St. Louis Belt & Terminal R. Co. v. Cartan Real Estate Co.

• Decision Date: 11 June 1907
• Court: Missouri Supreme Court
• Parties: ST. LOUIS BELT & TERMINAL R. CO. v. CARTAN REAL ESTATE CO.

103 S.W. 519

204 Mo. 565

ST. LOUIS BELT & TERMINAL R. CO. v. CARTAN REAL ESTATE CO.

Supreme Court of Missouri, Division No. 2.

June 11, 1907.

1. EMINENT DOMAIN—PROCEEDINGS FOR ASSESSMENT OF DAMAGES—APPEAL—VERDICT —CONCLUSIVENESS.

Where, in proceedings to condemn land, the evidence on the issue of damages was conflicting, and there was evidence to sustain the damages awarded, the Supreme Court will not disturb the verdict.

2. SAME—EVIDENCE OF DAMAGES — ADMISSIBILITY.

In proceedings to condemn land for a railroad right of way, the owner cannot establish the value of a quarry on the land, as personal property, separate from the land.

3. NEW TRIAL—MISCONDUCT OF JURORS—DISCRETION OF TRIAL COURT.

On a motion for a new trial on the ground of misconduct of jurors, the affidavits in support of the motion showed that an agent of the successful party during the trial treated three of the jurors to beer in a saloon, and that a juror and the agent held a serious private conversation. The opposing affidavits proved that the agent was not in the employ of the successful party; that the jurors did not remember that the alleged agent was sworn as a witness, as he was not examined; and that the case was not discussed. The jurors were men of good character and occupied responsible positions as business men. Held, that the trial court did not abuse its discretion in denying a motion for a new trial.

4. APPEAL—NEW TRIAL—MOTION—GROUNDS —REVIEW.

Improper conduct on the part of the counsel of the successful party, not made a ground for a new trial, is not reviewable on appeal.

Appeal from Circuit Court, Franklin County; W. A. Davidson, Judge.

Condemnation proceedings by the St. Louis Belt & Terminal Railroad Company against the Cartan Real Estate Company. From a judgment awarding damages, defendant appeals. Affirmed.

A. R. Taylor, James Booth, and Howard Taylor, for appellant. J. E. McKeighan and J. P. McBaine for respondent.

GANTT, J.

This is an appeal from the circuit court of Franklin county in a condemnation proceeding, wherein the plaintiff sought to condemn a right over and through a certain tract of land situate in the county of St. Louis, and known locally as the "Cartan Tract," and containing about 74 acres. The proposed right of way runs from the northwest corner to the southeast corner. Previous to the commencement of this action, the defendant had laid off 13.44 acres as a subdivision, running across the northern end of the tract, into lots. Through this subdivision the St. Louis & Meramec River Railroad ran, bisecting the subdivision from east to west from the Big Bend Road on the east to the west line of the tract. This subdivision, together with the land lying north of this proposed right of way, aggregated 37 acres. The right of way of the Missouri Pacific Railway Company also runs through the tract from east to west, and that portion of the land north of the Missouri Pacific right of way and west of the proposed right of way of plaintiff is about 10 acres, and there is a fractional piece of three-fourths of an acre just southwest of the proposed right of way and along the Laclede Station Road. South of the Missouri Pacific and of the proposed right of way of plaintiff is a tract of 15 acres. Between the switch and Missouri Pacific is a triangular piece of 2 acres, and east of the proposed right of way and south of the Missouri Pacific is another triangular piece of 1½ acres. The whole will appear from an accompanying plat.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The land sought to be taken from the plaintiff's right of way and spur track amounts to about 10 acres. This action was commenced in St. Louis county on proper petition in ordinary form, and was duly served and commissioners appointed to assess damages to defendant, and said commissioners in their report assessed defendant's damages at $40,000. Both sides filed exceptions, and defendant demanded a jury, and prayed for a change of venue, which was granted to Franklin county. On a trial before the circuit court and a jury, the defendant's damages were assessed at $15,189. A number of witnesses for the plaintiff company testified that the land was worth from $750 to $1,000 per acre, and that for the land taken and the damage to the remainder the total damage was $10,250. Counsel for defendant concede that it cannot be said that there was no evidence to sustain the verdict, but submits it is shockingly in conflict with the weight of the evidence, and ought not to stand, unless the trial was fair and the proceedings untainted. We shall make no attempt to reconcile the hopelessly conflicting testimony. On the part of the defendant, its witnesses estimated its damages all the way from $80,000 to $102,583; whereas, the testimony for plaintiff tended to show that the 10 acres actually appropriated was worth from $700 to $800 an acre, and the other tracts were damaged from $2,500 to $3,000, or a total of $10,500 or $11,000. Defendant's witnesses, the major part of whom were real estate dealers in the city of St. Louis, estimated the whole tract at $2,000 per acre. The wide divergence between the witnesses can be explained to some extent by the fact that nearly all of defendant's witnesses lived in the city of St. Louis, and it may their views as to values were unconsciously affected by their knowledge of values in the city. None of them, except Mr. John W. Gibson, had any special knowledge of this tract, or any particular experience in the sale of realty in that neighborhood. Mr. Gibson had sold 137 feet near Maplewood, which was considered a choice tract for that vicinity. This piece was within two blocks east and one block north of the Cartan tract, and sold for $20 per foot, or $3,000 per acre; but streets were already laid out, and the grading done, and it was within a block and a half of Maplewood. It would seem that Mr. Cartan and his witnesses estimated the value largely upon a rock quarry on the land. On the other hand, plaintiff's witnesses lived in St. Louis county, and many of them near this tract, and a number of them had had actual experience in the sale of suburban lands. There was much evidence that the large tract north and east of the proposed right of way had numerous sink holes in it, which would render it very expensive to grade and make desirable for building lots. The tract was already cut up by the Meramec Railroad and the Missouri Pacific, and was rough and broken. It was the peculiar province of the jury to take this contradictory evidence into consideration, and to weigh it, and, as it must be conceded there was much evidence to sustain the verdict, this court cannot undertake, without encroaching upon the right of the jury, to weigh the testimony and disregard the verdict. This is too plain for discussion or further comment. Addressing ourselves, then, to the errors assigned for the reversal of the judgment, we find they can be reduced to three, and we will consider them in the order of the brief.

1. The exclusion of the testimony of Edward Rapp as to the value of the building stone in the quarry on the land is counted on as reversible error. This witness testified that he knew the quarry in the land lying west of the Big Bend Road and south of the Missouri Pacific. He was then asked if from his observations, seeing the stone, its out-croppings, and where the quarry had...