptional, and that the instructions as limited by the court were proper." The court then discussed the situation of the remaining portion of the land, the risks that would be incurred in the operation of the defendant's mining plant, and then said: "So it will be seen that the general rule cannot, in justice, be applied to its full extent, under the facts in this case. It would not be proper to estimate the possible damage from fires or injuries to persons. Neither may ever occur, and to take them into the estimate would be mere speculation. We think they may be properly considered, however, in so far as they tend to depreciate the value of the whole property, and to affect the proposed changes, but no further. [Citing cases.]"

Mathews v. Railroad, 121 Mo. 298, 24 S W. 591, 25 L. R. A. 161, was an action for damages caused to the improvements on the plaintiff's property by fire escaping from passing trains. The petition was in two counts; the first a count at common law, and the second a count based upon a statute, now section 1111, Rev. St. 1899, making railroad companies responsible for all damages caused by fire communicated from locomotive engines. The defendant pleaded the unconstitutionality of the statute. Upon the trial the defendant offered to prove that, when the right of way was acquired by condemnation, the damages that might be caused by fire from locomotive engines were included in the compensation allowed plaintiff, and asked the court to instruct the jury that, if the commissioners in the condemnation proceeding took into consideration the danger to plaintiff's property by accidental fire, the plaintiff could not recover. Speaking to that question this court, per Gantt, J., said: "When a part of a tract of land is taken for railroad purposes under condemnation proceedings, the jury or commissioners may properly take into consideration the risk from fire to the buildings, fences, timber, or crops upon the remainder, in so far and to the extent only that it depreciates the value of the property, but compensation for a probable or future loss by fire is entirely too speculative and remote to be made the basis of damages." The court then cited and quoted from Railroad v. McGrew, supra, and then added: "The plaintiff's claim before the commissioners was damage from the risk of fire. In so far as that risk affected the value of his property not taken by depreciating it, it was a proper claim. There was nothing to show that it was unjustly extended to an estimate of damages that might accrue at some future time, or might never occur. ...